New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 3

Hearing Requested By: Parent

Date of Hearing: October 20, 2010

February 1, 2011

April 11, 2011

April 15, 2011

Hearing Officer: Veronica Cecilia Odom, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 20, 2010

Attorney — Student

Parents

DR., CSE 10 Chairperson Designee — DOE

MS., School Psychologist (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 1, 2011

ESQ., Attorney — Student

Mother — Student

Psychologist (Via Telephone) — Student

DR., CSE-10 Chairperson Designee — DOE

Social Worker, School (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 11, 2011

Attorney — Student

Parents

DR., Chairperson's Designee, CSE 10 — DOE

Director, The School (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 15, 2011

Attorney — Student

Mother — Student

Clinical Director (Via Telephone) — Student

DR., CSE 10 Chairperson Designee — DOE

Director of Admissions, The School (Via Telephone) — DOE

The matter of. (hereinafter “the student”) came before me for determination on October 20, 2010, February 1, 2011, April 11, 2011, April 15, 2011, in accordance with the provisions of the Individuals with Disabilities Education Act

(IDEA), 20 U.S.C. § 1415(b)(2), and Article 89 of the Education Act of the State of New York. The hearing was requested by the parents on July 9, 2010. The parties were granted additional time to submit post-hearing memoranda. The compliance date was extended as a result of a request for additional hearing dates and for the submission of briefs. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

In a due process notice dated, July 9, 2010, the parent through her attorney, allege that the June 28, 2010 Committee on Education (“CSE”) review meeting was not duly constituted; specifically that no representative from the student’s school, (hereinafter “ ”) was present, (Exh. A) and the parents challenge the appropriateness of the CSE’s placement recommendation, and the reclassification of the student as disturbed from other health impaired. The parents assert that the CSE failed to provide a written offer of placement for the student. They maintain that the student requires the smaller, structured program with the strong therapeutic focus provided at , and request tuition reimbursement or direct payment to for the 2010 to 2011 school year, and the cost of private evaluations, including all costs and fees.

THE POSITION OF THE PARTIES

The District representative, Dr. , maintained that the Department of Education offered the student a free appropriate public education (“FAPE”) for the 20102011 school year in that the student was offered a placement at in a class, and that the student would receive the recommended related services.

The parents’ attorney, , maintained the DOE failed to offer the student FAPE for the 2010-2011 school year, that the School was appropriate, and that the equities favored the parents, and that tuition reimbursement or direct payment should be ordered.

BACKGROUND

The student is a year old female who had been classified as other health impaired (hereinafter “OHI”) at the Individualized Education Program (“IEP”) review meeting on April 7, 2010(Exh. 4), and reclassified as disturbed on June 28, 2010 (Exh. 3). The student is currently placed at The School, a private education school.

DEPARTMENT OF EDUCATION’S CASE

Dr. , the Department of Education (“DOE”) representative placed into the record inter alia, the March 8, 2010 social history update (Exh. 9), the April 7, 2010 IEP and the June 28, 2010 IEP (Exhs. 4, 3) and the May 14, 2010 Notice of Securement of an Approved Non Public School (Exh. 12). She maintained that the DOE offered the student an appropriate program with appropriate education services.

, school psychologist for the CSE, testified that she has worked in that position for 27 years. She stated that she conducts assessments of students, consults with teachers and parents, develops IEPs, determines classifications and placements for students (Tr. at 19). She stated that she became familiar with the student as a result of a request for a placement because the student was diagnosed as having school (Tr. at 20-1). She further stated that she was unable to conduct any classroom observations of the student because the student was not attending school (Tr. at 21-22).

Ms. stated that she participated in the initial evaluation of the student, reviewed a vocational report (Tr. at 22), a psychiatric evaluation and educational evaluation (Tr. at 23), along with a neuropsychological (Tr. at 25). She testified that at the April 7, 2010 CSE Review meeting the team determined that the student was very bright, motivated, but her psychiatric illness impacted her ability to function in school (Tr. at 31). She further testified that she had made the IEP goals (Tr. at 34). She stated that the clinical reports substantiated the classification of disturbed, but the team classified the student as other health impaired, and the CSE team requested that the mom get another letter from the doctor (Tr. at 36) in order to continue to support the classification of disabled. She stated that the team referred the matter to the CBST (Tr. at 41).

