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: April 5, 2011

April 29, 2011

May 17, 2011

May 19, 2011

June 9, 2011 Actual Record Close Date: September 9, 2011 Hearing Officer: Edgar De Leon, Esq.

CORRECTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 5, 2011

Attorney — Student

Mother — Student

Special Education Teacher — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 29, 2011

Attorney — Student

Mother — Student

Attorney — DOE

Assistant Principal, School — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2011

Attorney — Student

Mother — Student

Attorney — DOE

Special Ed Teacher — DOE

Principal, School — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 19, 2011

Attorney — Student

Mother — Student

Teacher — Student

Headmaster — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 9, 2011

Attorney — Student

Mother — Student

Teacher — Student

Teacher — Student

Attorney — DOE

On January 13, 2011, 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), concerning a dispute involving the special education program of a ( old student attending a private school and the New York City Department of Education (“DOE”) District After the “resolution period” and having adjournments granted on consent or for cause, the impartial hearing was held on April 5, 2011, April 29, 2011, May 17, 2011, May 19, 2011 and June 9, 2011. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student’s Individualized Education Program (“IEP”) dated December 10, 2010 is procedurally and substantively flawed. (See Parent’s Due Process Complaint - “DPC”) Accordingly, the Parent unilaterally placed the student a private school for the 2010-2011 school year. (Id.) The Parent seeks reimbursement for the student’s tuition for the 2010-2011 school year, reimbursement for the costs of evaluations, reimbursement for the costs of transportation and “costs and fees.” (Id.)

THE DOE’S CASE

The DOE argues that the student is “ ” and completed the grade in a team teaching class during the 2009-2010 school year. (T-17-8) The student was recommended to return to the same public school for the 201-2011 school year. (T-18) The student’s classification is not in dispute. (Id.)

The agency further argues that the Parent’s request for tuition reimbursement should be denied because (1) the Annual Review team, on December 10, 2009, reaffirmed that the student was a student with a disability and continued to classify her as a youngster, which the parent did not contest in her ; (2) the DOE continued the student’s 2009-2010 public school placement, the Parent’s previous school of choice prior to unilaterally placing the student in a private school for the 2010-2011 school year;

(3) the unilateral placement selected by the Parent, which consists of two programs with separate contracts, the general education program and the “ ” is not educationally appropriate; and (4) the hearing record shows that the equities heavily favor the DOE. (See DOE Closing Statement)

The DOE called ( to testify on its behalf and submitted (15) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness was the student’s humanities teacher for the 2009-2010 school year. (T-25) She was the special education teacher in a “ ”) program. (T-26) The student was in her class ( week. (Id.) She participated in the student’s December, 2009 IEP meeting. (T-27)

The witness stated that her school is a “ ” so they take applications every year. (T-28) The student is considered to be in a rigorous curriculum. (T-29) She was the student’s teacher for the entire year. (T-31) Sometimes the student was . (T-33) It was interesting to see the student’s growth over the course of the year. (Id.) The student was for the most part. (T-36-7) She taught the student humanities for in a group of ), twice a week . (T-38) The student grew at lot in terms of her . (T-37) There are two teachers in the classroom, one who is licensed in special education. (T-40) In the student’s class there were ( , ( students. (Id.)

The witness stated that the regular school day ended at 2:10, but then twice a week they had “ ”). (T-41-2) That was another . (T-42) Students can come there if the feel that they on something. (Id.) She believes that the student generally went to that and to . (Id.) Occasionally, the student would come in . (Id.) For extracurricular activities, the school has a drama club, creative writing, a sports club, a science lego club, basketball, baseball, soccer, track, cross country, a gay straight alliance assembly, an Asian culture club and a black studies club. (T-42-3)

The witness stated that from her perspective, the student seemed and . (T-43) One resistance point for the student was the skills class because the student felt it identified her as having a or as being in special education. (Id.) In her class, the student did very well and not just in relation to the special education students. (T-44) The student performed well on formal and informal assessments. (T-45) The student was also very good in terms group projects. (Id.)

