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: November 23, 2010

January 20, 2011\

February 3, 2011

March 2, 2011 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 23, 2010

Student

Parents

Representative — DOE

Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 20, 2011

Student

Parents

Representative — DOE

Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 3, 2011

Student

Parents

Student

Representative — DOE

Representative — DOE

DOE

DOE

DOE

DOE

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 2, 2011

Student

Parents

Student

Student

of School — Student

Representative — DOE

Representative — DOE

Representative — DOE

Representative — DOE

On August 20, 2010 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1) and Section 504 of the Rehabilitation Act, concerning a dispute involving the special education program of an (18) year old student attending public school and the Department of Education (“DOE”) Home District Service District After adjournments were granted on consent or for good cause, the hearing was held on November 23, 2010, January 20, 2011, February 3, 2011 and March 2, 2011. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

This case involves a student who is classified as “ ” and diagnosed with “ / ” (“ ”). (See Parent’s Due Process Complaint - “DPC”) The Parent challenges the student’s March 23, 2009 for the 2009-2010 school year on substantive grounds. The Parent requests “funding for/direct payment” of reimbursement of tuition and costs and fees for the student’s school placement during the 2009-2010 school year.

(DPC)

THE DOE’S CASE

The DOE argues that the student was first evaluated in 2004, classified as “ ” and recommended for “ ” (“ ”). (T-78) The student is currently enrolled in an - . (Id.) This is the same placement that was offered for the student in both 2009 and 2010, yet was rejected. (Id.) The student is flourishing thereat academically and socially and would have done as well in 2009-2010 if given the opportunity to do so. (T-78-9)

The DOE called (5) witnesses to testify on its behalf and submitted (12) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness is the education evaluation placement and . (T-93) She has been a for (25) years. (T-94) The “site offer” was generated on March 23, 2009. (T-95) The offer was for the student’s current school, in an “ team with and a . (Id.) The Parent responded that she was rejecting the offer in a letter dated November 24, 2009, which they clocked in on December 1, 2009. (T-96) The Parent stated that she was going to place the student in a school. (T-98) She reviewed the student’s IEP to come up with the offer. (T-100)

The witness stated that they decided on the student’s current school after consulting with the district . (T-104) They consider the student’s IEP and program recommendation and try to place the student as close to as possible. (Id.) She is the for schools and does not keep registers for all the schools. (Id.) The student was attending a school in at the time the offer was made. (T-105) The student did not have a address. (T-111)

On cross examination, the witness testified that there is a written notation on the Final Notice of Recommendation (“FNR”) indicating that the Parent’s address was changed to , which may have come from a telephone call. (T-114) The student might have placed in a class with less than ( ) students had the Parent accepted the offered placement. (T-119) There was no re-direct testimony taken from the witness. (T-120)

The DOE’s second witness is the “ with ” (“ ”) at the student’s current School. (T-124) He is a education social studies and held that position in the 2009-2010 school year. (Id.) Last year, his position was called the “ .” (Id.) He has multiple subject certifications to teach in education. (T-125) He is familiar with the - at the student’s current school. (T-126) He currently teaches in integrated co-teaching, has also taught a - class and has worked on grades ( ) through ( ) for the last (5) years. (T-127)

The witness stated that there are two present in every - class. (T-

128) These classes were in existence in the 2009-2010 school year on all grade levels. (Id.) He taught the grade - class last year. (T-132) The class had ( ) students, ( ) of which were IEP students. (Id.) There were no in the class. (T-139) The coprovides all related services. (Id.) Testing modifications are provided in accordance with a student’s IEP. (T-140) They tend not to provide push-in services. (Id.) Typical classifications for the students are , and and . (T-142) There are some students that have . (T-143)

The witness stated that he has met the student and his . (T-146) The student’s previous school withheld the student’s records. (Id.) He saw the student’s IEP after his former school released it. (T-149) He did not meet with the student’s Parent. (T-150) He is unaware of any visit the Parent may have made to the school. (T-150-1)