She further stated that the CSE Review team reconvened on June 28, 2010, in order to specify a school for the student, The School, which has a class with a student teacher ratio of (Tr. at 43). She stated that the student’s classification was changed to disturbance because the School only accepts students with the classifications of disabled or disturbance (Tr. at 45).

On cross, she acknowledged that she was aware that the student had difficulty completing work on time, was easily , and (Tr. at 50-51). She also agreed that the diagnosis of disorder (“ ”), generalized disorder with compulsive feature was accurate, and that the disorder affected the student’s ability to (Tr. at 53).

She opined that the relationship between the student’s difficulties and her was interfering with her ability to function while she was in the grade (Tr. at 58). She acknowledged that the parent delivered the medical, psychiatric and psycho-educational evaluations to the CSE on March 8, 2010, and a CSE review meeting was held on April 7, 2010 (Tr. at 65-6). She also admitted that the students, who are diagnosed as , were classified as Other Health Impaired (Tr. at 66). She stated that the change in the student’s classification was based on the same evaluations before the CSE review team at the April 7, 2010 meeting (Tr. at 79).

, social worker, School, testified that she has been a social worker for 28 years, and has a B.A. and a Master’s degree in social work, along with NYS certification (Tr. 122). She further stated that her responsibilities include intervention , general education , preparing social histories, and participating in conferences with parents (Tr. at 123).

She further stated that she contacted the parent in response to a referral in order to conduct a social history, and that she explained to the parent her Due Process rights (Tr. at 125). She further stated that social history was conducted on March 8, 2010 (Tr. at 126). She stated that the CSE did not conduct psychiatric evaluations because the parent provided them with a psychiatric evaluation (Tr. at 127). She stated that a CSE meeting was held on April 7, 2010, and that its purpose was to review the results of the evaluations and to make recommendation for education services for the student (Tr. at 129). She also stated that all participants at the meeting remained for the entire meeting and was given the opportunity to fully participate in the development of the IEP (Tr. at 129).

She further stated that the Review team used information from the social history, the psycho-educational and psychiatric evaluation, but that no observation of the student was conducted because the student was not attending school (Tr. at 130). She stated that the Review team used the information provided by the parent regarding the student’s social and functioning (Tr. at 130).

She further stated that the team classified the student as OHI because they needed a more current psychiatric diagnosis which was to be provided by the parent (Tr. at 131). She stated that the team was considering a classification of Disturbance due to the student’s history of an disorder and (Tr. at 131). She stated further that the team deferred the matter to the CBST because they believed the student needed a therapeutic setting (Tr. at 132).

She stated that another Review meeting was held on June 25, 2010, at the CBST’s request, because a site had been secured, and a recommendation for a NYS approved nonpublic school with related services was recommended (Tr. at 135). She further stated that the classification of disturbance was made because the CSE team did not receive additional information from the parent and that the team was informed that for the specific placement offered, there had to be a classification of disturbance (Tr. at 136). She stated that the parent was not happy about the change in the student’s classification (Tr. at 137).

On cross, she stated that at the meeting the parent informed them that she had looked at , and she was informed that she did not have to sign the Final Notice of Recommendation if she disagreed with it (Tr. at 139), but couldn’t recall if a Final Notice of Recommendation was actually given to the parent at the meeting (Tr. at 140). She also acknowledged that at the time of the June 2010 CSE meeting, she knew that the student had been attending , but that she did not contact anyone at the school (Tr. at 149). She further stated that the parent informed the CSE that the student was attending (Tr. at 149).

She further stated that the CSE team discussed with the parent how the School would meet the student’s social- needs. She stated that she did not know what type of students attended the school (Tr. at 150-1).

