New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 165457

Student’s Name:

District:

Hearing Requested By: Parent

Date of Hearing: September 27, 2017

November 13, 2017

June 28, 2018

July 30, 2018

Actual Record Closed Date: March 4, 2019

Hearing Officer: Amy Lynne Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 27, 2017

Advocate — Parents

Mother — Parents

Chairperson’s Designee, — DOE

Assistant Principal, — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 13, 2017

Advocate — Parents

Mother — Parents

Principal — Parents

(via telephone)

Chairperson’s Designee, — DOE

Special Education Teacher, — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 28, 2018

Advocate — Parents

Educational Director — Parents

(via telephone)

Chairperson’s Designee, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 30, 2018

Advocate — Parents

Mother — Parents

Chairperson’s Designee, — DOE

INTROD CTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding The hearing was convened at the written request of the Parent by letter dated February 10, 2017. (Exhibit

A) The hearing was held on September 27, 2017, November 13, 2017, June 28, 2018, and July 30, 2018, at the Department of Education (“DOE”) offices located at 131 Livingston Street, Brooklyn, New York. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.

In scheduling the hearing date, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

BACKGRO ND

At the beginning of the 2016-2017 school year, was a entering

5th grade. He attended (“ ”) throughout

that school year. He had been classified by the DOE’s Committee on Special Education (“CSE”) as “emotionally disturbed.” He has a diagnosis of Autism Spectrum Disorder.

The CSE convened on March 8, 2016, and created an IEP for for the 2016-2017 school year. (Exhibit 14) The CSE’s recommendation was placement in a District 75 program in a 8:1:1 classroom along with the related services of speech and language therapy and counseling. The CSE also recommended a one-to-one paraprofessional for Case No. 165457

The Parent asserts that the DOE failed to provide a Free Appropriate Public Education (“FAPE”) to for the 2016-2017 school year and is seeking tuition funding for the unilateral private placement at . By letter dated August 25, 2016, the Parent notified the DOE that she would be enrolling in the program and requesting funding from the DOE on the basis that the DOE had failed to offer a FAPE to (Exhibit H) By letter dated February 10, 2017, the Parent requested an impartial hearing.

(Exhibit A)

POSITIONS OF THE PARTIES

THE DOE’S CASE

is an Assistant Principal and Curriculum Director for the DOE’s eight cites . The middle school has approximately 70 students and has nine classrooms with a 6:1:1 ratio and four classrooms with an 8:1:1 ratio. The school is contained on one floor, within a general education building. There are two general education schools in the building, which are housed on the other two floors.

students interact with the general education students “as appropriate.”

explained that there is different Assistant Principal who is responsible for coordination of the middle school program. The students in the 8:1:1 classes are typically classified as students with autism, with some exceptions. (T. 21-27; 29-30)

testified that her familiarity with is solely based upon reading his IEP and some reports from . She has never met with or spoken with anyone who has instructed him. She stated that, based upon the IEP, would “be a perfect match” for ’s middle school site in . His IEP goals and objectives are “very typical” of some of our students and there are programs that would address those academic goals. His related service mandates could be implemented at the school. The school has a 12-month program. believes that could “function” and handle the curriculum at . (T. 24; 27-28; 33-34)

is a classroom special education teacher at .

was teacher in the 2015-2016 school year, as a fourth grader. He was in an 8:1:1 class of third and fourth graders. He had a “rocky start” in the beginning of the year, since it was a new environment, but was doing well by late November or December.

had a one-to-one crisis paraprofessional who shadowed him and worked with him throughout the day, providing one-to-one academic assistance along with .

(T. 43-47)

testified that she served as the District Representative for the CSE during the meeting of March 8, 2016. She listed the meeting’s participants. She explained that the program recommendation made for was based on his performance from September through the date of the meeting. The recommendation was to continue in the 8:1:1 classroom with the crisis paraprofessional because it was a more structured smaller classroom and gave him the one-to-one attention of a paraprofessional. The recommendation also provided for speech therapy and counseling, each provided individually and in a group. The CSE decertified from occupational therapy since he no longer needed it. stated that she agreed with the recommendation of the CSE. She also stated that the Parent agreed with both the 8:1:1 class and the related services. She did not recall if the Parent expressed any concerns at the meeting. (DOE Exhibit 14; T. 47-56)