The witness stated that the meeting on December 10, 2009 was an “annual review.” (T-46) There were (10) special education students in her classroom. (T-47) The student had just had a “ ” in May and was school, so there was never a request during the IEP meeting to have the student re-evaluated. (T-48) The Parents agreed with the recommendation for the student. (Id.) None of the participants at the meeting objected to the recommendation. (T-49) The student participated in the meeting for approximately (15) to (20) minutes. (T-50) The student expressed her dissatisfaction with having to take the skills class. (T-51) She would have rather taken Spanish. (Id.) However, her recollection is that the Parents and the teachers felt as though the skills class was good for the student. (T-51-2)

The witness stated that after the student left the meeting, the Parents talked about their family situation and that they should be aware that they . (T-52) This was a challenging thing for the student. (Id.) The Parents were very . (T-52-3)

The witness stated that they have the IEP already drafted for the meeting, but they wait to finalize the document after they get input from the Parents. (T-53) She was never told that there was a change of address for the Parents. (T-54) To draft the IEP, they review the student’s portfolios, the records from their previous standardized test scores as well as any periodic assessments that took place the previous year. (T-56) They also review the student’s old school assessments and her old IEP. (T-57-8)

The witness stated that the student’s academic management needs are the use of graphic organizers and pre-writing strategies. (T-61) , the student was in class. (T-62-3) As she grew, the student became more comfortable in the classroom because she is a very . (T-63) The student was always very . (Id.) The student had . (Id.) The student had some about having a and that she was a . (T-64) The student was successful in group projects, reading quizzes, group discussions and in particular literary discussions. (T-66) The Parents never told her that the student had that may impact her performance in school. (Id.)

The witness stated that the student’s reading comprehension was and her writing was assessed slightly below . (T-67) The student’s goals were discussed at the IEP meeting. (T-68) The student was part of a “transition class” in grade were they met once a month with the in a small group setting. (T-71) They talked about at the IEP meeting as being there for the student on an as needed basis. (T-72) There was nothing in the student’s or in the situation to say that they thought she should be seen in a . (T-72) To her recollection, the Parents did not ask for to be mandated for the student. (T-74)

The witness stated that they have a separate classroom for children with IEP’s or with 504’s for extended time testing in a separate location. (Id.) The Parents agreed that it was good to keep the student in a class. (T-75) The meeting was held at a point in the year where they would have considered giving the student SETSS. (Id.) This was not a review, so the student’s placement was not going to be in question in the annual review unless the Parents requested a re-opening of the case. Her recollection is that one of the Parents main concerns had to do with the student’s . (T-78)

The witness stated that they have two parent/teacher conferences, one in November and one in February. (Id.) In June, the student came to them and asked for recommendations for a school because her Parents were looking at a private school for her. (T-81) They wrote recommendations for the student. (Id.) They were surprised that the Parents were looking at other schools because the challenging curriculum at their school was good for the student. (T-82)

The witness stated that the student scored a ( ) on the New York State math exam and . (T-84) She was told that if the student got ). (Id.) It was recommended that the student attend . (T-85) The student would have had to at another location because their school was . (Id.) The student does . (Id.) However, she scored a ( ) in English

ELA. (Id.) To her knowledge, the student never took the exam again. (T-87) At her school, the student would not have had to repeat the grade. (T-90)

On cross examination, the witness testified that there are (190) students per grade at her school. (T-92) There are three grades. (Id.) The building also . (Id.) There are somewhere around (15) students in the grade at the school have IEP’s. (T-96) They have students with and . (T-99) They do not have any students with . (Id.)

The witness stated that a school psychologist was not present at the December IEP meeting because it is only required at a and not at an annual review. (T-101) There was no Parent Member present from the district at the meeting. (T-102) She did review a or report at the meeting. (T-103) They did not discuss having the student evaluated because that was done in May at the triennial review. (Id.) The Parents did not request to have the student evaluated. (T-104) During voir dire the witness stated that she doesn’t have any specific knowledge that evaluations were in fact conducted for the student in May. (T-106)

The witness stated that no one at the meeting requested specific documents or reports from the Parents. (T-112) There were no revisions to the IEP they drafted. (Id.) She knew that the student had some . (T-113) The IEP does not recommend counseling. (T-114) She believes that the Principal can request that a student be reevaluated at an annual review. (T-116) The student was at the IEP meeting because she wanted her mother to say that she did not have to be in the class. (Id.) Her understanding is that unless the Parent ask that a student be retained, they cannot stay in grade in a public school if they do not school. (T-118) Promotion to the grade does not necessarily indicate that there has been progress. (T-119)

The witness stated that in one 6th grade class they had (31) students and in the other, there were (30) students. (T-121) The student’s December 2009 IEP makes no reference to the student’s diagnosis of . (T-124) Neither is there any reference to the student’s diagnosis of and , specifically . (T-125) There no goals addressing - or relating to the . (T-126)