On cross examination, the witness testified that he taught (5) sections of “ ” social studies classes. (T-153) In the grade they have math, social studies, ,a class, a shop class and a computer class. (T-153-4) The Parents do not have to necessarily make an appointment to visit the school. (T-155) He would give tours at the school. (T-155) He is unsure of how many - grade classes there were last year. (T-156)

The witness stated that he does not know if the student would have been assigned to his class. (T-157) The classes are capped at ( ) and they cannot have more than ( ) students with IEP’s. (Id.) There were approximately , students at the school last year. (T-157-8) The special education are dual certified in social studies and special education and the other in the room is certified in social studies. (T-158) He does not know how many other paraprofessionals are in the other classes. (Id.) The student’s functioning levels vary in reading from the grade to “on grade level.” (T-159) Visual learners at the school receive visual aids, graphic organizers, review sheets, “SMART” boards are used, as well as a “Jeopardy-type of game” for review purposes and “scaffolded writing.” (T-159-60) “E-chalk” is utilized and homogenous and heterogeneous grouping based upon the student’s needs. (T-161-2)

The witness stated that he might have up to (6) or (8) groups in his class depending on what activity they are doing. (T-162) The periods are (50) minutes long. (Id.) The class meets (5) days per week. (T-163) He works with everyone in the classroom. (T-164) The entire grade does not take lunch at the same time. (T167) Two or three students in his class last year had severe and were extremely distractible to others. (T-168) They were sat in the front of the room away from other students. (Id.) Nothing warranted any kind of “interventions” in his class. (T-170)

On re-direct testimony, the witness testified that the special education students are with mainstream students most of the day. (T-172) There was no substantive testimony developed during the witness’ re-cross examination. (T-173-8)

The DOE’s third witness conducted an observation of the student. (T-180) She also attended the IEP meeting. (T-181) She is the school and held that position in the 2009-2010 school year. (T-183) This is her 4th year working at the CSE. (T-184)

The witness stated that the student’s main issue was his difficulty focusing within the classroom and his diagnosis. (T-185) Various reports from the indicated that the student was functioning on too high a level and that to place him in a - class would have been excessively . (T-186) The student needs to have access to general education students. (T-187) They believed that a part-time would be able to address the student’s and to refocus the student. (T-187) The student was also recommended to receive and a shared . (T-188)

The witness stated that they developed a (“ ”) for the student. (T-189) She is aware that the student was on at one time. (T-197) One of the reasons the student’s classification was changed to “ ” is that he was diagnosed with .

(T-199 & P-F)

On cross examination, the witness testified that it was not likely that the who signed the IEP as the general education was teaching a general education class during the 2009-2010 school year. (T-205-6) Neither was the person who signed the IEP as the education . (T-206) At the time of the IEP, the student was in the grade and his reading comprehension was at a grade level, his writing at an grade level, his writing mechanics at a grade level, his spelling at a grade level and his math was at a grade level. (T-208) They felt that was appropriate for the student. (T-209) The student was on grade level in his decoding. (Id.)

The witness stated that they did an observation and collected information from the student’s former school. (Id.) She does not recall being advised at the CSE meeting that and none of the have worked to address the student’s . (T-210) The IEP indicates that with instruction and requires additional . (T-215) Notes were taken at the meeting and subsequently typed onto the IEP. (T-216) They did not collect data for a “ ” (“ ”). (T-217-8) They did ask the student’s school about his behaviors. (T-218) The student’s behavior was primarily attributed to his . (T-219) They also reviewed the student’s - evaluation. (T-222)

On re-direct testimony, the witness stated that they believed that could address the student’s . (T-228) She does not know if the Parent took the student to see outside services. (T-230) There was no substantive testimony developed during the witness’s re-cross examination. (T-231-3)

The DOE’s fourth witness was the student’s last year. (T-233) She does not have any teaching degrees or licenses. (T-236) She is licensed as a . (Id.) This is her year teaching. (Id.)