When was asked if she had seen evaluation from prior to the meeting, she responded that she had not seen it and does not know if anyone on the CSE team had seen it. She could not explain how it could have been referenced in the IEP and she was not aware of it. She did not recall any discussion of an autism diagnosis or of changing his classification and stated that the CSE continued his classification of emotionally disturbed because it was on his prior IEP from his prior school.

confirmed that had recurring issues of a refusal to do work, aggression towards other students and staff; with kicking, pinching and pushing other students. If work was difficult for he would shut down. (DOE Exhibit 18; T. 61-67) testified that in February of the 2015-2016 school year, a behavior intervention plan (“BIP”) was developed for by her, the guidance counselors and the related service providers that worked with him, in order for him to “cope appropriately with his emotions and for him to interact appropriately with his peers and staff.” She stated that she agrees with the statement in the BIP that was “oppositional and aggressive.” (DOE Exhibit 22; T. 73-74)

THE PARENT’S CASE

has been the principal of for seventeen years. He explained that is housed within a general education school. students have lunch and recess with the students from the general education school. During the 2016-2017 school year, 27 students were enrolled in the program. There are two educational directors of the school. All teachers at are certified and licensed by New York State to teach special education. There is a maximum of eight students in a classroom, with a head teacher and an assistant teacher. described the application process. He stated that was accepted to the school because it was determined from the admissions process that the school could meet his education needs. There was an extensive evaluation that diagnosed on the autism spectrum. (T. 81-86; 94) During the 2016-2017 school year, was in a classroom of six students. His teacher had a master’s degree in special education and his assistant teacher was in a master’s program for special education. (T. 86-87; 105)

observed in his classroom, spoke with his teachers and reviewed reports concerning him. He described as attentional challenged. He had a difficult time staying focused and on task. He needed a small class setting and small individualized program. has expressive and receptive language delays and practice language issues, which were addressed in speech therapy and in the classroom. did not exhibit significant behavior issues that impacted his ability to learn. The school did not find that required a crisis management professional. (T. 87-88)

believes that was an appropriate special eduction program for He made significant progress in academics, his ability to stay focused, and with his pragmatic language issues. “Across the board, he made very significant progress.” (T. 92)

confirmed that the total tuition for to attend for the 2016- 2017 school year was $42,300, which was broken down into the base tuition of $36,000 and $6,300 for related services. The Parent paid $5,000 towards the tuition and still owes

$37,300. (Parent Exhibits M, N, Q, S; T. 89-92) explained that a portion of school day is spent in religious classes. He stated that prayers, ethics, portion, the , and bible are religion-based. The base tuition of $36,000 is for both the secular and religious classes. (Parent Exhibit L; T. 96-98).

has worked at for almost twenty years. Since 2001, she has served as educational director. During the 2016-2017 school year, supervised class and his teachers. She observed in his classroom and discussed his academic and social functioning with his teacher. She explained that the six students in the class ranged from fifth through seventh graders. She stated that when was first admitted into , according to the documentation she received, he was at a third grade reading level and a fourth grade math level. It sounded like he was really struggling socially and emotionally. He was struggling academically and there were a lot of behavioral difficulties. He was aggressive and very frustrated. When he started at , the school had a plan in place to deal with his behaviors. There was a school-wide behavior program and a very strict behavior program in place for his class. The class had a tremendous amount of structure with six students and two teachers.

testified that is a very sweet, kind and considerate boy, and with a lot of structure, including knowing what is coming up in advance, they began to see progress. Although there were incidents during which could become disrespectful, the aggressive behaviors that had been described from his previous setting were never seen at .

What they observed was verbal and the structures in place helped him improve over the course of the year. described challenges, how they were addressed and the methods that worked for him. She also described the manner in which any behavioral situations were handled. (T. 120-129) testified that did not require a paraprofessional for his behavior and that, had he needed one, one would have been provided. They felt it was too restrictive. stated that class size is absolutely an issue for because he is very distractible. Large groups of children can be overwhelming for him and he does not have the social skills to navigate in that setting.