, Director of the School, testified that he was certified in school administration, education and education and has a Master’s degree in school administration (Tr. at 159). He testified that he has worked at the School as an executive director for 23 years (Tr. at 159). He further testified that the school has two locations in Queens, a school, grades to and a school, grades 9 to 12 (Tr. at 160). He testified that the school’s teachers are all certified or licensed along with the related services personnel (Tr. at 161).

He stated that the school has a work-based program, that the school’s students are within the average to gifted range, and that no students have low average or borderline intelligence (Tr. at 163). He stated that the school’s program is New York State approved and the students have the opportunity to receive credit in English through (Tr. at 163-164). He further stated that students graduate with a diploma and not an IEP diploma (Tr. at 164). He stated that the classifications of the students are, disabled, disturbance, and other health impaired (Tr. at 166).

He further stated that he and another staff member review the students’ packet submitted by the CBST and make a determination whether the school is the place for the student, and if so, schedule an interview (Tr. at 170). He stated further that the school would provide a therapeutic environment for , who had good academics, and could succeed in a small environment without any significant disorders (Tr. at 171).

, director, The School, testified that she is a NYS licensed and certified pathologist, teacher of and handicapped, and has a second degree in school building leadership (Tr. at 280). She testified that she has been the school’s director for three years and was previously the pathologist, a member of the admissions team (Tr. at 280-1), and has been an employee of the school for 25 years (Tr. at 281).

She further testified the mission of the school is to help students who have disabilities and adjustment issues “reach their full potential” (Tr. at 281). She stated that most of the students were of average to gifted intelligence with disabilities or adjustment issues (Tr. at 282). She stated that the school does on occasion accept students who are both disabled and who have issues (Tr. at 282). She further stated that the school has approximately 156 students with the same academic levels as most mainstream schools (Tr. at 283). She stated that the school offers related services, such as, , and therapy, and has five (5) social workers and one psychologist on staff (Tr. at 284).

She stated further that the student applied to the school in May 2010 and was interviewed in June 2010 (Tr. at 285). She stated that the school has students who have the same or similar issues as the student, and that the school provides a therapeutic environment (Tr. at 286). She stated that the school has an academically rigorous program which can be modified to adapt to meet its students’ needs (Tr. at 287).

She stated that a letter of acceptance dated June 18, 2010, for the grade was sent to the student (Tr. at 291).

On cross, she acknowledged that the parent had informed her at the interview that the student was attending and that she was in the grade (Tr. at 295). She stated that on June 29th she spoke to the parent and requested a commitment because they had other students who were waiting to hear from them (Tr. at 296-297).

She stated that the school accepts students who are classified as, OHI/ and OHI/ (Tr. at 300). She also stated that the letter which was sent to the CBST required that the student’s classification be either or (Tr. at 301).

She also acknowledged that there are students attending the school who are functioning below grade level in core academic areas (Tr. at 303). She stated that at the time the student was accepted the composition of the class had not been finalized (Tr. at 304). She stated that the student to teacher ratio was , which is 12 students, one teacher, one assistant teacher, and a pool of assistants (Tr. at 305). She also stated that the school does not accept students with conduct disorders or severe psychiatric issues (Tr. at 310). She further stated that the school does have students who are classified as autistic-Asperger. She stated that no one from the School attended the CSE meeting (Tr. at 310).

She stated that some of the School’s student population have intervention plans (Tr. at 307).

PARENT’S CASE

The parent’s attorney , presented the following documents, inter alia, a June 2010 educational evaluation, a School Program description, a tuition 2010-2011 contract, and the parent’s 2010 income tax return (Exh. B,C,G and K respectively).