The witness stated that as a she pulls out small groups of kids during the class. (T-126) It can happen a couple of times a day, or two or three times a week, but not every period. (T-127-8) Almost every day they conference with kids and sometimes those conversations go out into the hallway. (T-128) There was no re-direct testimony taken from the witness. (T-131)

The DOE’s second witness is the Assistant Principal at the public school the student attended the grade in last year. (T-147) She was a Guidance Counselor and Director of Student Support Services before becoming an Assistant Principal at the school. (T-148) She works on a 12-month calendar. (Id.) Their admission process includes a screening and an admissions test. (T-149) The decision is made by an admissions committee. (Id.) They school is a grade. (Id.) Collaboration and compassion are two tenants that they feel strongly about imparting to their students. (T149-50) They have special education programs which include collaborative team teaching on every grade, as well as special education teacher support services on each grade. (T-150)

The witness stated that they have (6) grade classes. (Id.) Collaborative team teaching is done for each grade. (T-151) There are ( ) classes on each grade level. (Id.) The majority of students who have IEP’s with a program receive or have the option of receiving an additional enrichment class for both the humanities and math sections. (T-151-2) Any related service that is indicated on a student’s IEP will be provided. (T-152) facilitate small group meetings with their on a monthly basis termed “transitions.” (T-153) They have an e-mail notification system that invites all parents to participate in any special meetings and upcoming events. (Id.) Parents are invited to be a part of the school leadership team. (T-154) They also have a Parent Coordinator and a school website. (Id.)

The witness stated that for the 2009-2010 school year, the student was in the . (T-155) For the 2009-2010 school year, the student received a “ grade in humanities, music and enrichment humanities. (T-158 & D-7) She received a “ ” grade in math and a score of “ . (Id.) In her enrichment in math and science class, the student received an “ ” grade. (Id.) However, the student was not promoted to the grade. (T-159) The student received , but there is a promotional criteria set by the Department of Education that also includes a student’s performance on the standardized examination in math and English language arts. (T-160) The student scored a “ ” one her spring 2002 state math examination. (T-161)

The witness stated that after the “appeal portfolio”, if the student still did not meet the promotional criteria, they would be encouraged to school so that they could be prepared to in August. (T-162) The student was not far from ” . (T-163) When a student fails a and does not retake it they would have to . (Id.) In June of 2010, the student’s Parents were informed that the student needed to school. (T-165) school was a instruction. (T-166) When a student just needs to , they’re not mandated to session. (T-166-7) A student can take the without having gone to summer school. (T-168) For grade, the state examination is the ultimate deciding factor. (T-169)

The witness stated that the student’s report card grades indicate that she passed her courses for the 2009-2010 school year. (T-171) If the student had scored a level “ or higher on the state math examination she would have been promoted to grade. (T-

172) She and the student’s teacher sent e-mails to the student’s mother regarding . (T172-3 & D-4, D-5) They also tried to . (T-173) They received a response from the student’s mother stating in sum, substance and relevant part: “Anyway, we have decided to look into alternative solutions in terms of [“student name”] and summer school…The has served her well and her teachers, we feel, are fantastic. But we are not sure if it is enough anymore….” (T-174 & D-5) The student did not exam. (T-179)

On cross examination, the witness testified that her school with schools. (T-

185) Her school has (559) students. (Id.) The high school in the building has (520something) students. (T-186) The second school in the building has approximately (500) students. (Id.)

On re-direct testimony, the witness testified that they have the IEP written before the meeting and then make any last minute changes the parents may want. (T-200) The student’s classification may not be changed at an annual review. (T-202) The student’s Parents never contacted her to revise any aspect of the IEP. (T-205) The Parents did not object to any aspect of the student’s program during the 2009-2010 school year. (Id.) The student’s psychologist never contacted her regarding the student’s progress.

On re-cross examination, the witness testified that the Parents can request to have a case reopened. (T-208) She did not feel the need to initiate a re-evaluation of the student. (T-212) During voir dire the witness stated that the IEP was drafted prior to the meeting and there were no changes made to the IEP as a result of the meeting. (T-213) The IEP was subsequently mailed to the Parent. (T-214) The Parent did not object to the IEP. (Id.) Changes could be made to the IEP without another meeting unless there are a lot of problems with it. (Id.)

