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: October 6, 2014

October 31, 2014

Actual Record Closed Date: January 12, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 6, 2014

Advocate — Student

Mother — Student

Teacher, (via telephone) — Student

DOE Representative — DOE

CSE, Teacher Assigned (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 31, 2014

Parent Advocate — Student

Parents

Social Worker (via telephone) — Student

(via telephone) — Student

DOE Representative — DOE

Introduction: — DOE

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC § 1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by the Parent (“Parent”) on behalf of , the student (“ ”) through their advocate, , from , by filing a Due Process Complaint dated July 24, 2014.

The Parent is alleging that her daughter, , was denied a free and appropriate public education (“FAPE”) for the 2013-14 school year and is seeking tuition for her unilateral placement at for said year.

There were two (2) days of hearings in this matter. Hearings were conducted on October 6, 2014 and October 31, 2014. Extensions were granted in this case making the final compliance date January 12, 2015. The parties had requested that written closing statements be prepared by the parties and were due on November 24, 2014. The District did not submit a closing statement. A list of Exhibits is attached as Exhibit A. The

Parent, the District and the Impartial Hearing Officer all submitted exhibits.

Background:

This case involved a ( ) year old student. During the 2013-14 school year, attended where the Student was unilaterally placed by the

Parens.

With respect to the 2013-14 school year, an Individualized Education Program (“IEP”) was developed on February 27, 2013. D-1. Pursuant to the February 27th IEP, the following recommendations were made:

1. , ;

2. , , time per week, each time;

3. , , times per week for each time; and

4. - , , times per week for each time.

The District issued a Final Notice of Recommendation which was dated May 29, 2013. D-2. It stated that the offered school shall be .

The Parent entered into an Enrollment Contract for with on May 21, 2013 for the 2013-14 school year. P-G.

The Parent filed a Due Process Complaint on July 24, 2014. P-A. I was appointed as an Impartial Hearing Officer on July 29, 2014.

Position of the Parties

Parents’ Case

The Parent called four (4) witnesses, , ,

and the Parent, and placed ten (10) documents in evidence. P-A – P-K.

The first witness for the Parent was . Tr. 78. She has a Master’s degree in Special Education and is New York State certified in special education. Tr. 78.

She has been working at since 2001 and is a master teacher. Tr. 79. is a special education school that covered grades through during the 2013-2014 school year. Tr. 80. There were approximately children at during the 2013-2014 school year and there was class per grade. Tr. 81. The types of needs range from , and

, Tr. 81

Ms. was ’s teacher during the 2013-2014 school year and there were students in her class and an assistant. For and , there were additional adults. Tr. 82. At the beginning of the 2013-2014 school year was at a beginning level. Ms. stated that she had difficulty . Tr. 83. In , Ms. class started with an level book. Tr. 83. Although is not on an level in , . Tr. 83. Ms. didn’t know what ’s grade level was for , but she stated that was able to , . Tr. 84. Both and are done in where can receive . Tr. 83. In , she was with other children. Tr. 84. She needed because she had and then she could work independently. Tr. 85. Ms. stated that she was her teacher and the other children in the class worked with assistants. Tr. 85. She said that she taught the children in the group, then she gave them work to do, and then worked with each child . Tr. 86.

In , Ms. stated that was in a with other student and Mrs. , a special education teacher. Tr. 86-87. They used a , etc. Tr. 86. They used . Tr. 86. In a , Ms. says is able to get the . Tr. 87. She

indicated that gets . Tr. 87

, Ms. stated that had

. Tr. 87

. Tr. 88.

. Tr. 88. Each child had different goals to work on. Tr. 88 also Tr. 88. The plan is not embodied in a specific document Tr. 90

’s goal’s included

. Tr. 90-91. The social worker is and works for . Tr. 91.

Ms. testified that she is supervised by Ms. , who comes into class daily, sits in on groups, and works with individual students. The students’ levels in the class ranged from to and the students were similar to and all had . Tr. 93.

