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: March 14, 2011

March 21, 2011

July 20, 2011

September 23, 2011 Actual Record Close Date: November 19, 2011 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 14, 2011

Attorney — Student

Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2011

Attorney — Student

Parents

Attorney — DOE

Special Education Teacher (via telephone) — DOE

Assistant Principal (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 20, 2011

Attorney — Student

Parents

Psychologist — Student

Assistant Head of School, (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 23, 2011

Attorney — Student

Parents

English Language Arts Social Studies Teacher, — Student

(via telephone) — Student

Attorney (via telephone) — Student

Attorney — DOE

— DOE

The matter of . (hereinafter “the student”) came before me for determination on March 14, 2011, March 21, 2011, July 20, 2011, and September 23, 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 September 23, 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 in order for the parties to prepare and present their cases and for the submission of briefs. Additional time was necessary for a full, fair disclosure of the facts required to arrive at a decision in this matter. The record close date is November 19, 2011. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

BACKGROUND

At the time of the request, . was year old student classified as by the New York City Department of Education (hereinafter “DOE”) Committee on Special Education (CSE) at an annual review meeting held on February 24, 2010. The CSE recommended a month program in a special class in a specialized school with related services (Exh. 4).

In a due process notice dated, September 22, 2010, the parent through her attorney, alleged that the CSE committed both procedural and substantive errors in creating the student‟s Individualized Education Program (hereinafter “IEP”) for the 20102011 school year, resulting in a denial of a free appropriate public education (hereinafter “FAPE”) (Exh. 1). The parents placed their son at the for the 2010-2011 school year and are seeking tuition reimbursement.

THE POSITION OF THE PARTIES

The District representatives, , Esq. and , Esq., maintained that the Department of Education (DOE) offered the student a free appropriate public education (FAPE) for the 2010-2011 school year and that the offered placement would have adequately addressed the student‟s special education needs.

The parents‟ attorney, , maintained the DOE failed to offer the student FAPE for the 2010-2011 school year, that the is appropriate, and that the equities favored the parents, and that reimbursement of the tuition should be ordered.

DEPARTMENT OF EDUCATION’S CASE

The DOE‟s attorney, , presented the following documents; inter alia, parent‟s due process complaint (Exh. 1), due process response (Exh. 2), the Final Notice of Recommendation (FNR) (Exh. 3), and the Individualized Education Program (IEP) (Exh. 4).

Ms. , special education teacher assigned, testified that she is assigned to schedule appointments, obtain progress reports, handle cases for which she develops IEPs and conducts annual reviews (Tr. at 22). She testified that she has worked for the DOE for 27 years, formerly as a special education, education evaluator and an IEP teacher (Tr. at 22). She testified that she is NYC certified in special education, teaching and general common branches, and has a special education license from NYS (Tr. at 23). She further stated that she became familiar with the student because he attends , which is one of the private schools she is assigned to (Tr. at 24). She stated that she participated in the February 24, 2010 IEP review meeting, and that all participants were present for the entire meeting (Tr. at 25-6). She further stated that she was provided with school progress reports, and the classroom observation (Tr. at 26-27). She testified that the classification of was not changed from the prior year‟s IEP, but that the change from a month to a month school year was based on progress reports, and classroom observation (Tr. at 27-28). She stated that the change was based the progress reports, classroom observation and teacher reports during the CSE review meeting (Tr. at 28). She further stated that the student‟s related services were changed in that the was increased by two and from 40 to 45 minutes (Tr. at 29).

She stated that the student‟s did not seriously interfere with instruction and could be addressed by the special education teacher (Tr. at 33).

She further stated that the student was functioning on grade level in math, and grade level in vocabulary and grade level in reading comprehension. She further stated that the student has difficulty in solving word problems, written expression and remaining focused. She stated that the student‟s is in (Tr. at 30), and that a paraprofessional was recommended to help the student and address his (Tr. at 34). She stated that the transition plan begins with the long-term adult outcomes which are broken down into community integration, post-secondary placement, independent living and employment (Tr. at 42). She further stated that the factors which were considered in discussing the student‟s transition services were the progress report, discussion with the parent and the head of the school (Tr. at 42).