The DOE’s third witness and final witness is the Principal of the school the student attended in the grade. (T-216) This is her third year as a and she works on a 12-month schedule. (T-219) She was working in the summer of 2010. (T-219) They informed the Parent on August 2nd that the student needed to sit for the state exam and when that exam would be. (T-220 & D-15) She was not contacted by the Parent as a result of the letters she sent. (T-220-1) The Assistant Principal told her that the Parents were looking into private schools. (T-222)

The witness stated that there was a seat for the student in the school for the 20102011 school year. (T-227) The Parents never contacted her to request a re-evaluation of their IEP. (Id.) Neither did the Parents contact her to discuss the student’s academic progress or lack thereof. (T-228) There was no cross examination of the witness. (T228-9)

THE PARENT’S CASE

The Parent argues that there is no dispute that the student has a . (T-19) The student suffers from a and . (Id.) On or about July 8, 2010, the Parent requested a CSE meeting for the 2010-2011 school year. (Id.) There is no dispute that the CSE never convened a meeting for the 2010-2011 school year. (T-20) The state regulations provide for evaluations more than once a year. (Id.) The CSE meeting that was held in December of 2009 was procedurally and substantively flawed and lasted no more than

(10) minutes. (T-21)

The Parent argues that the private school is an appropriate environment for the student. (Id.) The private school is an school where one-third of the students have IEP’s. (T-22) The classroom teachers regularly use special education techniques and strategies in their lesson plans to address the special needs of the children. (T-22) Classes rarely have more than (13) to (14) students. (Id.)

The Parent states that in SRO No. 10-101, the State Review Officer found that the Parents of the private school are entitled to tuition reimbursement for more than merely the “ .” (T-23) The DOE deprived the student of FAPE by failing to address any of her actual diagnose in its December 10, 2009 IEP. (See Parent’s Closing Statement) What’s more, there can be no doubt that the private school addressed the and other deficits this past school year. (Id.) Finally, the Parent demonstrated her full cooperation with the IEP review process in December, 2009. (Id.) Thereafter there was no CSE meeting convened in response to the Parent’s request. (Id.) Accordingly, the DOE cannot be heard to argue that the equities somehow favor it after failing to respond to the request for a referral in July, 2010. (Id.)

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

The Parent’s first witness is the student’s mother. (T-230) She stated that the student is ( old. (Id.) The student is currently in the grade in a private school. (T-

231) She first noticed when she was in the grade. (Id.) She had the student evaluated by a in 2005. (T-232 & P-K) The student was diagnosed with and a . (T-

233) The student was first classified by the DOE in the grade. (Id.)

The witness stated that the same did a re-evaluation of the student in 2008. (T234 & P-L) The results were similar to the student’s first evaluation. (T-234) Prior to December of 2009, she participated in IEP meetings and provide the DOE with both evaluations. (T-235) The student was in a public school for the grade and she very quickly. (Id.) Certain things were being misrepresented to her by the DOE. (Id.) The student was in a program and . (T-236) The large class size did not help. (Id.)

The witness stated that she would attend the Parent/Teacher conferences and see report cards that reflected something complete different from what was actually happening in the school. (T-237) She liked the school and wanted it to work. (Id.) She decided to remove the student from the public school at the end of the school year when she received a phone call from the Assistant Principal who informed her that she did not think the student and there was a chance that she would have and then . (T-237-8) They had not even received the test scores yet and she does not know what the DOE was basing its decision on. (T-238) She had the student re-evaluated because she wanted to make sure that her were on par. (T-239)

The witness stated that the student saw a about twice a month for one hour. (T240-1) The psychiatrist diagnosed the student with , an and a . (T-241 & P-D) She decided to enroll the student in her current private school in June of 2010. (T-242) The private school had smaller classrooms, (30%) of the student body had an IEP, they have a “ ” extra support program and the teachers are trained to handle cases like the student’s. (Id.) The ” program allows the Parents to keep in constant contact with the school. (Id.) She can go on “ ” to make sure the student has not forgotten anything and the student has to e-mail her advisor every day. (T-243)

The witness stated that the student’s performance in the private school and her self-esteem has improved. (T-244) She attended the student’s annual review in 2009. (T-245-6) The meeting lasted for less than ( ) minutes and “ ” was recommended for the student. (T-246) In July she sent a letter to the DOE requesting another meeting. (T247 & P-C) The CSE never responded to her letter. (T-248) She advised the CSE that she would be enrolling the student at the private school. (T-249) Academically, the student has never done better. The student says she , they listen to her at the private school and the . (Id.) The student was on the for the at the private school. (T250)

On cross examination, the witness testified that when she wrote the letter to the DOE on July 8th, she had already determined that the student would attend the private school for the 2010-2011 school year, unless the DOE came up with another alternative. (T-252) In December, she provided the DOE with the evaluation that was done in July. (T-254-5 & P-F) She does not know what teachers the spoke to at the public school when the evaluation was done. (T-255-6) The student has always . (T-256) The student did in fact complete the grade. (T-257)

The witness stated that she does not agree with the e-mail she wrote stating that the student had a great year at the public school. (T-259 & D-4) Neither does she agree with the statement she wrote that the student was lucky to have such wonderful teachers at the public school. (T-260 & D-4) Later she said she did think the teachers were great, but that it just was not working for the student. (T-261) It did not have to do with the student having to school. (Id.) The student school or . (T-261-2) Instead, the with her. (T-262) Had the student remained in public school, she would have . (Id.)