The witness stated that the student is a visual learner. (T-237) The student had a hard time sitting in his seat. (T-238) There were no in the classroom because the class only had ( ) to ( ) students. (T-239) The student was not taken out of her class to receive (T-240) She believes that the school offers . (Id.) The school also has students who do not have needs or IEP’s. (T-242) The student is never taken out of her class for related services. (T-245)

The witness stated that her credentials are the seminars, conferences and experience that she has gained while working at the school. (T-247) She believes that the student was not trying as hard as he could and that he was a bit of a goof off. (T-249) The student easily gets distracted and it is hard for him to stay on task. (T-250) She does not remember what the student’s behavior was like at the end of the year. (Id.) She was aware that the student was on medication. (T-251)

On cross examination, the witness testified that she did not remember if the student made progress in between September and June. (T-256-7) On re-direct examination, the witness stated that the school only does regency competency test. (T-257) There was no re-cross examination of the witness. (T-258)

The DOE’s fifth and final witness was the student’s last year. (T-260) She is certified as an and has experience as special education . (T-263) She was the general education in the student class. (T-264)

The witness stated that the student had obvious of . (T-265) The student received a three day for at a and everybody out. (T-265) Several times she had to notify the Parent about the student’s . (T-266) They followed the student’s IEP and did not have an in the class. (T-268) There were approximately ( student’s in the class. (Id.) She is not sure if the student was provided with . (Id.) The student was inconsistent with his homework and needed to be constantly re-directed. (T-269)

The witness stated that the student did come to her tutorials and with one-on-one attention he was able to better focus. (T-272) The student is quite intelligent but is not living up to his potential. (T-274) She would describe the school as a education school because the main stream students are not in the majority. (T-275)

On cross examination, the witness testified that he student did not practice or keep up with the work as much as he should have. (T-278) The student was very distractible and needed re-directing and re-focusing every day. (Id.) The size of the class was beneficial to the student. (T-279) There was no substantive testimony developed during the witnesses re-direct examination. (T-279-82) On re-cross examination, the witness stated that the student needs someone to him at all times and that a class of (30) students is too large for him. (T-286)

THE PARENT’S CASE

The Parent argues that for the 2009-2010 school year, the student’s classification was changed from “ to “ .” (T-80) For the Committee of Special Education (“CSE”) meeting on March 23, 2009, the student had been diagnosed with , a mixed receptive/expressive and a reading disorder. (Id.) At the time of the CSE meeting, the student was in the grade in a private school. (Id.) The “focus ” described the student’s as “highly ” in the classroom. (T-

81) Near the completion of the grade, the student was functioning at a grade level in reading comprehension and writing, a grade level in spelling and a grade level in math. (Id.) The CSE did not request a speech and language evaluation for the student, nor did it conduct a “ ” (“ ”). (Id.)

The Parent further alleges that the CSE did not have sufficient information to develop the student’s Individualized Education Program (“IEP”). (T-82) The DOE recommended that the student receive counseling once a week, even though it had been proven to be ineffective for the student. (Id.) The IEP included a Behavior Intervention plan (“BIP”) and offered the student a placement at his current public school for the 2009-2010 school year. (Id.) However, the placement offer was mailed to the Parent’s former address and she did not become aware of it until the summer of 2009. (T-82-3) The Parent visited the placement and felt that it was inappropriate for the student because it was a school with almost 4, students. (T-83) The student would have been placed in a class of at least ( ) students of varying functioning and . (Id.) Subsequently, the Parent placed the student in a private school for the 2009-2010 school year. (Id.) The Parent is requesting “direct funding” of her tuition obligation to the school. (Id.)

