New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student‟s Name:

Date of Birth:

District: 2

Hearing Requested By: Parent

Date of Hearing: May 16, 2011

June 6, 2011

June 13, 2011

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2011

Attorney — Student

Attorney — Student

Parents

DOE Attorney — DOE

DOE Psychologist (via telephone) — DOE

Assistant Principal (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 6, 2011

Attorney — Student

Attorney — Student

Parents

Teacher, School (via telephone) — Student

DOE Attorney — DOE

Nurse (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 13, 2011

ESQ., Attorney — Student

ESQ., Attorney — Student

Mother — Student

School Program Director — Student

Worker (via telephone) — Student

ESQ., Attorney — DOE

— DOE

On February 23, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of B. The parent requested the hearing on February 23 (1) to challenge the alleged failure of the Committee on Education for District 2 (the “CSE”) to provide with a free appropriate public education for the 2010-2011 school year and (2) to seek reimbursement and/or payment for tuition expenses at the School, a non-public education school, for the 12 month school year commencing July 2010. The hearing convened on May 16 and was continued on June 6 and June 13.

The compliance date for the submission of this written decision was extended to June 7 and July 7 order to permit the school district‟s and the parent‟s witnesses to be available. The compliance date was then extended to August 6 to permit the parties to file written closing statements and for the hearing officer to consider those statements in the preparation of this decision. The record closed on July 8 upon the receipt by the hearing officer of the parties‟ written closing statements. Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

is a year-old boy who attends the School in Manhattan. His disability is classified, for the purposes of the IDEA, as . This classification is not in dispute. has been diagnosed with and an to . He has attended the School since April 2007. The School District‟s Case

Dr. , a school psychologist employed by the Department of Education at the CSE, testified that she had a doctorate degree in psychology and a master‟s degree in education and was a certified and general education teacher (trans. 25-26). Dr. participated in the CSE‟s annual review for for the 2010-2011 school year (trans. 26). The CSE convened on May 26, 2010 and recommended that attend a 12 month class in a school and receive the related services of therapy (three 30 minute periods per week individually) and and therapy (four 30 minute periods per week individually and one 30 minute period in a group of 2 students) (Department Ex. 1).

Dr. described the program as “a class with children with developmental delays who also have specific problems with , ization” which provides a “structured environment” with the support of two adults (trans. 28). According to Dr. , the CSE “felt that due to [ ‟s] constellation of disorders,” including , mild mental retardation and severe disorders, that needed a 12-month program with a small student to teacher ratio (trans. 29; see also Department Ex. 1 at p. 5).

The IEP notes that “teacher estimates” of ‟s instructional levels: reading decoding, grade ; reading comprehension, ; and math computation, (Department Ex. 1 at p. 3). The CSE created academic management needs for (trans. 31). Based upon reports from the School, Dr. concluded that needed supports, modeling, prompting, manipulatives, repetition and time to process information (trans. 33). Dr. stated that also needed tools to arouse his system and increase his body awareness “to get him to focus better” (trans. 30, 33). ‟s / management needs included access to materials, redirection, supports, and a “bouncy seat” to support upright posture and “alert ” (Department Ex. 1 at p. 4).

The parent brought a therapy prescription to the CSE. As a result, Dr. “wanted to make sure that” had a therapy evaluation (trans. 35).

The IEP notes ‟s and states “no in his environment” and “ as needed.” The CSE included a recommendation for a school nurse to be “on site” to monitor his and (trans. 36; Department Ex. 1 at p. 1).

Dr. described the goals set forth on the IEP (trans. 39-44). The IEP includes goals in the areas of reading decoding and comprehension, math computation and concepts, therapy, gross motor skills, integration, skills, motor and skills, and play skills (Department Ex. 1 at pp. 7-14). Dr. opined that the IEP addressed ‟s educational needs (trans. 45).

At the CSE meeting, ‟s teacher, Spencer Leeds, stated that had been making progress at the School in a class with an 8:1:4 ratio (trans. 49). According to Dr. , the CSE did not consider recommending a class with a ratio smaller than because they “felt that [ ‟s] needs could be met in a ” (trans. 52).