She stated that a was not conducted by the DOE because it should be conducted by the student‟s school and then provided to the DOE in order to develop a (tr. at 43). She stated that the IEP team developed a based on the previous IEP, interviewing the head of the school, and asked the parents if they were in agreement (Tr. at 43-44). She further stated that the supports recommended by the CSE team were, ,a paraprofessional and a system to link socially to verbal cues (Tr. at 44).

On cross, she acknowledged that she was a member of the which conducts annual reviews for private schools (Tr. at 47). She stated that upon reviewing the student‟s file she read a communication made by a guidance counselor at that the NYC public school would not have an appropriate school for the student (Tr. at 51), but that no one on the review team contacted the guidance counselor (Tr. at 52). She further stated that upon reviewing the student‟s file no additional evaluations were warranted, but if any new testing were required she would have conducted an educational evaluation (Tr. at 5253).

Ms. , assistant principal at , testified that she was employed by the DOE for 22 years and has been the assistant principal for 3 years (Tr. at 72). She stated that is a school for special needs children which is organized by the who are housed on the first floor, : classes which include students housed on the second floor, and classes housed on the third floor (Tr. at 75-76). She further stated that the school does not have grades but the students are grouped from ages (Tr. at 76). She further stated that the classes are broken down into the , and the . The is made up of students between and years of age. The juniors are from age and the seniors are from ages to (Tr. at 79). She also stated that the students are not separated by academic abilities, but are differentiated (Tr. at 81. She further states that differentiation is determined by how a teacher prepares their lessons in order to meet the students‟ needs and social them within their same age peers (Tr. at 81-82). She stated that the student would have been place in the , and the determination to place him would have been made after speaking with him (tr. at 91).

She further stated that a typical day during the summer school session of the is a communal breakfast, discussion of the previous day, and then the students go to their worksites (at 8:50am or 9:50 am to 12:30), they return for lunch and then review job skills(Tr. at 91). Typical worksite jobs are daycare, preparing meals, inventory, clerical, answering phones (Tr. at 93).

She stated that some of the students are and have to be toileted, but there are no smells, and the bathroom door is ajar but a screen is placed in front to allow the para to assist in (Tr. at 99). She further stated that she has not seen exposed wires or smelled toxic odors at the school (Tr. at 100).

She stated that upon review of the student‟s IEP, class would address the student‟s special education needs because there are students who are on the same functioning levels (Tr. at 96-97). She further stated that the school could have met the related services mandates for the 2010-2011 school year (Tr. at 98).

On cross, she acknowledged that there are no general education students at (Tr. at 104). She also stated that the school never identified a specific class for the student in July or September (Tr. at 111).

PARENT’S CASE

The parent‟s attorney , presented the following documents, inter alia, progress reports (Exh. A,B), Notice of Unilateral Placement (Exh. J), Neuropsychological Evaluation (Exh. L), 2010-2011 school contract (Exh. H).

The parent stated that she participated in the February 24, 2010 IEP review meeting by telephone and that she objected to her son‟s program being changed from a month to a month program, and that his placement at was not discussed (Tr. at 347).

She further stated that sometime in June 2010, she visited the which the DOE had recommended, and that she , observed , observed a wheelchair-bound student being t in public view , and smelled something similar to (Tr. at 349-350). She stated that she was informed that the students were participating in where they would be , and in a supermarket, which she did not believe was appropriate for her son given hiss capabilities (Tr. at 351-352). She stated that she was told that her son‟s classmates were classified as . She stated that her son needed role models and peers he could learn from (Tr. at 352353).

Dr. , psychologist, testified that he has conducted a number of evaluations of the student over the course of years beginning the year 2000 (Tr. at 136). He stated that the most recent formal evaluation was in 2008 in order to determine whether the current treatment regimen and educational plan were appropriate (Tr. at 138). He stated that the student‟s ability to learn has been impacted by his status, his - (Tr. at 140). He further stated that the student‟s verbal scores were consistent with his past scores, with improvement in his , however, his continues to be his working memory, and his , despite medication continue to be significantly affected (Tr. at 140). He stated that the student‟s processing speed is in the , and he has significant deficits in (Tr. at 143144).