The re-direct examination, the witness stated that she never had in her possession a copy of the administered through the Education Records Bureau. (T-264) On recross examination, she stated that she does not have a copy of the student’s application to the private school. (T-263)

The Parent’s second witness is the student’s grade English teacher. (T-271) She has worked at the ) years. (T-273) She is also the Parents’ Event Coordinator at the private school. (T-274)

The witness stated that there are (13) students in her class. (Id.) The student is diagnosed with , , , and , , , and . (T-275) About (75%) of her students have . (Id.) About (80%) of her students have . (Id.) She requires the student to and her - , , has her , and . (T-276-7) The student is one of the leaders in the class in terms of activities. (T-280)

The witness stated that she provides each student with an individual folder that they use to review for a test or quiz, which has all of their notes in one place. (T-281) She also provides the class with a and on “ .” (T-282) She students should . (T-

283) She also uses a lot of . (T-284) The student is a very learner. (T-285) The grade classes met in the once a week. (Id.) The student struggles with developing in chronological order. (T-286)

The witness stated that she feels the student has gained a lot more confidence than in the beginning of the year in her and with . (T-289) She meets with the - to address her writing. (Id.) She writes a in all of her areas. (T-290) The student has developed really and is more confident. (T-291) She has improved in terms of her , , , and is able to develop a . (Id.) The student is also more has . (Id.) She believes this is due to the private school’s small class size and “ ” which meets before school, after school and twice during the school week. (T-292)

On cross examination, the witness testified that she become familiar with the student’s from the head of the “ ” program. (T-293) She also received notes from the school . (Id.) She does not believe the student is a “ .” (T-295-6) She has seen the student struggle in reading throughout the school area. (T-297) She is not a special education teacher. (Id.) There was no re-direct testimony taken from the witness. (Id.)

The Parent’s third witness is the Headmaster of the private school. (T-299) He has been the Headmaster since the private school was founded in 1969. (T-301) The original mission of the private school was to found a traditional structured school. (Id.) Every ten years they are accredited by the . (T-304) In 1997, they used the IDEA model and created the program. (Id.)

The witness stated that they have (354) students in the school and about (110) of them are in the program. (T-305) This year’s valedictorian and the salutatorian were both in the program and came from a special school. (Id.) The program is not designed to be a permanent program. (T-306) The grades are . (Id.) Many teachers teach one subject and mix with the regular faculty. (T-308-9)

The witness stated that the private school starts at 8:45 AM, but students start at 8:00 AM. (T-311) The teacher makes sure the student is ready for school. (Id.) There is no separate curriculum. (Id.) Then every Monday-Thursday, the teachers meet their students after school from 3:15 to 4:00 PM. (Id.) They require all students who enter the program to have a evaluation and most of them have an IEP. (T-312) One of the accommodations for students is that they are exempt from taking “ ” because they have problems. (T-313) Two of the student’s five subject teachers are certified in special education. (Id.) Other accommodations include (T-314) The atmosphere at the private school is one of school. (T-315) Class sizes are about (11) or

(12) students. (T-316)

On cross examination, the witness testified that he was a part of the student’s admission committee. (T-317) “Conference notes” about the students are given to the teachers at the beginning of the school year. (T-319) The student is obviously “ .” (T-

325) The private school teachers are paid to testify because it is not a part of their contract. (T-326) There was no re-direct examination of the witness. (T-327)

The Parent’s fourth witness was the student’s teacher for the past school year. (T-

334) She is a teacher. (T-336) She has a special education degree for grades (1) through (6). (T-337) The program is a program where each teacher is assigned (10) to

(12) students that range in graders and meet with them every morning and afternoon and throughout the week individually. (Id.) The morning sessions are (30) minutes long, the afternoon sessions are (45) minutes long and the twice a week individual sessions are

(42) minutes long. (T-338)