The Parent called (5) witnesses to testify on her behalf and submitted (20) documents in evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness is a who saw the student for a consultation. (T-288 & P-G) He first met the student in October of 2007. (T-292) The student has and is . (T-294) He recommended that the student be placed in a self-contained special education classroom with a small student t ratio. (Id.) He also recommended that the student receive additional support services that could help with his executive functioning deficits and so that he could become more independent. (Id.) He wrote letter stating that the student was unable to function in a larger class in a public setting. (T-295 & P-Q)

The witness stated that the student had been attending a small setting special education program in a different non-public school and was struggling. (T-296) Accordingly, he could not see how the student would be successful in a larger setting. (Id.) He believes the student’s previous private school was an appropriate setting. (T297)

On cross examination, the witness testified that the student had seen him and some of his colleagues intermittently during the 2009-2010 school year maybe two times. (T-298) His expertise is from the clinical experience. (T-299) He has never been to the student’s previous private school and is not familiar with how they are organized. (Id.) He believes the student needed counseling, behavior modification and assistance with organization. (T-299-00) He did not have any on-going discussions with the private school’s support staff. (T-300) There was some improvement in the student’s with medication. (T-307) There was no re-direct testimony taken from the witness. (Id.)

The Parent’s second witness was the student’s grade math last year. (T-322) Her school is for special education and reluctant learners. (T-325) They have small classroom sizes. (Id.) Faculty meeting are held once a week. (T-326) She meets with the school every two weeks and on the alternating week she meets with the principal. (Id.) Two conferences are held during the school year. (Id.)

The witness stated that at the beginning of the school year, the student was on a grade math level based upon his own assessment. (T-328) The student is very distractible. (Id.) He also has very slow processing issues both verbally and operationally. (T-329) Multi-step problems were very difficult for the student. (Id.) So are word problems. (Id.) For the 2009-2010 school year, the student was in a class with ( ) students. (T-330) All of them were in the grade. (Id.) The student is a visual and kinesthetic learner. (Id.)

The witness stated that the student needs step by step and a lot of one on one. (T-

331) She would pair up stronger students with weaker students in the class. (T-332) She would provide one-on-one instruction to the student pretty much every day. (T-333) They used the “AGS Publishing Algebra” textbook because it is more modified. (Id.) Term reports are done (4) times a year and are only issued to students with a ( average or below. (T-335) Academic reports are done for every student. (Id.) The school also has a “self-advocacy mentoring program.” (T-336) Each is matched with a group of students that meets every during period for ( ) minutes. (T-336) The student made progress in math during the 2009-2010 school year. (T-337) At the end of the year the student was at a grade math level. (T-338) She believes that the student would be lost in a class with ( ) to ( ) students. (T-340-1)

On cross examination, the witness testified that she has a master’s degree but not in special education. (T-342) She had access to the student’s IEP. (T-343) Six out of the ( students in the class have an IEP. (Id.) Two days out of the week there is a school on staff. (T-344) She does not know if the student received his related services. (T-345) She has experience dealing with students that have . (T-346) She did write a report stating that the student needed extra help. (T-347-8) The student received the extra help in the 8th period, although not every day, but frequently. (Id.) The student did not receive help in math at the once a week mentoring program. (T-350) The student’s distractibility issues diminished at the end of the 2009-2010 school year. (T-351)

The witness stated that at the beginning of the year she gives the students a (60) question exam and she gives a final exam at the end of the year. (T-354) The class had (22) students. (T-355)

There was no substantive testimony developed during the witness’ re-direct testimony. (T-356-7) On re-cross examination, the witness testified that the school would meet with the to help with any issues that they were having with the kids. (T-358) The Parents did not have an opportunity to meet with the school to her knowledge. (T-358) Parent workshops were conducted by the , but not the . (T-359) There were also PTA meetings. (T-360)

The Parent’s third witness was the student’s reading . (T-362) She is a certified in elementary education. (T-363) She has been a reading for

(7) years and for (5) years at the student’s former school. (T-364) Formally they meet once a month at the school, have an in-service day every year and generally go to a workshop at least once a year. (T-365) She attends the meeting that covers reading issues and also special education issues. (Id.)