The curriculum that was used at was a modified version of the . Tr. 93. Ms. stated that is from and then the schedule included , or , , and then or . P-E. Ms. stated that she only . Tr. 99 She stated that she “ ”, nor if the teacher is a special education teacher, but she speaks to the teacher a few times a week Tr. 101- 102.

Ms. stated that took a ; she

, had , and had

Tr. 99. Ms. felt that the and number of adults were a significant factor for Tr. 99. She also indicated that also received , , and from employees at Ms. believes that demonstrated progress during the 2013-2014 school year. Progress was measured through teacher created materials and informal evaluation. Tr. 100.

On cross examination, Ms. stated that during session she was the main teacher and had an assistant who was in the middle of her B.A. Tr. 103. For was put in a with a special education teacher named Mrs. and for she was with Ms. . Tr. 105. She stated that for and there were groups. Tr. 106. She testified that in she gave approximately minutes of attention and in she did not know since she was not her teacher. Tr.

109.

is housed in a building by itself and there are no opportunities. Tr. 110. For related services can be at any time except not during or , Tr. 114. Ms. stated that had a set schedule for for related services but she could not remember what it was. Ms. was trained as a teacher at Tr. 116.

Ms. stated that she has seen ’s IEP and the goals. She stated that they take a look at it and then the supervisor gives her the curriculum and tells her what to work on with each student. Tr. 116. The supervisor also modifies the .

Tr. 116. For the only measure used to show progress is and for it’s . Tr. 112. are given a year. Tr. 119. She stated that the curriculum is modified and so are the grades. Tr. 121. In , moved up grade level during the 2013-2014 school year. Tr. 122. She does well in and with the students in her class and received a and , respectively. Tr. 123. In and she was a bit and always

. Tr. 123. Ms. stated that within the , issues did not impede her learning. Tr. 125.

was ’s teacher in the afternoon, however, Ms. did not know his credentials. Tr. 127. She would meet for several minutes or speak by phone or times a week. Ms. academic day began at after and ended at . Tr. 128. She stated that she was not familiar with the curriculum in . Tr. 128. The psychologist created the program but Ms. implemented it. Tr. 135. It was generic for the class but there were specifics goals for each child. Tr. 135. She stated that the psychologist called the students out individually a few times a year. Tr. 135. Ms. never felt the need to request additional services for and her issues were manageable within the classroom. Tr. 136.

The next witness was , the social worker at . Tr.

145. She provided services to Tr. 146. She was seen in a group of .

Tr. 147. Although she was slated for the team determined she would benefit more from a . Tr. 148. She did have a slot for time if she needed it and she did use it sometimes. Tr. 149.

The next witness was . She has a Master’s degree in and and is New York State certified. She was employed as a for during the 2013-2014 school year. She was employed and paid by and provided services to Tr. 154. received in a of times a week. Tr. 155. Although the IEP provided for individual in Ms. professional judgment she benefitted more from group due to her issues with . Tr. 156.

The last witness is the Parent. Tr. 159. She stated that she attended the Committee on Special Education (CSE) meeting dated February 27, 2013 by phone. She stated that she did not agree with the placement that was recommended. She stated that requires more than adult in a room since she is very . Tr. 163. During the 2013-14 school year there were students and a teacher and an aide. Tr. 164. There was also someone else coming in for . Tr. 165. She stated that she does not believe that her daughter has

She had

. At the CSE

meeting, ’s teacher, Ms. , appeared by phone. Tr. 168. She stated that she doesn’t recall discussing ’s

Tr. 170. The Parent indicated that she did not think the goals on ’s IEP could be met in a with students and teacher. The Parent testified that benefitted from an . Tr. 171.

has been at for years. The Parent indicated that she is receiving an appropriate education at and making progress. Tr. 174. The

Parent testified that based on the tuition contract she is obligated to pay for the 2013-2014 school year and has paid . Tr. 174-175; P-G.

On cross examination the Parent stated that she did not object to the placement at the CSE meeting. She went to look at it but didn’t think it would be appropriate for .