He also needs the attention that he gets from being in a much smaller class. (T. 131-132)

reviewed class schedule. She explained that, “ reading and comprehension” does not have religious content. The students read non-religious short stories in focusing on the technical decoding skills in and basic comprehension. “ language skills” is non-religious and is focused on conversational skills. “Journal and Silent reading” is a secular subject.

stated that, “ethics,” “ ,” “ ,” “bible,” and “weekly portion” are religious subjects. (Parent Exhibit L; T. 132-139; 145-146) stated that, in addition to lunch and recess with the general education students, there is a monthly integration activity between the special education and general education students, and would participate in other non-academic activities with general education students, such as school assemblies and morning prayers. (T. 143-144)

stated that had demonstrated academic progress during the 2016-2017 school year, including an increase in his math and reading levels. He also made progress emotionally and socially. He began to make friendships and developed more positive interactions with his peers. There was also a decrease in the number of disrespectful incidents over the course of the year. When would feel frustrated, he learned to regroup and get himself back on track more quickly. testified that, based on the progress made, she is “confident that it [ ] was a good placement for him.” (T. 139-143)

is mother. She described difficulties from birth and the services he has received throughout his chidhood. received early intervention services and then attended preschool through the Committee on Preschool Special Education, at which he received special education services. Upon turning five and entering kindergarten, the CSE recommended placement in an Integrated Co-Teaching class for and he attended his zoned public school. had a very difficult time in that setting which was a large school and a large classroom size of 25 to 28 children. The teachers, therapists and principal of the school asked the Parent for permission to shorten his school day since he did not have appropriate readiness skills and was extremely disruptive in the classroom. The Parent disagreed. Despite those concerns and academic deficiencies, was promoted to first grade and the CSE again recommended placement in an ICT class and the class would have had over 30 students. The Parent did not accept the recommended program and placement. She explained that during his kindergarten year, he cried all the time and really struggled. She stated that the setting was extremely loud and he did not function or “survive” there. To avoid going to school, he would undress himself in the car on the way to school or make himself so sick he would throw up or urinate all over his clothes. testified that she could not put him back into that placement. For the following two school years, enrolled in private special education schools and paid the tuition herself. (T. 154-162)

For the 2015-2016 school year, approached the DOE for a public placement for for fourth grade and a CSE meeting was held. The CSE recommended a District 75 program in an 8:1:1 classroom with a one-to-one paraprofessional, and enrolled in the recommended program at . She explained that had a very difficult time in the program. The class was taught at a fourth grade level, which was one to two grade levels higher than level. He did not comprehend what was being asked of him and he shut down a lot. He had difficulty with the occupational therapist, the paraprofessional and in the classroom. She explained that the occupational therapist terminated services because she felt he had met the requirements and, since he did not feel she had a connection or rapport with him, there was no more work they could do together. did not agree that he no longer needed occupational therapy services. When discussed it with the school, knowing that felt the therapist did not like him and that there were skills he needed and wants to learn, the school’s response was that it was not a good working situation and there was no other therapist to take his case. (T. 162-168)

explained that she had evaluated because she felt there needed to be a better understanding of She paid for the evaluation which was conducted by the . As a result of the evaluation, was diagnosed with autism, anxiety and two non-descript mood disorders. stated that she shared the evaluation with school, it was available on the date of the CSE meeting, and that parts of it were discussed at the meeting. wanted the CSE to understand that was autistic and not emotionally disturbed, which is how they had classified him. The CSE’s response was that they felt he was emotionally disturbed and it did not matter whether he was emotionally disturbed or autistic, because the school had the program for him.

Although requested that the CSE change his classification, they did not.

stated that the CSE did not give any weight to the evaluation and, rather, based their position on their daily observations of him, including being disrespectful, not being able to sit in his seat all the time, and refusing to do work. believed that, “they saw him as being extremely rude and defiant when in reality he would just come home crying that he didn’t understand what was even going on.” also asked the CSE to continue the occupational therapy, which the evaluation had also recommended based on his weak and low muscle tone and the skills he still needed to achieve. At the meeting, occupational therapist said he met his goals and they were terminating the services. (T. 168-175)

explained that the evaluation recommended that be placed in a small setting with a lot of repetition and visuals. He should also have a behavior system with expectations and rewards for periods of a few minutes, which could be built up to longer periods of time. testified that during the 2015-2016 school year she had received many phone calls from teacher saying that he was defiant, had a funk about him, and that they needed to break him so that he would learn and follow the rules. certainly did not agree with the idea of breaking a child in order to get him to understand how to function in every day life. believed that was not provided with an appropriate special education during the 2015-2016 school year. also did not believe that the IEP created for the 2016-2017 school year was appropriate for for that school year. The IEP had a classification of emotionally disturbed and contained goals for someone with that classification. (T. 175-178)