By a notice dated June 14, the Department informed the parent that was placed at at (Department Ex. 5). The parent visited the school on July

14 (Department Ex. 2). By letter dated July 21, the parent, through counsel, informed the CSE that this placement was inappropriate for because it was not a “ / free environment,” would not be able to accommodate his needs, and employed the TEACCH methodology, which has been ineffective with (Department Ex. 6).

Janine , the assistant principal of at , testified that the school included students in pre-through eighth grade and classes for students with , classes for students with disturbance and classes for multiply handicapped students (trans. 71). Parent training and is provided at the school through workshops organized by a parent coordinator (trans. 72-73). Ms. stated that she had reviewed documents concerning , such as his IEP, but had not met him (trans. 76-77).

Had attended as of July 2010, he would have been placed in ‟s class (trans. 79, 121-123). Mr. is a certified and general education teacher and certified in ABA (trans. 80, 124). There were two paraprofessionals assigned to this class (trans. 80). One paraprofessional was the “classroom” paraprofessional, and the other was assigned to a particular student as a one-to-one health paraprofessional (trans. 81, 125). There were five students in the class in July. The students ranged in age from to years and were classified with (trans. 83). Their reading levels ranged from grade . to “about” grade . ; their math levels ranged from grade . to grade (trans. 83-84). Mr. uses ABA and TEACCH methodologies in the classroom (trans. 124).

The school employs a “school-wide modification program and positive support program” which includes an “ literacy component” using both words and picture exchange symbols and a point system (trans. 87).

Ms. stated that school personnel would address ‟s deficits by implementing the management needs set forth on the IEP; these “needs” “are pretty much what is built into all our classrooms‟ . . . daily routines and rituals” and “would be reinforced during related services sessions” (trans. 89). The school has materials and equipment as well as a integration program (trans. 90). ‟s academic needs would be addressed in Mr. ‟s classroom through s, cues, prompting, modeling and manipulatives and activities (trans. 91). ‟s and needs would be addressed in Mr. ‟s classroom through the schoolwide literacy initiative, redirection, supports and modeling (trans. 92). ‟s IEP goals in reading and math would be addressed in the classroom through wholeclass instruction, small group instruction (with students functionally grouped), and oneto-one instruction (trans. 93). Math is taught with the Everyday Math program modified to each student‟s ability level (trans. 94). and are addressed in Mr. ‟s classroom through role-playing (trans. 95).

The school provides therapy, therapy, , and therapy, vision and hearing therapy, mobility services and nursing services (trans. 97). Ms. stated that ‟s related services might not have been provided “in their entirety” at the school; some of the sessions might have been provided via a RSA (trans. 100).

Ms. stated that the parent visited the school and met with the parent coordinator (trans. 102).

Children enrolled in the school experience a variety of , including to (trans. 106). The school follows a protocol to address these —parents communicate with school nurses with respect to medication, are posted outside classrooms and in the cafeteria to ensure that the environment is free of that , teachers create bracelets and PECs symbols, and the school dietician is informed of the (trans. 106-107). There are two registered nurses at the school, and they address issues and administer medication (trans. 110-111). The nurses and 20 additional adults at the school are trained to administer s. This training is renewed annually (trans. 111-112 146). Families are told not to send in snacks with items to which classmates‟ are (trans. 109). Furthermore, some of the students experience “airborne food ” (trans. 146).

With respect to a , Ms. reported that was not served to the children in the cafeteria (trans. 108, 139-140). The school cafeteria follows the Department‟s “ needs” menu, which is then modified by the school‟s food services personnel, including the dietician, and the administration (trans. 132). Students with “serious food ” may eat in a separate location, such as a classroom or the nurses‟ office (trans. 135-137). Any lunches brought from home by students are checked (trans. 138-139).

The school includes a school “work site,” called ‟s Café, on the third floor of the building where students learn culinary skills and food is prepared and sold to staff members (trans. 143-145). Tuna sandwiches might be sold at this location (trans. 145). Mr. ‟s classroom is on the floor (trans. 141). Ms. stated that if were to attend the school, staff would have a discussion and tuna would be removed from that menu (trans. 145-146).