Tr. 180. She also indicated that did not discuss changes in the related services until after the CSE meeting when was suggested. Tr. 179. She did not ask for a reconvene nor did the CSE to change the IEP. Tr.

181. The Parent testified that the District did not have any knowledge of changes to ’s related services. Tr. 181. She also did not voice any concerns about the placement or goals at the CSE meeting. Tr. 182.

The Parent testified that she signed the contract for before she received a placement because she wanted to be in that setting. Tr. 184.

The Parent stated that she meets with ’s teachers formally times a year.

Tr. 185. At other times, if she needs to speak to them she would call and leave a message.

Tr. 186. She stated that she spoke to them . Tr. 185. The Parent indicated that attended with Dr. , the psychologist. She did not check with the social worker, Ms. . Tr. 187. This was initiated by the Parent reaching out to the school, however, was not brought up at the IEP meeting. Tr.

189. The Parent indicated that Ms. is there for the portion of the day and for the portion. Tr. 189. The Parent indicated that she has made progress in , has made , and can . Tr. 191. She also shows initiative to

Tr. 196.

District’s Case

The District called one witness, . He has his state certification in elementary education – nursery through sixth grade, special education – kindergarten through twelfth grade, and advanced certification as a school district leader and administrator. Tr. 35. He has been employed at CSE for the past five years as a teacher assigned. His responsibilities include being part of an IEP team that develops and holds

IEP conferences. Tr. 36.

Mr. testified that he is familiar with since he was part of her IEP meeting dated February 7, 2013. D-1. He served as the teacher and the District representative at that meeting. Tr. 37. He stated that the CSE team was duly constituted. Tr. 38. The information that was taken into consideration in generating the present levels of performance section of the IEP included the school progress reports from January 2013 as well as the information Ms. , ’s teacher presented at the meeting. Tr. 38. He also indicated that the Parent participated at the meeting and pointed out her input at the meeting. Tr. 39. Mr. testified that the on the IEP came directly from the teacher, and from the school progress report. Tr. 41. The goals were generated specifically for and were taken from the school progress report, the teacher’s report at the meeting, a and service report dated January 27, 2013 (D-3), a report dated February 22, 2013. (D-5), and an report dated February 19, 2013. D-6. Tr. 42.

Mr. stated that he believed the related service providers were from within but were contracted providers. Tr. 43. Mr. testified that the goals were individualized by the criteria used, the methods used to measure progress, and how often they were measured. Tr. 43.

Mr. testified that the first goal is a goal and the is the standard they would expect to meet since she was at a level. Tr. 44. The second goal addressed skills level. Tr. 46. The next goal was a goal and the , ’s teacher. Tr. 46. Mr. stated that the related service goals came from the reports from the related service providers. Tr. 47.

Mr. stated that the team made a recommendation for a .

Tr. 48. They made the recommendation since her level and on a level. Tr. 48. The related services that were mandated were based on the progress reports. Tr. 48. The providers were not at the meeting. Tr. 49. The CSE also gave the student testing accommodations. Tr. 50. Mr. testified that there were no concerns raised by the Parent at the meeting with respect to placement, testing recommendations, or related service mandates. Tr. 50. They also considered a class but thought it was too restrictive and an class but thought it would be for her due to . Tr. 51. For promotional criteria it was of the and standards. Tr. 51.

On cross examination Mr. stated that the Psycho-educational evaluation from April 11, 2011 (D-7) from was available to the CSE. Tr. 55. The school progress report from 2012-2013 was also used which had updated levels. Tr. 58. The progress report indicates that ’s is . Mr. testified that this refers to as was indicated on the Psycho-education evaluation. Tr. 58.

Mr. indicated that was not addressed as a goal but is a byproduct of and if you concentrate on that usually takes care of itself. Tr. 59. He indicated that the goal on the IEP dealt with

. Tr. 60.

Mr. testified that with respect to , the school progress report indicated that benefits from and and at times . Tr. 61. Mr.

indicated that she had to deal with these issues. Tr. 62.