, M.D., testified that she is licensed to practice psychiatry in New York State, and in psychiatry (Tr. at 106). She further stated that she began working with the student in December 2009, and the student was unable to go to school due to and school (Tr. at 109). She stated that she conducted a psychiatric evaluation of the student in January 2010, and February 2010 (Tr. at 110). She further stated that the evaluation consisted of interviews of the student and the student’s mother (Tr. at 111). She stated that she diagnosed the student with general disorder, and school , and that the student exhibited severe , ,

, , , and was unable to go the school (Tr. at 111-112). She further stated that she recommended that the student needed to be transferred to a smaller, supportive, structured environment which would address her needs, her , and adjustment issues (Tr. at 112-113). She further stated that she recommended The School because she was familiar with its programs and that it met the specific needs of the student (Tr. at 113).

She stated that she continues to see the student on a weekly basis, and that the student is taking medication as well (Tr. at 114). She stated that has proved to be “more than appropriate”, and the student has overcome much of her symptoms during her attendance at the school (Tr. at 115).

She opined that the CSE’s recommended placement would have been detrimental to the student’s social- condition (Tr. at 117). She stated that she was not contacted by the CSE review team to participate or give her input regarding any school of placement recommendation (Tr. at 117-118).

She further opined that if the student was to be sent to a different school for the 2010-2011 school year her disorder would be exacerbated (Tr. at 118).

On cross, she acknowledged that one of the schools she recommended that the student attend was The School (Tr. at 119).

Dayana Jimenez, clinical director, The School, testified that she is a NYS licensed and certified psychologist. She further stated that her responsibilities at the school include supervising advisor and counselors, providing students with , and crisis management, and staff development (Tr. at 204). She stated that the majority of the students at the school are in the to grades, and suffer from , , and disorders, and (Tr. at 205-207). She further stated that of the 68 students attending the school 99% of them go to (Tr. at 208).

She stated that the student suffered from when she first began attending the grade at in the 2009-2010 school year, and also suffered from low grade sadness which impacted her , academic and progress (Tr. at 210, 212). She further stated that the student was diagnosed with (Tr. at 212). She stated that the student has adjusted to the school’s program very well, in that, she has less , tension and less difficulty . She further stated that the student has begun to access various strategies throughout the day to cope, and she has established friendships as well (Tr. at 213-214). She stated that the student is graduating in June 2011 with a regular school diploma and has been accepted to a number of s (Tr. at 214215).

She stated that a typical day at begins with the students attending an advisory group, where the students check in, talk about how the prior day went, and what to expect for the day. She stated that the students attend regular classes, and goes to popular literature, pre-calculus, mid-morning, advising, health, American history, lunch, student prep, then attends 5th and 6th periods, and end of the day advising (Tr. at 216).

She stated that she did not participate in either the April 7th or June 28th IEP meetings (Tr. at 219). She opined that a change in the student’s classification from other health impaired to disturbance is not appropriate because the student’s issues are secondary to her difficulties and executive functioning problems (Tr. at 220-1). She stated that if she had participated in the IEP meetings she would have been able to provide input in developing appropriate goals, and goals which addressed the student’s organizational and skills (Tr. at 222).

She further stated that the student has made “tremendous gains” in the grade, and is on the honor roll and although she struggled the previous year, she has adjusted well (Tr. at 223).

On cross, she stated that the student’s advisor is not a licensed counselor, but that she supervises and monitors her (Tr. at 228-229). She acknowledged that she was aware that the student had school , , and a history of disorders (Tr. at 2323).

The student’s parent testified that as of 2009 she has been unemployed, and collecting unemployment benefits (Tr. at 238-239). She stated that when her daughter was in the grade she complained about pain in her side, of not feeling well, and of not being happy about school (Tr. at 243). She further stated that her daughter would prepare to go to school in the morning then have repeatedly and that she stopped attending school (Tr. at 245). She stated that at the end of the grade her daughter developed a and (Tr. at 241). She further stated her daughter was diagnosed by Dr. as having general , school , , and compulsive disorder, and that she was prescribed medication (Tr. at 246). She stated that her daughter saw Dr. on a weekly basis, and that Dr. recommended that she attend a small, therapeutic school, and provided a list of schools, which included The School, and the Child School (Tr. at 247-248). She stated that she contacted The in January 2010, and that whomever she spoke to informed her they would not be able to accept her daughter because it was the middle of the year and that she had to be referred by the Department of Education (Tr. at49). She further stated that when she contacted they offered to accept her daughter on a trial basis (Tr. at 249). She stated that he referred her daughter to the DOE on January 26 and February 3 (Exh. 15, 16 and Tr. at 249-250).