Ms. opined that ‟s educational and -related needs would have been met at (trans. 113).

, a registered nurse employed by the Department at at , testified that her duties included conducting intake of students, administering medication and first aid, “doing cafeteria duty” and calling EMS (trans. 169). Ms. had not met or the parent.

There are two nurses at the school. Breakfast and lunch are supervised each day by one of the nurses (trans. 178). Ms. explained how she would prevent a student from experiencing anaphylactic shock (which includes a drop in blood pressure and loss of consciousness) in response to exposure to an (trans. 170, 176). When the child enrolls in the school, Ms. meets with the parent and discusses the child‟s medical history, including . Ms. provides the parents with forms to be completed by the child‟s doctor. When Ms. receives the forms, she meets with the parents to “work out a plan of care” (trans. 171, 189). If a student does experience , then Ms. or a trained staff member administers an (trans. 171-172, 176-177). Students‟ are posted in their classrooms and the cafeteria. Ms. trains school staff on the use of s (trans. 179, 189). Ms. routinely carries an with her to the cafeteria (trans. 209).

On a monthly basis, Ms. reviews the cafeteria menus for items to which children in the school are (trans. 190). She informs the child‟s teacher not to permit the child to be present in the cafeteria at the time the item is being served (trans. 191). is not served in the cafeteria and has not been served “since last year” (trans. 198-199). Children are permitted to bring lunches from home (trans. 200).

There is a “work site” on the third floor of the school (trans. 212). Students do not eat food prepared at that site (trans. 211).

Ms. explained that when a parent tours the school, the parent coordinator brings the parent to the nurses‟ office and introduces the parent to one of the nurses (trans. 206-207). At this time, the parent and the nurse would discuss the and the nurse would provide the parent with the medical forms (trans. 208). The Parent‟s Case is treated at the developmental clinic at Hospital. His doctor reported that has been diagnosed with , mild intellectual disability and severe impairment and continues to experience “significant issues related to his ,” and a severe (Parent‟s Exs. I, J, X). According to the , ‟s causes “ , the most severe form of reaction” and can have that reaction “to consumption and even aerosolized exposure to as it is being prepared.” As a result, the advised that “should be in a complete free environment” (Parent‟s Ex. X at p. 3).

, a certified and general education teacher, testified that she was a head teacher at the School (trans. 221). The class also includes four assistant teachers and nine students, including . has been in her class since July 2010 (trans. 226). Ms. stated that needed the “increased adult support” in the classroom in order to address his “tendency to fall apart” (trans. 226). The adults in the classroom answer his questions “about what‟s going on in his environment” and assist him in understanding and processing what is going on around him, both and academically (trans. 226-227).

Ms. described ‟s schedule. He begins his day with exercise supervised by the therapist. This exercise is a “way to regulate” himself “at the beginning of the school day” (trans. 227). Then there is group work or a therapy, then snack and hygiene-related activities of daily living, followed by morning meeting (trans. 227). The group then moves to math instruction, and then therapy, followed by recess. Reading instruction is in the afternoon (both group and individual instruction), and the day ends with writing (both handwriting and composition) and then snack and packing up to go home (trans. 228-229). Science and studies also included in the school day, and receives therapy, therapy, therapy and art therapy (trans. 229).

Since July 2010, has improved in the areas of and skills, processing time and flexibility (as in reducing his levels of rigidity in activities) (trans. 230-232). In addition, he is able to sustain his regulation and not “fall apart” when things do not happen as he anticipated (trans. 232). Ms. opined that “really needs that one-one-one support in order to make these improvements” (trans. 234).

In reading, is on sight words and is reading at approximately an early grade level. His sight word reading has improved “tremendously” since July (trans. 235). In addition, he s the word and is able to what he is reading, and his reading comprehension is now also at a grade level (trans. 237238). He needed one-to-one support to make this improvement, but with this improvement the support has been decreasing (trans. 236, 238). has also made improvements in math and is now able to add single and double digit numbers with and without regrouping and to subtract single and double digit numbers without regrouping (trans. 240). He can also solve simple word problems “which goes hand-in-hand with his improvement in reading comprehension” (trans. 240). has also learned to count money and tell time. He “still needs one-on-one support” during math instruction (trans. 241).

has also made improvements in science and studies. He has learned to make predictions based upon prior knowledge (trans. 245-246).