Mr. indicated that he did not recall ’s at , but that it was less than students. Tr. 64. He stated that the team took into account her

. Tr. 65.

On redirect, Mr. indicated that the CSE took into account ’s . Tr. 68. The related services are provided by the DOE at the school and is provided by itself. Tr. 69. Mr.

did state that issues were not addressed in the present levels of performance, social development or in the description of the Student. Tr. 75.

Findings

Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C.

1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme court in School Committee of the Town of Burlington

v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]).

Prong 1 – Appropriateness of District Program The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent.

Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. Of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F.

Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak

v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see, Rowley, 458 U.S.

at 189). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989]

[citations omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …affords the student with an opportunity greater than mere ‘trivial advancement’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v.

Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see, Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Childwith a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

The Parent alleges that the District failed to provide FAPE to the Student and that the CSE’s program recommendation would not be able to meet the Student’s needs and is not reasonably calculated to enable the Student to receive educational benefit. She also alleged that the IEP was procedurally and substantively improper to offer FAPE to I have reviewed all of the testimonial and documentary evidence in this matter and find that the District met its burden. First, the Parent alleged in the Impartial Hearing Request that “it is not clear that the CSE team was properly composed.” Based upon a review of the February 27, 2013 IEP signature page and the testimony of Mr. , the District representative at the meeting and general education teacher, it appears that the CSE team was duly constituted. 20 U.S.C. § 1414(d)(1)(B).

The CSE is required to develop an IEP that accurately reflects the student's special education needs. An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establish annual goals designed to meet the student's needs resulting from the student's disability enabling him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provide for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a 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; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

With respect to what was reviewed at the CSE meeting, Mr. testified that they took into consideration the school progress report dated January 23,

2013(D-4), the and report dated January 27, 2013 (D-3), the report dated February 22, 2013 (D-5), and an report dated February 19, 2013 (D-6), as well as the information provided by Ms. and the Parent at the February 27, 2013 CSE meeting. The Psycho-educational evaluation dated April 11, 2011 was also available at the CSE meeting. Tr. 55. He indicated that this was all taken into consideration in generating the present levels of performance, the goals, and other aspects of the IEP. Tr. 38-47. Mr. indicated that the goals were specific for and were further individualized by the criteria used, the methods used to measure progress, and how often they were measured. Tr. 43. In terms of , Mr.

indicated that they came directly from the school progress report and the report of the teacher and included: “ ” D-1. Mr. testified that the student’s

.In terms of

, an issue raised in the student’s progress report, Mr. stated that is a byproduct of and that by concentrating on , would take care of itself. Tr. 61. I have carefully reviewed the February 27th IEP and the goals contained in said IEP and conclude that the goals as written adequately target the student’s identified needs, were reasonably calculated to confer educational benefit and were appropriately individualized for the Student.

With respect to the placement recommendation of a class, Mr. stated that he made that recommendation since her was within the with a level on a level and on a level and based upon the school progress report and input of ’s teacher and the Parent. Tr. 48. Mr.

testified that this would address her as indicated on her student progress report from and the related services would support her special education needs as well. D-4. The related service mandates were based on the related service progress reports that were prepared prior to the CSE meeting. Tr. 48. The student was also given testing accommodations and the promotional criteria were modified to meet her academic needs. Mr. testified that no concerns were raised by the Parent or the teacher at the meeting with respect to the placement, testing accommodations, related service mandates, or promotional criteria that were recommended on the IEP. Tr.

50. The CSE also considered a :1 class but thought it was too restrictive in addressing ’s academic needs and an class but thought it would be due to and insufficient to address her academic needs in this setting. Tr. 51.

For all of the foregoing reasons, I find that the District provided FAPE to for the 2013-14 school year in the least restrictive environment to meet her special education needs and provide her with academic benefit. Hence it is not necessary to consider

Prongs 2 and 3. See, Application of a Child with a Disability. Appeal No. 02-092.

However, I will do so to complete the record.