The witness stated that the student was in her class for the 2009-2010 school year. (T-366) The student’s decoding skills are in the grade level and his reading comprehension was in the mid grade level. (Id.) As a result of the Woodcock reading test, the student was placed in a group with one other student. (Id.) She saw the group twice a week for the school year. (T-366-7) was the student’s main issue. (T-

367) It was easy to re-direct the student because there were only students in the class. (T-367) They met twice a week for (40) minutes. (T-369) The student progressed in reading during the 2009-2010 school year. (T-370) She does not think the student would do well in a large class. (T-371)

On cross examination, the witness testified that her certification is “K” through “12.” (T-373) She has taught special education students ever since she started teaching. (T-374) However, she has not taught an official special education class. (T-374) She is aware that the student has an IEP. (T-376) She is not aware of any services that the student got. (T-377) The other student in the student’s class also has an IEP. (T-378) She is certified in “Wilson.” (T-379) She uses grade based material. (T-380) There was a on staff for the 2009-2010 school year. (T-383) The was the supervisor of the mentoring program. (Id.) There are tutorials every day in every subject. (T-386)

The witness stated that she employed the student’s goals in his IEP. (T-387) She did not use any test modifications with the student. (T-388) The only tests that she gives are standardized test, i.e., the Woodcock-Johnson. (Id.) She does not see the student being successful in a room with (30) students. (T389) She has worked in an integrated co-teaching class with elementary students. (T-389-90)

On re-direct testimony, the witness testified that her class was not a tutorial. (T-390) There was no re-cross examination of the student. (T-391)

The Parent’s fourth witness is the of the student’s former private school for (20) years. (T-342) She stated that the school is a independent school. (T-395) They make an attempt every year to have each attend at least one workshop regarding differentiating instruction and classroom management. (T-395) Every other week they have meetings with the regarding the students. (T-397) The school is accredited and chartered by the New York State Board of Regents. (Id.) They are allowed to issue high school diplomas and do not take state or federal funding. (Id.) The school services grades (4) through (12) and as approximately (70) students. (Id.) Classes at the school are small, highly structured and focused on students who have which is about (99.8%) of their students. (T-397-8) They utilize lots of multisensory approaches, graphic organizers and special textbooks. (T-398)

The witness stated that they do not have “ ”, but she and the school serve as “ .” (T-398-9) To admit a student they first have a conversation with the student’s Parent, then review the student’s IEP and evaluations and finally have the student visit for two days. (T-399)

The witness stated that the school was a good place for the student because they have a very structured program with no more than ( ) students in a class. (T-402) The student’s class last year had ( ) students. (Id.) The felt that the student was making progress regarding his overall academics. (T-403) The student’s tuition and fees was $ and the Parent has only paid $ towards the tuition. (T-406 & P-H) They do not release the records of students whose Parents have not met their contractual obligation. (T-407)

On cross examination, the witness testified that she last taught remedial reading, grades ( ) through ( ) in 1989. (T-408) She is not certified in education. (Id.) However, she has taught a education class. (T-409) Three of the school’s school are certified in education. (T-410) They believe that it is more important to have a certified in their specific content area rather than just certified generally in education. (T-411) The school has a of education and the principal who is certified in education. (Id.) The curriculum at the school is geared towards special education. (Id.) The school issues the equivalent of a local public school diploma. (T-414)

The witness stated that she is aware that the student is mandated to receive

(T-416) The Parent was advised that the school does not provide (T-417) The school district is responsible to provide related services and never provided it to the student. (Id.) She was aware that the student was taking medication. (T-419) Although the contract calls for the payment of a $ non-refundable reservation deposit the Parent only paid $ (T-420) She does not know if the Parent visited any other placements that were offered. (Id.) There was no substantive testimony developed during the witness’ re-direct or re-cross examination. (T-423-7)

The Parent’ fifth and final witness is the student’s . (T-428) She works full time as a sales representative for the “ ” since June 2010. (Id.) Prior to working there she was . (Id.) The student’s is an in who is not up to date with his child support obligation. (T-429-30) The student was diagnosed when he was in the grade. (T-434) She had the student evaluated and he is highly and has . (T-

435) The student is diagnosed with and . (Id.) The student had taken some , but not consistently because it affected his . (Id.)