He opined that the student cannot without , repetition, intervention and (Tr. at 145). He stated that traditional therapy, , and have been used to address the student‟s (Tr. at 145).

He further opined that the student would benefit from functional academics which teach him the skills needed to balance a checkbook, manage finances, go to the store, be able read enough to lead an independent life and career, and manage his thoughts (Tr. at 148).

He opined that the is a solid program which utilizes approach(Tr. at 152).

On cross, he acknowledged that he communicates with the student‟s parents every six months in order to determine if the student needs are being met and to make sure the program is working (Tr. at 155). He stated that the student‟s between the range because he is significantly with a host of based which affect his scores (Tr. at 162).

He opined that a special education environment which employs a small group, multi-sensory instruction, and which also addresses his is necessary for the student (Tr. at 162). He stated that during his evaluation of he observed the student exhibiting , repeatedly asking questions, unable to pick up on cues, unable to maintain physical boundaries and he was (Tr. at 163). He stated that the student‟s do not give a full picture of the student, who also has significant (Tr. at 166).

He stated that he spoke with the staff of during the 2010-2011 school year and was informed that the student was making academic progress with a lot of support, and was engaging with the other students (Tr. at 172).

Dr. , assistant head of , testified that he holds a doctorate in psychology and in his position at the school develops and maintains the program, supervises the staff, deals with students‟ issues, special education related service providers and works with parents (Tr. at 179-180). He stated that is a school for special needs students from ages The school has two programs, program, for students with deficits, and the to which is a more traditional high school which balances and (Tr. at 180-1). He stated that the school‟s mission is to have the students become as independent as possible, and includes functional academics (Tr. at 181). He further stated that a lot of attention is paid to students‟ (Tr. at 182). The school employs and four social workers, and approximately 15 classroom teachers who are special education certified (Tr. at 1834,187). He further stated that the school also offers all related services, has health paras and a available as well (Tr. at 189).

He further stated that the student is in the Program which has approximately 75 students grouped in classes of students each with a minimum of teachers (Tr. at 192-5). He stated that the student has strong symptoms, has difficulty with , and poor skills which the school is adept at addressing (Tr. at 193-4).

He further stated that when the student first came to the school he had a para, and it became clear that he did not need one and in order to promote his independence he was no longer provided a para (Tr. at 198). He stated that the student received , and (Tr. at 198-9). He stated that the student‟s basic math computation has improved (Tr. at 203-4).

He opined that the program at is very appropriate for the student, and that the student has made gains in areas, and progress in his critical areas of need (Tr. at 205).

On cross, he stated that he hold a general education license, and special education certification (Tr. at 207). He stated that there are personalized schedules for students which are modified based on the student (Tr. at 215). He further stated that the school does not have adaptive physical education, but does have a low impact program for students who need adaptive skills (Tr. at 216).

He acknowledged participating in the February 24, 2010 IEP review meeting but that there was no discussion that the student receive education (Tr. at 217).

He stated that the student was moved from the Program to the after observing and working with him over the course of the year and determining that he didn‟t need adaptive support (Tr. at 217).

, ELA teacher, testified that she hold a B.S. in childhood special education and a Masters in reading, writing and literacy, with a certification in childhood special education, and has taught at since 2009 (Tr. at 268-270). She stated that the student was in her grade ELA social studies class for the 2010-2011 school year (Tr. at 270-1). She stated that the student needs reading support in order to raise his reading level which is grade level, and needs tasks broken down and repeated, and requires redirection (Tr. at 24-71). She further stated that the student had trouble with interpersonal relationships, is distracted, challenges authority, and uses (Tr. at 272). She stated that these issues are addressed by , and preparing him for upcoming activities and assignments which he has positively responded to (Tr. at 272-3). She stated that the student teacher ratio was in a class with students ages (Tr. at 274-5). She stated that the ELA program is a combination of reading and writing workshops which are conducted in small group reading instruction, and whole class vocabulary and read alouds and with independent reading (Tr. at 279). She stated that the student has made over the year when he started to find books on his level he became able to comprehend and discuss them independently (Tr. at 282). She further stated that his and he began to effectively communicate his ideas (Tr. at 283). She stated that the student is in a small, guided reading group working with other students who have similar comprehension needs (Tr. at 285-6). She stated that during the 2010-2011 school year the student took