The witness stated that she knows the student’s from copies of her evaluation which she has reviewed. (T-339) Each student at the private school is given a planner and a homework folder. (T-340-1) Every teacher has a page on “ ” to post whatever they feel is necessary to post, including weekly and nightly homework assignments and progress reports. (T-344-5) The student every week to check her “ report and to do . (T-346)

The witness stated that to address the student’s , she uses and talks about the important of taking class notes. (T-347) The student is . (Id.) To address the student’s , she uses a lot of graphic organizers, editing and helps her write full sentences. (T-352) Visual concepts, drawing diagrams and a lot of . (T-353) For reading comprehension, she works closely with her “ ” teacher who is also a teacher. (T-355) She worked with the student on annotating and taking notes from novels that they were reading in her class. (T-355-6) They have a small staff and a few times a week she communicates with the student’s teachers. (T-357)

The witness stated that the student has had an exceptional year where she has . (T-359) , the student has progressed a lot. (Id.) The smaller classrooms and the teacher to student ratio really do suite the student. (T-360)

On cross examination, the witness testified that she did not know if she was getting paid for her testimony. She sees (11) students individually, but in her group she has (10) students. (T-360) The students range from grade. (T-361) The student is very outgoing, expresses herself well, loves science, is strong in English and is quite . (Id.) She does not know that student’s . (Id.) They check evaluations to make sure that they are dated within a certain amount of time. (T-362) If the evaluation is out dated, their supervisor asks the parent to have the student re-tested. (Id.) She read the student’s report. (T-363-4) She does not have a background in . (T-364) Information from the evaluation is transferred onto the “conference notes.” (T-364-5) She saw the student’s conference notes in September. (T-366)

The witness stated that she believes she has seen the student’s IEP. (T-373) She is able to meet the student’s math needs. (T-374) She has never transferred a student to another teacher because of the student’s . (T-376) There was no-redirect examination of the witness. (T-379)

The Parent’s and final witness is the student’s grade world geography class teacher. (T-381) He has been teaching for (13) years at the private school. (T-382) He is a history teacher and Chairman of the history department. (T-383) He has a permanent special education license. (Id.) There are (13) students in the student’s class and . (T-384)

The witness stated that they receive a series of “conference notes” from the resident psychologist who distills all of the evaluations that have been done on each child and gives them a list of their strengths, weaknesses and areas of accommodation. (T-384) To address the student’s he gives her , , changes the way the lesson is presented, , and a . (T-386) have been of value to the student. (T-388)

The witness stated that the student is and she has been and in taking . (T-

391) He has designed a planner for all of the students. (T-392) He looks in the planners to see whether, in fact, the students have followed through. (T-395) The planner has been very helpful to the student. (Id.) To address the , he breaks up the materials. (Id.) He does the same thing to address the student’s and . (T-397 & 400)

The witness stated that he uses a kind of graphic organizer called “ ”, where he puts the main topic inside of a big oval and then will draw several lines branching out from the oval to talk about details, or information that supports that larger idea. (T-404) He also teaches the students three different ways of writing an outline: “ ”, “The ” and the . (Id.) The student would select which format works best for her. (T-405) To address the students’ which the more they do successfully, the more goes down. (T-406) He communicates with the by posting the student’s progress status on “ .” (T407)

The witness stated that the student receives it. (T-408) She is allowed to use a them. (Id.) The student has definitely progressed, . (Id.) She has managed in large part to keep pace with the . (T-409) . (Id.) He definitely feels that the private school is appropriate for the student. (T-410)

On cross examination, the witness testified that the student’s are her . (T-

411) The student is also and . (T-411-2) They get a binder at the private school with a profile of every student that we teach. (T-412) He does not know the date of the that was used to write up these conference notes. (T-413) He was not aware that the student is grade. (T-415) He was being paid for his testimony today. (Id.) There was no re-direct examination of the witness. (T-415-6)

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 Tucker v. Bay 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 board of education 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 37071; 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 teachers 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).

I must first decide whether the DOE offered the student a FAPE for the 2009-2010 school year. Accordingly, I turn to the question of whether the student’s IEP dated December 10, 2009 was properly prepared. (P-A) Did the DOE comply with the procedural requirements set forth in the IDEA, and is the IEP developed by its CSE through the IDEA's procedures 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])

There is evidence in the record that required members of the CSE team were not present at the December, 2009 IEP meeting. Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student. (emphasis added)

Testifying for the agency, the student’s humanities teacher conceded on cross examination that a school psychologist and a parent member did not attend the December 10, 2009 IEP meeting. (T-101-2 & P-A) It is the duty and responsibility of the CSE to ensure that a Parent can effectively participate at the CSE review. SRO Decision 02-013 provides relevant analysis in this regard:

It is well settled that an IEP prepared by an invalidly composed CSE is a nullity (Application of a Child with a Disability, Appeal No. 99-27;

Application of a Child with a Disability, Appeal No. 95-8). Respondent argues that petitioner did not raise the issue of a parent member of the CSE at the hearing. I note, however, that petitioner’s attorney inquired of respondent’s witnesses whether a parent member was present.