She further stated that her daughter began attending , and became more involved in the educational process (Tr. at 251), and during the April 7th IEP meeting her daughter was regularly attending the school (Tr. at 252). She further stated that at the April 7th IEP meeting it was explained to her that her daughter fell into a classification of Other Health Impaired more so than Disturbance because she did not have issues and “ spells” (Tr. at 255). She stated that the team referred the matter to CBST and she heard from them in June when Academy in Westchester was recommended, she was interviewed with her daughter (Tr. at 256-257). She stated it took two (2) hours to get to the school and she discussed this with Dr. , who believed that with the student’s issues this would create a setback with her , and the parent informed the CBST that she rejected it (Tr. at 257-258). She further stated the next placement was offered June 24th and it was The School, which she and her daughter visited the school (Tr. at 258). She stated that they toured the school, spoke to students, and they both felt that the students had psychiatric issues, and they seemed “very

” and “very tense” (Tr. at 259). She stated that Ms. informed her that the additional adults in the classroom were for intervention, and to calm down the unstable students (Tr. at 260).

She further stated that during the June 2010 IEP meeting she was told that her daughter’s classification was changing to disturbance in order for her to be accepted at The School and to fit into the profile there (Tr. at 262). She stated that she later received a call from Ms. offering her daughter a seat at the School, and requesting a 100% commitment from her, and that she would have to give the seat to someone else (Tr. at 265). She stated that she informed her she couldn’t tell her she was 100% committed because of her daughters issues (Tr. at 264-265, 275). She further stated that she never received any notices from the DOE in June or August (Tr. at 265).

On cross, she acknowledged that she signed the Registration Contract on September 3, 2010 (Tr. at 270-1). She further stated that she received an acceptance letter from The School (Tr. at 271-272). She stated that Ms. told her that she and her daughter would have to be 100% committed and that she wouldn’t be able to do so and Ms. told her she needed an answer at that time (Tr. at 272273). She further stated that she would have liked her daughter to attend The School back in January, but she was attending and had adjusted to the school (Tr. at 273). She further stated that during the June 28th IEP meeting she had informed the team that her daughter was no longer attending on a trial basis (Tr. at 274).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find that the Department of Education failed to offer M.W. a free appropriate public education.

The central purpose of the IDEA is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400 [d][1][A]; Schaffer v. Weast , 126 S. Ct. 528, 531 [2005]); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). A free appropriate public education includes education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program(IEP) (20 U.S.C. § 1401(9); 20 U.S.C. § 14149(d); 34 C.F.R. § 300.13. A school district offers a student a free appropriate public education when (1) it complies with the procedural requirement of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982). The student’s recommended program must also be provided in the least restrictive environment (LRE) 920 U.S.C. § 1412[a][5][A]; 34 C.F.R. §300.550[b]; 8 NYCRR 200.6[a][1]).

The burden of proof is on 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[i][c], as amended by Ch. 583 of the Law of 2007.

The first step in determining whether tuition reimbursement is appropriate is to determine whether the district offered to provide a FAPE to the student (See Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2 Cir. 2000]).

A FAPE is offered to a student when the Board of Education complied with the procedural requirements set forth in the IDEA, and the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Ed. v. Rowley, 458 U.S. 176, 206-7[1982]). The IDEA also requires that an impartial hearing officer’s decision be made on substantive grounds in determining that the student did or did not receive a FAPE (20 U.S.C. §1415 [f][3][E][i]. School districts are also required to comply with the procedural requirements set forth in the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3rd 377, 381 [2d Cir. 2003]). If a procedural violation is alleged, an impartial hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies impeded the student’s right to a FAPE, and significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits (20 U.S.C § 1415[f][3][E][iii]; 34 CFR §300.513[a][2], 8 NYCRR 2005 [j][4][ii]. An impartial hearing officer is not precluded from ordering a school district to comply with IDEA procedural requirements (20 U.S.C. § 1415 [f][3][E][iii].