Ms. opined that an ABA methodology or a “rewards” based methodology would not be appropriate for because he would “be more caught up on how” the reward and the learning activity were related rather than on learning the skill (trans. 246). is motivated to learn due to his “really strong relationship” with his teachers and his peers. He is able to model appropriate s and learning skills be observing his peers (trans. 246-247). She also opined that the TEACCH methodology would be inappropriate for because its “very structured routines” would prevent him from working on the “flexibility” that he needs to make progress (trans. 247).

The staff at address ‟s by making the entire floor where his classroom is located free (trans. 247-248). Students each lunch in the classroom and are not allowed to bring to school (trans. 248). is not served at the School (trans. 248, 279). Ms. has been trained in the use of an (trans. 249). An is kept in the classroom (trans. 249).

The students in the class range from pre- to third grade levels in reading and math (trans. 272). None of the students have issues (trans. 272).

, the program director of the School, testified that she was a licensed clinical worker and a certified school and school district administrator (trans. 341).^[1] She described the School as a school for “children with neurodevelopmental delays in relating and communicating,” including children “on the autistic spectrum” (trans. 344). Staff implements the Developmental Individual Differences Relationship Model (“DIR”) “which is a developmental way of looking at the students and coming up with an individualized program that looks at their developmental level, their processing and their ability to have relationships” (trans. 344). In each class, there is one teacher or teacher assistant to each two students (trans. 346).

enrolled in in April 2007 (trans. 354). He is a “ communicator” but needs adult support to use effectively. He has “ integration difficulties” and is “under-reactive,” with low muscle tone, low endurance and motor planning difficulties (trans. 355-356).

staff addresses ‟s by designating the floor where his classroom is located and other common areas as “ -free” zones and designating a microwave oven solely for his use (trans. 356). The school nurse ensures that these procedures are followed and keeps an available in her office and in ‟s classroom (trans. 357). The nurse has trained the staff in use of the (trans. 358).

receives therapy, therapy, and therapy and art therapy at (trans. 361). The therapist has trained the classroom staff how to address his needs throughout the school day “so he gets input on a regular basis to be able to keep him regulated and engaged and attending” (trans. 362). The therapist has also worked with classroom staff and has trained them to help use effectively (trans. 362-363). Ms. opined that the program at was appropriate for (trans. 363). She noted that ABA and TEACCH programs would not be appropriate for because ABA would “reinforce” his “rigidity” and TEACCH would require him to learn skills independently. He requires “a lot of adult support” and would not be able to learn through TEACCH (trans. 366).

The parent testified that her household included herself and . The household‟s only income was ‟s SSI benefits (trans. 287). has made tremendous improvement in his ability to communicate (trans. 288). has been diagnosed with chronic , severe , a throat condition and eczema (trans. 289). He was hospitalized on one occasion when he was years of age and was exposed to at an outdoor out (trans. 292). is currently treated by an , who prescribed an (trans. 293). The parent keeps their apartment free and carries an when she leaves home (trans. 293-294). The extended family cooperates with her efforts to prevent ‟s exposure to (trans. 294). was recently tested to confirm his (trans. 295; Parent‟s Ex. Q).

The parent attended the 2010 CSE meeting for (trans. 297). ‟s teacher participated by telephone (trans. 298). The parent testified that she believed the CSE‟s recommendation of “no in [ ‟s] environment” was not sufficient and informed the CSE of her opinion (trans. 301). She and the teacher also informed the CSE that needed more support than a class could provide in order for him “to stay regulated” (trans. 303). The parent received the notice of placement on June 16 (trans. 303-304). On June 17, she called the school and was informed that the first available appointment was not until July 13. The parent arranged to visit on July 14. On June 23, the parent informed the CSE in writing that she had contacted to arrange a visit for July 14 (Parent‟s Ex. B; trans. 307). School personnel informed the parent that was served at the school, and a menu posted at the third floor cafeteria showed that was served on the date of the visit. During the visit, the parent met with a school nurse, who informed her that “she could not address the airborne ” and “did not indicate how any plan or preventive measure would be taken for ” (trans. 312). As a result, she rejected the proposed placement (trans. 305, 310, 312-313).