Prong 2 – Appropriateness of Parent Placement

Under the second prong of Burlington, the Parent bears the burden of proving the appropriateness of the Parents’ unilateral placement of at . In order to meet that burden, the Parent must show that offered an educational program designed to meet ’s special education needs. Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The

Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression.

Gagliardo, 489 F.3d at 112. “To qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo, 489 R.3d at 112, See, Frank G., 459 F.3d at 364-65). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010). It should be noted, however, that while evidence of progress is relevant, it does not in and of itself establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v.

Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”].

The Parent has met her burden in showing that was an appropriate placement for The was to meet ’s special education needs. In , she was in a with other students and was able to have everything

. Tr. 83 .

. In , she also worked in a worked with

. Tr. 86. The curriculum that was used at was a modified version of the and Ms. supervisor

. Tr. 93. In all other classes there was a teacher and an aide. Ms.

had her certification in special education as did the supervisor. . She also is provided with the related services of , , and at . Although the IEP mandates were not being met, the and social worker believe that the services provided by them were appropriate and sufficient to meet the student’s needs. Although not dispositive, there is evidence from her teacher and the Parent that has made progress while at during the 2013-14 school year. In addition, her report card for the 2013-14 school year indicates that she excelled in her classes. P-F. It must be noted that the portion of the day at was from ( on and ( ).

Therefore in the event that the District had not met its burden under Prong 1 the Parent met their burden in proving the appropriateness of .

Prong 3 – Equitable Considerations

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

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

I find that although the Parent participated in the February 27thCSE meeting, she did not, object to the goals, related service mandates or the placement at the CSE meeting and there is no indication that she notified the District of her objections to the placement prior to the filing of the impartial hearing request dated July 24, 2014. Tr. 179-182; P-A. She signed the Enrollment Contract before she received a placement recommendation from the District. P-G; D-2. She said that she was in fact open to the District’s placement. She also said that at that particular time she couldn’t afford .

She indicated that she had kids and she has to pay for all children’s educations.

Tr. 180. Although she stated that after visiting the placement, it wasn’t for , I credit her testimony that she wanted her at exclusively and that had money not been the issue this year, she would not have brought this impartial hearing request. It is clear in her testimony that she wanted at and that had been there for the past years (prior to that, she had attended school in ). In fact she specifically stated that “yes, I wanted her in the school setting, and I would rather be able to pay and not come to the Board of Education and say, “Help me.” I paid all these years and never came for help…This year was a very tough year for us.” Tr. 183-184.

Based upon her actions, in terms of equitable considerations, I find that equitable considerations do not favor the Parent in this matter.

Based upon foregoing I find that the District provided FAPE to for the 2013- 2014 school year. Accordingly, the Parent’s request for tuition reimbursement for for the 2013-2014 is denied in its entirety.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that the Parent’s application for reimbursement of/funding for/direct payment of tuition costs at should not be provided for the 2013-2014 school year and is hereby denied in its entirety.

Dated: January 12, 2015

, ESQ.

Impartial Hearing Officer

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

District’s Exhibits

No. Date Document Pages

1. 2/27/2013 Individualized Education Program (IEP) 14

2. 5/29/2013 Final Notice of Recommendation 1

3. 1/27/2013 & Report 1

4. 1/23/2013 Student Progress Report 2

5. 2/22/2013 Report 1

6. 2/19/2013 Report 2

7. 4/11/2011 Psycho-educational Evaluation 6

Parent’s Exhibits

No. Date Document Pages

A. 7/24/2014 Impartial Hearing Request 4

B. undated Program Description 3

C. 3/27/2013 IEP 13

D. void

E. 2013-2014 Class Schedule 1

F. 2013-2014 Report Card 1

G. 5/21/2013 Enrollment Contract 1

H. 8/19/2014 Affidavit of Payment 1

I. 2013-2014 Parent Proof of Payment 1

J. 2013-2014 Attendance Record 1

K. 2013 Letter 2

Impartial Hearing Officer’s Exhibits

No. Date Document Pages

I. 11/24/2014 Parent’s Closing Statement 11