The witness stated that in , the student was in an . (T-438) Towards the end of the grad, they recommended that he be placed in a education class with a . (T-438) The student did not continue in public school for the grade. (Id.) She attended the student’s IEP meeting in March. (T-440) She only received “notice” of the meeting. (T-441) The DOE recommended an with a . (Id.) She did not agree because the student would not be able to survive in a class with (32) students. (Id.) At the end of the meeting, they sent her down to a second floor to document her new address. (T-442)

The witness stated that she called and wrote to the DOE because she did not receive a placement offer for the student. (T-443-4) She wrote two letters to the DOE about the placement offer. (T-445-6 & D-10, P-T) She misdated the letter in Exhibit “T.” (T-446) She received the placement letter on July 21 and visited the proposed placement in November because the school was closed for the summer. (T-447) She tried to visit the school but they told her that she had to make an appointment. (Id.) The contact at the school got back to her in November saying that she was sorry because her grandfather was in a hospice. (T-448)

The witness stated that the proposed classroom had (32) students and she could not see how the student would be able to function there. (T-449) She wrote a letter telling the DOE that she objected to the proposed placement, but she never received a response. (T-449-50) She has no objection to the student attending a school. (T-450)

The witness stated that the school was appropriate for the student because it was a small setting. (T-451) She cannot afford to pay the school tuition due to her income. (T-452) Her income or 2009 was and she does not own any , a or have any . (T453)

On cross examination, the witness testified that she did not know a placement offer had been made on March 23rd. (T-454) She had called the DOE prior to writing a letter on July 31st. (T-456) The DOE has previously paid for the student’s placement at a private school. (T-458) She was not happy with that other private school because it was very far and the student would come home late. (T-459) The student was not doing well at the other private school despite the small class setting. (Id.)

The witness stated that she signed the contract with the private school even though she knew that she would not be able to pay the tuition. (T-460) She was hoping to get “reimbursement” because she thought the private school was a proper placement for the student and because the student got “reimbursement” the prior year. (T-461) She had not visited the DOE proposed placement when she signed the contract with the private school. (T-462) She knew that the school year started on September 9, 2009 when she signed the contract with the private school. (Id.) She was also aware that the director of special education at the proposed public school was conducting tours of the school in the fall of 2009. (T-467) The student is currently attending the public school that was proposed for the 2009-2010 school and is struggling, although he is happy socially. (T-471-2) There was no substantive testimony taken during the witness’ redirect or re-cross examination. (T-473-9)

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (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 unique 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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07 and 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. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and 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. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and 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]).

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (See 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." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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." (See Walczak, 142 F.3d at 132, quoting v. Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and 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.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; 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] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09). Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087).

The DOE 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 DOE were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). 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. (See Burlington, 471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "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. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148).

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. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007). The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016).

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02014 and 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. 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. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and 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." (See 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, the IDEA provides 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, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners 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 tuition reimbursement. (SRO No. 04-049).

This case presents a situation where the student, who is currently attending a public school, seeks either “funding for/direct payment” of his tuition at private school for the 20092010 school year. (DPC) It is not a “reimbursement” case, because the student’s Parent has not paid the private school tuition, nor is it a “prospective payment” case, because the student is no longer attending the private school. The first address whether the Parent’s requested relief can be provided under the circumstances.

An order by an IHO for a district to pay tuition costs at an unapproved placement is permissible only as an equitable remedy to reimburse parents once they have obtained and paid for appropriate services. (See 20 U.S.C. 1412[a][10][C][ii]; 34 C.F.R. § 300.403[c], see also Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370-71 [1985], A.A. v. Bd. of Educ., 196 F. Supp. 2d 259, 264 [E.D.N.Y. 2002], SRO Nos. 05-039, 05-025, 04-092 & 04-037)

This case is analogous to the case reviewed by the State Review Officer (“SRO”) in SRO No. 07-032. There, the SRO held as follows:

In this case, respondent requests an order directing petitioner to pay her son's tuition costs directly to for the 2005-06 school year. It is well settled that parents who reject a school district's IEP and choose to unilaterally place their child at a private school without consent or referral by the school district do so at their own financial risk (Burlington, 471 U.S. at

373-74). The United States Supreme Court in Burlington held that retroactive reimbursement of private educational expenses is appropriate as an available remedy under the IDEA (Burlington, 471 U.S. at pp. 370-71; see also Gagliardo v. Arlington Cent. Sch. Dist., 2007 WL 1545988 at *6 [2d Cir.