The parent signed a School enrollment contract for the 2010-2011 school year on April 30, 2010 (Parent‟s Ex. Q). Tuition at the school was $92,100.00. The parent would be released from her obligation to pay this amount in the event that she accepted a placement from the Department. The parent paid a deposit of $500.00 on April 30 and agreed to make a payment of $1,000.00 on March 15, 2011. This payment has not been made (trans. 321-323). The parent explained that ‟s , reading and math skills have improved at the School and that has not experienced any “attacks” while attending the School (trans. 318).

, a licensed worker employed by the School, testified that she works with families, provides , supports school staff, attends CSE meetings and visits schools with parents as needed. She was assigned to work with ‟s class during the 2009-2010 school year (trans. 390-391).

Ms. visited the proposed placement with the parent on July 14 (trans. 392; Parent‟s Ex. Z). They were given a tour by the parent coordinator and met with a school nurse. The parent coordinator informed them that the student cafeteria was not free and that could eat in his classroom on days that was served in the cafeteria (trans. 393-394). On the day of the visit, was being prepared by school students and served in a cafeteria. The school nurse informed them that she could not control “the smell trigger when the food was being ed” even though “he would be isolated for lunch during the days when is served” (trans. 395).

Findings of Fact and Decision

A board of education may be required to pay for educational services obtained for a child by the child's 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. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents‟ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

I. The Appropriateness of the School District‟s Program The central purposes of the IDEA are to ensure: (1) that all students with disabilities have available to them a free appropriate public education that emphasizes education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) that the rights of all students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A) & (B); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes education and related services designed to meet the student‟s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements 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). While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06-121. If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate educational program only if the procedural inadequacy: (1) impeded the student‟s right to a free appropriate public education; (2) “significantly impeded the parents‟ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. The School District bears the burden of demonstrating the appropriateness of the program recommended by its CSE.

A recommended educational program must be reasonably calculated to allow the student to receive an educational benefit and be the least restrictive environment for the student. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is “‟likely to produce progress, not regression” and that affords the child the opportunity for more than “mere „trivial advancement‟”—in short, likely to provide some “‟meaningful‟” benefit. Application of a Child with a Disability, Appeal No. 06-121, quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997). A school district thus satisfies this standard “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” 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.” Walczak v. Florida Union Free School District, 142 F.3d 119, 130 (2d Cir. 1998); see also 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.” Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]).

An appropriate educational program “begins with an IEP which accurately reflects the results of evaluations to identify the student‟s needs, establishes annual goals related to those needs, and provides for the use of appropriate education services.” Application of a Child with a Disability, Appeal No. 07-010. The IEP clearly describes ‟s educational needs, sets forth goals for and describes a educational program to address those needs and those goals. With respect to ‟s , the Department correctly argues that the IEP adequately identified the and noted that should not be present in his educational environment and that an be available (DOE Closing Brief at pp. 5-6 [IHO Ex. I]). The IEP also describes ‟s needs and prescribes the use of tools to assist him in maintaining focus. The IEP explains the educational supports needs: supports, modeling, prompting, manipulatives, repetition and time to process information.

The parent argues that ‟s needs would not have been met in a program because it would not have provided him with sufficient adult support (Parent‟s Closing Brief at pp. 10-11 [IHO Ex. II]). ‟s needs, as described by his teachers, are not severe. While he has benefited from a lower student:teacher ratio at , the evidence does not support at finding that requires a lower student:teacher ratio in order to learn.

The witnesses from described credibly and in detail about how they would address ‟s needs as set forth on his IEP. They explained that teachers in the program use materials and implement the types of management strategies set forth on ‟s IEP. The teachers use redirection, s, cues, prompting modeling and manipulatives. Students are functionally grouped and receive one-to-one instruction when necessary. With respect to addressing ‟s , both Ms. and Ms. explained credibly and in detail how they would prevent ‟s exposure to and treat an reaction to an exposure, should such exposure occur.