, which is a school-wide standardized assessment based on student‟s level administered twice a year (Tr. at 286-287). She stated that the student‟s testing results from the May testing illustrated an improvement in all areas, such as vocabulary, comprehension with his grade equivalency up to grade (Tr. at 287). She further stated that the student made progress in social studies by finding connections between the relevancy of the material to present day, and he was able to describe facts versus opinion and find the main ideas of texts (Tr. at 288). She further stated that the student greatest advance was in accepting instructive criticism and support from instructors (Tr. at 288). She stated that she meets biweekly with the student‟s related service providers to address his needs and create any necessary modifications, and she met once a month with the student‟s as well (Tr. at 289-0).

She opined that is appropriate for the student because his are being met on a daily basis, and the school is a supportive and nurturing environment (Tr.at 291).

On cross, she stated that the classifications of the student‟s classmates were requiring support in modeling appropriate behaviors (Tr. at 309). She stated that each student is given an internship based on their individual interest and the availability of the placement (Tr. at 311-312).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Prong One- Did the New York City Department of Education offer the student a free appropriate public education for the 2010-20100 school year?

I find that the Department of Education failed to offer . a free appropriate public education for the 2010-2011 school year.

The central purpose of the IDEA is to ensure that students with disabilities have available to them a free appropriate public education (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 ensures that the rights of students with disabilities and parents of such students are protected (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); see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009].

A free appropriate public education includes special 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]).

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]). A school district offers the student a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203), 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). The student‟s recommended program must also be provided in the least restrictive environment (LRE) (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]. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade” (34 C.F.R. § 300.101[c][1], 8 NYCRR 200.4[c][5].

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 special 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 learning 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 behavior 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 special education teacher of the student, a school psychologist, a school district representative who is qualified to provide or supervise special 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][viii].

The DOE failed to conduct an appropriate transition plan for the student. Transition Services means a coordinated set of activities for a student with a disability, designed within a results-oriented process, that is focused on improving the academic and functional achievement of the student with a disability to facilitate the student's movement from school to post-school activities, including, but not limited to, postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. The coordinated set of activities must be based on the student's strengths, preferences and interests, and shall include needed activities in the following areas: (1) instruction;(2) related services;(3) community experiences;(4) the development of employment and other post-school adult living objectives; and (5) when appropriate, acquisition of daily living skills and provision of a functional vocational evaluation. 34 C.F.R. §300.43(a); 8 NYCRR 200.1(fff). However, I find that the DOE‟s failure to conduct a transition plan was not a fatal flaw and could have been implemented at the assigned school once the student was enrolled.

The parent contends that the DOE failed to develop an Functional Behavioral Assessment (FBA). Prior to the development of the Behavior Intervention Plan (BIP) and FBA either „has [been] or will be conducted (“Guide to Quality IEP development and Implementation,” at p. 22, it does not follow that in every circumstance an FBA must be conducted and a BIP develop at the same time as the IEP (see, Cabouli v. Chappaqua Cent. Sch.) Although the DOE failed to develop an FBA, I find that the February 2010 CSE developed a BIP based on the progress reports, the parent and teacher interviews had appropriately negated the absence of an FBA as a fatal flaw to the IEP process.

The parents contends that the DOE‟s change in program ( month school year to month) should have been based on new evaluations. The DOE presented evidence that the change in length of program was based on review of the ‟s progress reports, discussion with the teachers at the February 2010 regarding the student‟s academic and social-emotional progress (Exh. A,B,K,5,6). According, I find that the documentation and information provided at the February 2010 CSE review was sufficient and did not lead to a denial of FAPE for the 2010-2011 school year.