The law requires that an additional parent member participate in the CSE meeting unless the student’s parents have affirmatively requested that the additional parent not participate (Educ. Law § 4402[b][1][a][viii]). I disagree with the hearing officer that the parent effectively waived the presence of a parent member simply on the basis of attending the meeting with an advocate, and because she failed to complain at the meetings or at the hearing. A parent must affirmatively request that the parent member not attend the meeting in order to waive the requirement, which is otherwise mandatory (8 NYCRR 200.5 [c][2][v]; Application of a Child with a Disability, Appeal No. 01-096;

Application of a Child with a Disability, Appeal No. 01-079)….There is nothing in the record to suggest that petitioner requested in writing that the parent member not attend the 2001-02 annual review….

Respondent argues that the role of the parent member was filled by the parent’s legal advocate, especially since she resided in the district and had a child with a disability. I do not find this argument persuasive, as it is the school district’s responsibility to have a properly composed CSE, including a parent member appointed by the Board of Education. Since there was no parent member of the CSE present any of the three annual review meetings, the 2001-02 IEP was not prepared by a validly composed CSE and is a nullity. I therefore do not need to discuss the other procedural and substantive issues related to the IEP.

I also find that the December 10, 2009 IEP in this case is a nullity because it did not include a Parent Member and a School Psychologist. Accordingly, the IEP was not properly constituted under law. Notwithstanding the same, I further note for the record that the absence of a School Psychologist may have resulted in the DOE’s failure to create an IEP that accurately reflects the student’s evaluations. As stated above, 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). Here, the Parent testified that she provided the student’s 2005 and 2008 evaluations to the CSE at the December 10, 2009 IEP meeting.

(T-235 & P-K, P-L)

The student’s Evaluation dated February 2, 2005, diagnoses the student with . (P-K, pg. 11) The dated November 19, 2008 makes the same diagnoses. (P-L, pg.

19) Nevertheless, the student’s public school humanities teacher conceded that the December 9, 2010 IEP makes no reference to the student’s diagnoses of , or her , and . (T-124-5)

While school districts are required to comply with all IDEA procedures, it is also true that not all procedural errors render an IEP legally inadequate under the IDEA. (See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE. (See J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). 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 if the IEP affords the student with an opportunity greater than mere "trivial advancement." (See Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), In other words, the IEP must be likely to provide some "meaningful" benefit. (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]). In the case at bar, I believe that the IEP’s failure to address her diagnosed ADHD, anxiety, learning disorder and specifically slow processing (T-124-5) also renders the document substantively flawed. Accordingly, I find that the DOE failed to offer the student a FAPE for the 2009-2010 school year.

I now turn to the question of whether the student’s private school placement is appropriate. Here, the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

There is ample testimony in the record from the student’s private school teacher and her geography teacher, that the private school is addressing her , reading comprehension, written expression, anxiety and executive functioning. (T-347-56, 386 & 395-406) To address the student’s deficits in written expression, the teacher uses a lot of graphic organizers, editing and helps the student write full sentences. (T-352) She uses visual concepts, drawing diagrams and a lot of repetition to help the student with math. (T-353) For reading comprehension, she works closely with her “ ” teacher who is also a teacher. (T-355) She worked with the student on annotating and taking notes from novels that they were reading in her . (T-355-6) To address the student’s , the private school geography teacher gives the student , and , uses , to participate, changes the way the lesson is presented, , and a . (T-386) He said have been of value to the student. (T-388) The “planner” he designed for the school has been helpful to the student and he breaks up the student’s materials to address her , reading comprehension and written expression. (T-395-400) Graphic organizers and outlines are utilized and having the student give oral reports and be successful at doing so, helps her and other student . (T-404-6)

There is also ample evidence in the record that the student is progressing at the private school. The student made the at the private school for the first time. (T-250) The student is said to have than in the beginning of the year in her academic abilities and with . (T-289) She has developed really of her to . (T-291) She is also more , and has . (Id.) The record also includes testimony that the student and a lot and progressed . (T-359) Finally, the student is said to have in large part kept pace with the demands of the school year. (T-409) For all of the reasons above, I find that the student is appropriately placed at the private school.