stated that she did not receive a placement letter from the DOE for the 2016-2017 school year. Approximately one week into the school year, received a call from asking where had been, expecting him to be attending the school. provided them documentation regarding his placement at . She was never notified of anything regarding and never received a similar call from as if they had expected him to be attending. (T. 187-188; 190) explained that, for all of these reasons, she placed at for the 2016-2017 school year. She chose the school because they have small classrooms with a teacher and an assistant and there were five children, which would fluctuate between five and seven. The work was on his level, although he was challenged and given help and he was not as frustrated. There are class-wide and individual behavior charts used in the classroom to which he responds very well. There was a chart on desk for the day and he can see what he needs to prepare for and to do in each moment. He is also given breaks to leave the classroom with someone if he needs to take a breather. received the related services of speech therapy and counseling. did not require a paraprofessional in school because he was in a placement that could handle him. They were “rooting for him” and he felt like he was part of something. They lifted him up based on his strengths and were then able to get him to work on what he needed to get done. liked going to school and would be excited to share things with his teachers and classmates. He had special connections with his teachers and can ask for help, which he had never been able to do. The school had a process for handling any episodes by which was held accountable. He was required to create a written plan of how he will handle a similar situation next time, which he had to get signed by the principal, teacher and The classroom charts also help with any negative behavior since he is rewarded a lot with rewards tailored to his individual interests. believes that received an appropriate special education at .

(T. 179-183)

confirmed that she signed an enrollment contract with . The tuition for the 2016-2017 school year was $36,000 and the related services fee was $6,300. She paid $500 per month for ten months, towards the tuition. She testified that her ex- husband did not make any payment towards the tuition, that her 2016 adjusted gross income was $ , that she works as a at a school, and that she has three children. (Parent Exhibits M, O, P; T. 184-186)

FINDINGS OF FACT AND CONCL SIONS OF LAW

The central purpose of the Individuals with Disabilities Education Act (IDEA)

(20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a Free Appropriate Public Education (20 U.S.C. § 1400[d][1][A]; see Schaffer v.

Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-

01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). 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]).

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 parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch.

Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

While the DOE presented a witness who had participated in the CSE meeting and the development of the IEP, her testimony certainly did not establish that the DOE had offered a FAPE to for the 2016-2017 school year. Her testimony was far from sufficient to demonstrate that the DOE had offered a FAPE to testified that she had not seen evaluation from the did not know if anyone on the CSE had seen it, and that she did not recall any discussion about the evaluation or about an autism diagnosis. She stated that the CSE continued his classification of emotionally disturbed because it was on his prior IEP from his prior school. It is highly disturbing that the individual who served as the District Representative and the special education teacher on the CSE, and who was teacher at the time, was unfamiliar with the evaluation and had no idea that was autistic, as formally diagnosed over a year prior to the March 8, 2016, meeting. had been a student in her class for six months at the time of the meeting. Despite the fact that represented the district at the CSE meeting, she could not explain or reconcile how the evaluation and autism diagnosis were referred to in the IEP but she did not know about them. In the IEP, under “Physical Development,” it states that, “His mother has taken him for a private evaluation at . The team at has diagnosed [ ] with Autism Spectrum Disorder (ASD).” This section of the IEP refers to both physical education class and occupational therapy.

Regardless of how this information was incorporated into the IEP, it is there. For the district’s representative and classroom teacher to be unaware at all of it, speaks volumes and certainly calls into question, and casts serious doubt on, the appropriateness of the program was attending at the time. ’s approach to teaching and to handling the behavioral issues she described were based on her belief that he was an emotionally disturbed child, not an autistic child. Her failure to be familiar with an accurate profile of perpetuated her incorrect perception of him, misguided her response to how he presented in the classroom, and very likely adversely impacted his educational experience in her classroom. The inexplicable disconnect between ’s understanding of , on the one hand, and the written acknowledgement on the face of the IEP that had been diagnosed with autism, is beyond troubling. There is no question that, whether through utter inexcusable carelessness, at best, or otherwise, the CSE completely disregarded the diagnostic information and recommendations it had from the evaluation obtained by the Parent from the . The DOE had no information to the contrary, other than daily observations of in the classroom, but still chose to continue the emotionally disturbed classification and tailor the IEP to a child with such a classification. autism diagnosis was completely ignored and, therefore, an appropriate IEP, consistent with his diagnosis, his documented needs and the professional recommendations made, for , as a child with autism who is not emotionally disturbed, could not possibly have been created. The recommendation of the CSE was basically a continuation of the same unsuccessful, inappropriate program from the 2015-2016 school year.