The IDEA directs, that, an impartial hearing officer must issue a decision which is based on substantive grounds in determining whether the DOE has offered the student a FAPE (20 U.S.C.§ 1415[f][3][E][i].

The CSE failed to offer the student a FAPE in that its recommended program at .

was not appropriate to meet the student‟s special education needs.

State regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.1[ww][3][ii], 200.6 [a][3], [h][3]. State regulations further provide that determinations regarding the size and composition of a special class shall be based on the similarity of the individual needs of the students according to their levels of academic or education achievement and learning characteristics and their levels of social, and physical development and management needs (8 NYCRR 200.6[h][2].

The recommended class is made up of children who are grouped by age regardless of their functional levels. The “differentiated instruction” offered by the DOE does not support the student‟s need for instruction which addresses his special education needs. The offered placement merely provides vocational opportunities with minimal academic instruction. There is no evidence of how are integrated into daily lessons given the student‟s issues or academics are integrated into daily lessons for that matter.

Based on the evidence presented, I am persuaded that, had the student been enrolled in the DOE‟s recommended placement, the DOE would have failed to suitably group the student for instructional purposes in a manner consistent with the recommended special class set forth in the student‟s IEP. In total, the record supports the finding that the offered placement did not offer the student a FAPE for the 2010-2011 school year. Prong 2- Was the parents’ placement 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 special 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 special education needs, which include providing him with supports that are specially designed to address his needs. The parents also presented evidence of the student‟s academic, progress (Exhs. A, B, F, G, I). 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. Prong three- equitable considerations

Once it has been determined that the DOE failed to provide the student FAPE, and that the parent‟s placement of the student is in the is appropriate, a determination must be made as to whether equitable considerations require the DOE to reimburse .‟s tuition for the 2010-2011 school year. Where a student is not provided with FAPE and his private school placement is appropriate, an impartial hearing officer has “broad discretion in considering the equitable factors relevant to fashioning relief.” Gagliardo, 489 F.3d at 112.

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. 04-071.

Here, the record reflects that the parent fully cooperated with the DOE. The mother participated in the February 2010 CSE review. The parent also visited the DOE‟s offered placement and notified the DOE that she found the placement inappropriate and that it would not meet his needs.

Based on the record before me, the equities weigh in favor of the parents and the DOE shall reimburse the parents for the 2010-2011 tuition for the student at the

ORDERED, the Department of Education failed to offer the student a free appropriate public education for the 2010-2011 school year.

ORDERED, the Department of Education is to reimburse the tuition of the for the 2010-2011 school year;

ORDERED, the Department of Education shall reimburse the parents within 15 days of the parents‟ submission of proof of payment. Dated: December 5, 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 THE RECORD

PARENT

A Progress Report, 12/2010, 14 pp. B Progress Report, 3/2011, 16 pp. C Schedule, 1 p. D Information, Undated, 5 pp. E Disciplinary Policy, Undated, 1 p. F Mathematics Assessment from , 1 p. G Reading Assessment from , 1 p. H Contract of Enrollment for the 2010-2011 Academic Year, 2 pp. I Third Review, June 2011, 16 pp. J Notice of Unilateral Placement, 8/24/10, 6 pp. K Evaluation, Dates of the Evaluation: 5/13/08, 5/31/08,

6/6/08, 8/18/08, and 9/4/08, 17 pp. L Letter from the Parent to Ms. , 7/8/10, 1 p. M Personal Schedule for the , for the Student, Undated, 1 p. N Payment Affidavit, 4/28/11, 2 pp. O Individual Score Summary for the Student for the Test

Date of 5/20/11, 1 p. P Grade Score Summary, 5/9/11, 1 p. Q Information, Undated, 1 p.

DEPARTMENT OF EDUCATION

1 Due Process Complaint 9/22/10, 7 pp. 2 Due Process Response, 10/1/10, 4 pp. 3 Final Notice of Recommendation, 6/10/10, 1 p. 4 IEP, 2/24/10, 15 pp. 5 Classroom Observation, 1 p. 6 Progress Reports, 2009-2010, 17 pp. 7 IEP Meeting Minutes, 2/24/10, 1 p.