May 30, 2007] [explaining that parents who believe that their child has been denied a FAPE may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school];

Daz-Fonseca v. Commonwealth of Puerto Rico, 451 F.3d 13, 32, 40 [1st Cir.

2006] [concluding that reimbursement under the IDEA allows parents to recover only actual, not anticipated, expenses for private school tuition and related expenses]; Cerra, 427 F.3d at 192 [noting the availability of "retroactive tuition reimbursement" under the IDEA]; Muller v. Comm. on Special Educ. of East Islip, 145 F.3d 95, 106 [2d Cir. 1998] [holding that compensation for "out of pocket expenses" was appropriate]). The IDEA provides that "a court or a hearing officer may require the [school district] to reimburse parents for the cost of [private school] enrollment if the court of hearing officer finds that the [school district] had not made a [FAPE]

available to the child in a timely manner prior to that enrollment" (20 U.S.C.

§ 1412[a][10][C][ii]; see 34 C.F.R. 300.148[c]).

Here, the record indicates that respondent has not suffered any out-of- pocket loss for the services provided by . By the time the impartial hearing commenced in July 2006, the student had completed his grade year at without paying any tuition. After reviewing the record, I find no support for respondent's assertion in her cross-appeal that she incurred financial responsibility for the student's tuition at for the

2005-06 school year, and accordingly I will dismiss her cross-appeal.

Although respondent answered "yes" when asked if she signed a contract with that held her responsible for the student's tuition (Tr. p. 56), she also testified that "knew [the student's] situation" and understood "that there's no funding . . . unless we are funded from the Board of Education"

(id.). I also concur with the impartial hearing officer's reading of the plain language of the contract, which stated that assumed the risk of nonpayment if respondent agreed to cooperate in efforts to secure funding from petitioner (IHO Decision at pp. 9-10; Parent Ex. B).

Under these circumstances, I find that , who is not a party and is not entitled to relief under the IDEA, incurred a financial burden in this matter, not respondent or the student. Respondent cannot assert a claim for relief on behalf of , a entity that lacks standing under the IDEA to maintain a claim against petitioner in its own right (see v. Sch. Bd., 432 F.3d 294, 299 [4th Cir. 2005]; v. , 413 F. Supp. 2d 746, 755-56 [S.D. W.Va. 2006]); see also v. , 474 F.3d 934, 937 [7th Cir. 2007]). For these reasons, I find that the impartial hearing officer erred by awarding the costs of tuition to

.

Here, the school contract requires the payment of a “non-refundable reservation deposit of $ plus applicable fees” but the Parent paid and the school accepted payment of only $ (T-420 & P-I) The contract states that the Parent is “obligated” for the payment of all tuition and fees for the entire year. (P-I) The Parent and the of the school also testified that the Parent is obligated to pay. (T-407 & 460) However, these facts do not change the analysis as the law is clear that the Parent entered the agreement at her own financial risk. (See Burlington, 471 U.S. at 373-74)

It is also important to note that the Parent conceded that she signed the contract with the school knowing that she was not be able to pay the tuition. (T-460) It is a well-known axiom in the law that “existing impossibility to perform under a contract when it is entered into, renders that contract void. (See Restatement Second, Contracts § 266, Comment a.) It is reasonable to assume that the private school made inquiry into the Parent’s ability to pay the tuition, or that the school accepted the student with the understanding that the Parent would bring this action to get the DOE to pay the required tuition. If the former, the private school would have known that the Parent could not possibly pay the tuition, because she was only earning $ in 2009 and the school tuition and fees totaled $ for the 2009-2010 school year. (T-452-3, 406 P-S) If the latter, then the Parent is in effect asserting a claim for relief on behalf of the private school, a private entity that lacks standing under the IDEA to maintain a claim against the DOE in its own right. (See , & , supra) Accordingly, there is a reasonable basis to find that the school knew that it was impossible for the Parent to perform under the agreement, thus rendering the agreement void.