The Second Circuit has determined that a “school district fulfills its substantive obligations under the IDEA if it provides an IEP that is “likely to produce progress, not regression” and it the IEP affords the student with an opportunity greater than mere “trivial advancement”(Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak, 142 F.3d at 130, and is likely to provide some “meaningful” benefit (Mrs. B. v. Milford Bd. Of Ed., 103 F.3d 1114, 1120[2d Cir. 1997]). The IDEA, does not require school district to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197).

An appropriate educational program begins with an IEP which reflects the results of evaluations to identity the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate education services Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

NYCRR 200.4(b)(iv) provides that an initial evaluation must include “an observation of the student’s environment (including the regular classroom setting) or, in the case of a student of less than school age or out of school, an environment appropriate for a student of that age, to document the student’s academic performance and in the areas of difficulty.” A CSE that prepares a student’s IEP must include the student’s parents, a regular education teacher of the student if the student is or may be participating in a regular education environment, a education teacher of the student, a school psychologist, a school district representative who is qualified to provide or supervise education, an individual who can interpret the instructional implications of evaluation results, the school physician if requested by the parent in advance of the meeting, and the parent of another child with a disability (Education Law Section 4402[1][b]; 8 N.Y.C.R.R. Section 200.3[a][1].

The IDEA requires that an IEP be developed by a group of individuals including at least one education teacher, or where appropriate, at least on education provider of such student (20 USC §1414[d][1][B][iii]; see, 34 CFR §300321[a]; 8 NYCRR§200.3[a][1][iii].

The parents alleged that the CSE review meeting was not duly constituted in that the teacher from was not present. The CSE was improperly composed and the DOE violated the student’s procedural rights under Article 89 of the Education Law and caused a deprivation of educational benefits. An IEP prepared by an invalidly composed CSE is a nullity. In the instant case, Ms. stated that she had received calls that the student was attending , and that the parent had informed to CSE that the student was attending (Tr. at 149). Given the fact that the CSE knew the student was attending , the participation of the student’s teacher was required. In addition, the education teacher from The School did not participate in the CSE review meeting. Accordingly, the June 28, 2010 IEP is the result of an invalidly composed CSE, and therefore a nullity.

Assuming arguendo, that the procedural requirements were met, the CSE failed to offer the student a FAPE because its reclassification of the student from OHI to disturbance was not based on any new or additional evaluations to support such a change, and the District’s explanation that the student could have been classified as either OHI or ED is disingenuous. Accordingly, the CSE’s recommendation was inappropriate.

Having determined that the DOE has not met its burden of proving it offered to provide a FAPE to the student during the 2009-10 school year, I must now consider whether the parents have met their burden of proving that the services provided to the student by the School during that school year were appropriate.

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, the services selected by the parent were appropriate, and equitable considerations support the parents’ claim (Sch. Comm. Of Burlington v. Dep’t of Ed., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71); Gagliardo, 489 F. 3d. at 111). “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 offered the student a FAPE” (Burlington, 471 US at 370-71). The private school need not employ certified education teachers or have its own IEP for the student (Application of a Child with a Disability, App. No. 9420). Parents who unilaterally place their child in a private school are not held as strictly as a board of education is to the requirement that each child with a disability be placed in the least restrictive environment (M.S. v. Bd. Of Ed, 231 F.3d 96 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 05-075; Application of a Child with a Disability, Appeal No. 01-028).

The restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S. v. Bd. Of Ed., 231 F.3d at 105; the test for a parental placement is that it is appropriate, not that it is perfect (Warren G. V. Cumberland Co. Sch. Dist., 190 F.3d 80, 84(3 Cir. 1999). The parent presented credible testimony and documentary evidence that the is meeting the student’s education needs, including providing her with supports that are designed for her. The parents presented evidence of the student’s academic, socialprogress. The District did not present any witnesses or evidence to contradict any of the statements of the parents or their witnesses. The parent prevails on the second criterion.

On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412(a)(10)(C)(iii). With respect to a parents’ obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, parents neither 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 District with written notice of such information ten business days before such removal, and a reduction or denial of reimbursement is discretionary. 20 U.S.C § 1412(a)(10)(C)(iii)(I) and 20 U.S.C. § 1412(a)(C)(iv)(IV), Application of a Child with a Disability, Appeal No. 04071.

Here, there is no evidence suggesting that the parent acted in an inappropriate manner in connection with the process. The parent notified the DOE in a timely manner regarding the inappropriateness of the IEP. The parents are awarded tuition payment to The School for the 2010-2011 school year. Connors v. Mills, 34 F.3d 476 (2002).

The parent also requested that the DOE pay for the independent educational evaluation, specifically, the February 2010 neuro-psychological and the January 2010 psychiatric evaluations. A parent has a right to an independent educational evaluation at public expense if they disagree with a DOE evaluation. If a parent requests an IEE at public expense, the school district must, without unnecessary delay ensure that either an IEE is provided at public expense or initiate an impartial hearing to show its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 CFR §300.502[b][2][i]-[ii]; 8 NYCRR §200.5[g][1][iv].

Here, the record fails to establish that the parent disagreed with a DOE evaluation or requested that the DOE pay for a private evaluation. The DOE social worker stated that the DOE did not conduct psychiatric evaluations because the parent had provided the evaluation reports to them (Tr. at 127). I am not persuaded that the parent properly requested an IEE at public expense or otherwise compiled with the requirements governing IEE (see, 8 NYCRR§200.5[g]. Accordingly, the parent’s request for reimbursement of the costs of the independent neuro-psychological, and psychiatric evaluations is denied and dismissed.

ORDERED, the Department of Education is to pay the student’s tuition upon either proof of payment or upon the submission of an invoice from The School for the 2010-2011 school year; Dated: August 4, 2011

_________________________

VERONICA C. ODOM, ESQ.

Impartial Hearing Officer

VCO:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT DESCRIPTION

A Impartial Hearing Request, 7/9/10, 3 pages B Educational Evaluation, 6/10, 6 pgs C School Program Description, 3 pages D 2010-2011 Class Schedule E 2010-2011 Attendance Record, 1 page F Mid Quarter Report, 10/12, 1 page G Registration Contract, 1 page H Third Quarter Educational Evaluation 3/20/11, 6 pages I Attendance Report 2010-2011, 1 page J Second Quarter Educational Evaluation 1/2011, 6 pages K 1040 Income Tax Return for

DEPARTMENT OF EDUCATION DESCRIPTION

1 Parent's Request, 7/9/10, 3 pages 2 Department's Response, 7/27/10 3 IEP, 6/28/10, 12 pages 4 IEP, 4/7/10, 13 pages 5 Educational Evaluation from School, 6/10, 6 pgs 6 Full Evaluations Conducted February 2nd and February 9th, 2/18, 14 pages 7 Psychiatric Evaluation by Dr. , 1/21, 1/28, and 2/4, 3 pages 8 Letter from Dr. Rebecca Seigel, 1 pg 9 Initial Social History Report, 4 pgs 10 Vocational Report, 3/8/10, 2 pages 11 Request for Medical Examination, 2 pgs 12 Notice of Securement of Approved Nonpublic School, 5/14/10, 2 pages 13 Letter to Burly Augustine from , 6/17/10, 1 page 14 Notice of Referral, 2/9/10, 1 page 15 Letter to CSE Chairperson from Ms. , 2/3/10, 1 page 16 Letter from and to ,

6/26/10, 1 page

17 Consent for Initial Evaluation, 3/8/10, 1 page