I now turn to the final question of whether equitable considerations in this case bar an award on behalf of the Parent. The Parent’s motive for placing the student in the private school is likely due to the fact that the student would have to have attended summer school to graduate. In June, the student asked her humanities teacher for a recommendation for a private school. (T-81) This is also when the DOE informed the Parent that the student needed to attend summer school. (T-165) Instead of having the student , the Parent and student . (T-261-2) Had the student remained in public school after doing so, over. (Id.)

The Parent conceded that her writing to the DOE was disingenuous when she stated that she does not agree with her e-mail stating that the student had a great year academically and socially at the public school. (T-259 & D-4) Neither does she agree with the statement she wrote that the student was lucky to have such wonderful teachers at the public school. (T-260 & D-4) Later she said she did think the teachers were great, but that it just was not working for the student and denied that it had anything to do with the student having to attend summer school. (T-261) I did not find this testimony credible.

Nevertheless, there is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. She attended the CSE meeting and provided the DOE with the student’s independent evaluations. (P-A, T-232-4, P-K & P-L) She requested that the CSE re-convene on July 8th, long before the school year had begun. (P-C) Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parent.

The Parent in this case also request reimbursement for the costs of evaluations.

(DPC) If the Parent disagrees with an evaluation obtained by the school district, the Parent has a right to obtain an independent evaluation at public expense. Regulations of the Commissioner of Education § 200.5(g). (“NYCRR § 200.5”) If the Parent request an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent evaluation is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 8 NYCRR § 200.5(g)(iv). Additionally, 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) provide that if a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.

Here, the Parent did not object to DOE evaluations, but instead sought independent evaluations for the student of her own volition. (T-231-4) The DOE did not initiate the impartial hearing in this case and neither did I as the assigned IHO request evaluations. Accordingly, the Parent’s request for reimbursement for the costs of evaluations must be denied.

The Parent also request reimbursement for the costs of “transportation” and “costs and fees.” (DPC) State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination. The decision shall reference the hearing record to support the findings of fact." (See 8 NYCRR 200.5[j][5][v]) Here, the record is devoid of any evidence of the student’s need for transportation and/or the cost and fees incurred by the Parent. Accordingly, the Parent’s request for reimbursement of “transportation” and “costs and fees” must be denied.

For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that she has met her burden under Schaffer to prevail in her request for tuition reimbursement.

NOW therefore, it is hereby

ORDERED that the Parent’s request for tuition reimbursement is GRANTED. Upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent for the cost of the student’s tuition at the private school for the 2010-2011 school year; and it is further

ORDERED that the Parent’s request for reimbursement for the costs of evaluations is DENIED; and it is further

ORDERED that the Parent’s request for reimbursement of “transportation” and “costs and fees” is DENIED. Dated: October 14, 2011

Corrected Date: October 17, 2011 (Body of Decision Has Been Changed)

____________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED:jj

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 IEP, 12/10/09, 14 pp. B Enrollment Contract, 6/28/10, 4 pp. C Parent Letter, 7/8/10, 1 p. D Letter Dr. , 7/24/10 Update, 7/25/10, 9 pp. F Parent Letter, 10/2/10, 1 p. G Report, 1/6/11, 1 p. H Impartial Hearing Request, 1/13/11, 6 pp. I 3rd Quarter Report Card, 4/7/11, 1 p. J Proof of Payment and Tuition, 7/2/10, 5 pp. K Evaluation by Dr. , 2/2/05, 24 pp. L Evaluation by Dr. 11/19/08, 42 pp.

DEPARTMENT OF EDUCATION

1 Impartial Hearing Complaint, 10/6/10, 6 pp. 2 IEP, 10/10/10, 10 pp. 3 Report Card, 12/23/10, 1 p. 4 Email, 6/24/10, 2 pp. 5 Email, 6/24/10, 1 p. 6 Letter, 7/1/10, 2 pp. 7 School Transcript, 9/20/10, 1 p. 8 Subpoena, 3/9/10, 2 pp. 9 Letter, 3/17/10, 1 p. 10 NYS Exam History, 3/17/11, 1 p. 11 Final Notice of Recommendation, 5/15/09, 1 p. 12 Subpoena, 4/13/11, 2 pp. 13 Letter to Dr. , 4/13/11, 1 p. 14 Subpoena, 4/22/11, 4 pp. 15 Letter from Principal to Parent, 8/2011, 2 pp.