I further note that the Parent testified that she was hoping to get “reimbursement” because she had gotten reimbursement the prior year. (T-461) She signed the contract with the school before she even visited the proposed DOE placement. (T-462) After receiving notice of the proposed DOE placement on July 21, the Parent did not visit he DOE school until November, ostensibly because the school was closed over the summer and she could not make an appointment to visit the school until then. (T-447) However, she conceded that she knew that the school was open as of September 9, 2009 and that the of education at the school was conducting tours of the DOE school in the Fall of 2009. (T-462 & 467) For all of the reasons stated above, I find that the Parent did not cooperate with the DOE in good faith and that she brought this action on behalf of the private school and not herself.

Neither does the Parent qualify for “prospective” tuition reimbursement as the student is not currently attending the private school. As such, equitable considerations strongly bar an award on behalf of the Parent in this case.

I note for the record that the relevant IEP dated March 23, 2009 is properly constituted under law. (See 8 NYCRR § 200.3(a)(1) & P-E) The record indicates that the CSE reviewed the student’s - evaluation dated March 6, 2007, his Evaluation dated November 7, 2008, and his various academic reports. (T-222, P-F, P-G, P-M, P-P & D-5) The Parent stated that the student is struggling at his current DOE school although socially he is happy at the school, which is the same placement he was offered for the 2009-2010 school year. (T-78, T-471-2) The student’s main problem is his and distractibility, but both of these issues have improved or diminished. (T185, 265, 294, 307, 328 & 351) There was also ample testimony that the student has progressed. (T-337, 370 & 403) The record supports a finding that the DOE produced an IEP that was reasonably likely to produce progress, not regression, and that afforded the student with an opportunity greater than mere “trivial advancement.” (See Cerra, P. v. Newington Bd. of Educ. & Perricelli, supra)

For all of the reasons stated above, I find that the Parent is not entitled to either “tuition reimbursement” or “prospective tuition payments.” An award on behalf of the Parent is barred by the equitable considerations in this case.

NOW therefore, it is hereby

ORDERED that the Parent’s request for “funding for/direct payment” of the student’s tuition, costs and fees for the student’s unilateral private school placement during the 2009-2010 school year must be DENIED. Dated: May 16, 2011

_______________________

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 RECORD

PARENT

A Impartial Hearing, 8/16/10, 4 pp. B FNR, 3/23/09, 1 p. C Letter from Parent to Funk, 11/24/09, 2 pp. D IEP, 4/11/08, 13 pp. E IEP, 3/23/09, 18 pp. F Evaluation, 3/6/07, 20 pp. G Pediatric Evaluation, 11/7/08, 5 pp. H Financial Affidavit, 11/17/08, 1 p. I Enrollment Contract, 8/31/09, 1 p. J Student Schedule, Undated, 1 p. K Attendance Affidavit of , 11/18/10, 1 p. L Description of School and Programs, Undated, 15 pp. M Academic Reports, Various Dates, 25 pp. N and Special Education Accountability , 4/10, 3 pp. O Delivery Report, 5/28/10, 1 p. P CSE Review Minutes, 3/26/09, 2 pp. Q Letter from , 12/9/10, 1 p. R Academic Report, 4/26/10-4/30/10, 7 pp. S Parent 2009 Tax Returns, 2 pp. T Letter from , 8/26/09, 3 pp.

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, 8/16/10, 4 pp. 2 Notice of Schedule Resolution, 9/1/10, 2 pp. 3 Resolution Responses, 9/15/10, 1 p. 4 IEP, 3/23/09, 18 pp. 5 Minutes, 3/23/09, 2 pp. 6 Appointment Letter, 3/9/09, 1 p. 7 Placement Letter, 3/09, 1 p. 8 Placement Letter, 4/09, 1 p. 9 C-10 Final Notice, 3/23/09, 10 Parent Letter, 7/31/09, 1 p. 11 Report from , Winter of 2009, 6 pp. 12 DOE Answer, 8/30/10, 3 pp.