’s testimony, in support of placement at , is confusing, given the absence of any link between and . There is no placement offer for in the record. Interestingly, testified that students in the 8:1:1 classes in the middle school are typically classified as students with autism, with some exceptions. Perhaps, , who never met , somehow knew about his autism diagnosis, even though , his classroom teacher, claimed she did not. Or, perhaps she considered him to be one of the exceptions, since his classification was emotionally disturbed. If so, then her assessment that, based on his IEP, he would be a

“perfect match” for the program, was informed by an IEP that was created for an emotionally disturbed child and not for Nevertheless, it is unclear why she was presented as a witness and, clearly, with no placement offer in the record for her testimony, it is completely irrelevant and disregarded.

For the foregoing reasons, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent’s case.

The Parent has the burden of establishing the appropriateness of the program she has provided to (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, she must demonstrate that the services provided offer an educational program which meets the student’s special education needs. [Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.

3d 105 (2d Cir. 2007)] The standard used to measure the appropriateness of the Parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000)

“The issue turns on whether a placement - public or private - is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112) The Parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])

The DOE has not made any specific challenge to the appropriateness of the program, with the exception of noting the religious components of the program. No evidence has been offered to dispute the testimony of the educational professionals who have worked with , or the testimony of his mother. The appropriateness of unilateral placement at was not addressed during the DOE’s closing argument. The

DOE maintained that is not an approved school and that there were no typically-developing students in the program to offer the opportunity to be with other students from the community. These arguments are rejected based on the record. In the DOE’s closing argument, it was also noted that the program has a mixture of religious and non-religious classes and, therefore, if there is an order in the Parent’s favor, it should be limited to the “secular portion of school schedule for reimbursement.” (T. 201)

The evaluation from provided a diagnosis of Autism Spectrum Disorder, accompanied by some anxiety and mood symptoms. Several recommendations were made with regard to the classroom components requires. The record clearly demonstrates that program met those requirements.

The Parent’s position that the program was appropriate for and that it allowed him to learn and progress is supported by the record. He made progress academically, socially and emotionally. It has been established that, “[H]is behaviors resulting from his autism diagnosis were addressed, were managed so that he could progress educationally.” (T. 198)

I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. Those who are familiar with have all determined and agree that the program was appropriate for for Case No. 165457 the 2016-2017 school year. , , and provided persuasive testimony and evidence to this effect. The evaluation further supports the Parent’s case.

The program was reasonably calculated to allow to make meaningful progress and to address his individual needs. In fact, made meaningful progress throughout the school year.

The final criterion for an award of funding or reimbursement is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v.

Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).

There is no basis on which to reduce or modify the remedy for the Parent. The

DOE did not offer any equitable consideration that would preclude an order in favor of the Parent.

ORDER

1. The DOE shall directly fund tuition at for the 2016-2017 school year reduced by a proportionate percentage equal to the percentage of instruction that has been deemed to be for religious purposes.

2. The components of instruction that have been deemed to be for religious purposes are: morning prayers, afternoon prayers, ethics, , , bible, and weekly portion.

3. The DOE shall directly fund the related services provided to by for the 2016-2017 school year in full.

3. The $5,000 paid toward the tuition by the Parent shall be deemed payment toward the religious portion of the tuition and, therefore, will not be reimbursed.

Dated: April 1, 2019

AMY LYNNE ITZLA, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD

DEPARTMENT OF EDUCATION

14 Individualized Education Plan (IEP), 3/8/16, 20 pages

16 Conference Minutes, 3/19/15, 3 pages

17 Prior Written Notice (Notice of Recommendation, 3/10/16, 4 pages

18 Diagnostic consultation by , 1/21/15, 13 pages

19 Annual Student Report 2016-17 Speech Therapy by

, various dates, 2 pages

21 Annual Student Report 2016-17 General Studies by

22 Behavior Intervention Plan, 2/23/16, 5 pages

• The DOE initially had documents marked as Exhibits 1 through 13, yet withdrew them from the DOE’s offer of documents into evidence. • The DOE’s Exhibit 15 was marked for identification only as not admitted into evidence. • The Parent’s Exhibits C, F, G, I, J, and K were omitted from evidence since it was determined that they were also contained in the DOE’s documents and entered into evidence.