The evidence presented at the hearing establishes that the School District offered a free appropriate public education for the 2010-2011 school year. As a result, the School District prevails with respect to the first prong of the Burlington/Carter analysis.

II. The Appropriateness of the School

The parents bear the burden of proof concerning the appropriateness of the School program for . See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2nd Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parents must show that the educational services provided at addressed 's identified education needs. See G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents‟ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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 service necessary to maximize their child‟s potential. They need only demonstrate that the placement provides “educational instruction 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.”

Frank G., 459 F. 3d at 364.

Applying the Frank G. “totality of the circumstances” standard, the evidence demonstrates that the program at was appropriate for . provides with an individualized program that addresses his key educational needs: regulation, academics and -related. Ms. and Ms. described in detail the education methods, techniques, equipment and materials school staff use with to address each of these areas of need. ‟s academic needs are also addressed at . He has improved his sight word reading and reading comprehension, addition and subtraction skills and practical math skills such as counting money. also provides with related services.

has made progress at during this school year. He has made academic gains in the areas of math and reading sight words and comprehension. He has improved his and skills, reduced his rigidity and increased his ability to remain regulated for longer periods of time. staff provided with oneto-one support to make these improvements.

The Department‟s argument that ‟s would not be appropriately and safely addressed at is unsupported (DOE Closing Brief at pp. 16-17 [IHO Ex. I]). The School witnesses testified with respect to the steps they took to prevent ‟s exposure to and to treat such exposure should it occur. The Department‟s argument that reimbursement must be denied because is a for-profit entity (DOE Closing Brief at pp. 13-14 [IHO Ex. I]) is also rejected.

As a result, the parent prevails on the Burlington/Carter criterion with respect to the appropriateness of the program.

III. Equitable Considerations

With respect to the third Burlington criterion, whether equitable considerations support the parent‟s claims, the evidence establishes that the parent cooperated with the CSE by, over the years, attending CSE meetings as well as visiting the proposed placement and then communicating her concerns in writing to the CSE. The main question to be addressed in considering the equities in this proceeding is the appropriateness of prospective payment to the school (as opposed to reimbursement to the parent) by the school district. The parent testified credibly that the sole means of support for herself and is ‟s SSI benefits. The parent is therefore unable to pay the School tuition up front and then seek reimbursement from the Department. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment because: (1) such payment is permitted by Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); and (2) it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled children whose parents happen to have the financial wherewithal to “front” the private school tuition and subsequently seek repayment from the school district. Equitable considerations are in the favor of awarding relief to the parent. However, since the Department prevailed with respect to the appropriateness of the program it offered to , the parent‟s request for payment must be denied.

Therefore, for all the above reasons, it is hereby ordered that:

The parent‟s request for payment of ‟s School tuition for the 2010-2011 is denied Dated: July 12, 2011

___________________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

JB:dl

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 ON MAY 16, 2011

PARENT

A Omitted B Letter to Department Requesting Extension to Respond to Final Notice of

Recommendation, dated 6/23/10, 1 page C Notice of Unilateral Placement, dated 6/22/10, 2 pages D Final Letter of Parent Rejecting Placement, dated 7/21/10, 4 pages E Impartial Hearing Request, dated 2/23/11, 5 pages F Notes from IEP Meeting, dated 5/26/10, 2 pages H Amended First Page of IEP, dated 10/14/10, 1 page I Letter from Pediatrician, dated 4/22/10, 1 page J Medical Accommodation Form, dated 4/22/10, 1 page K Prescriptions, dated 4/22/10, 1 page L Release Form, dated 5/26/10, 1 page M Therapy Assessment, dated 6/7/09, 5 pages N Letter for Therapy Assessment, dated 6/8/10, 4 pages O Classroom Observation, dated 12/16/09, 2 pages P Classroom Observation, dated 11/2/10, 2 pages Q School Contract, dated 6/22/10, 5 pages R School Progress Report, dated 12/2009, 15 pages S School Progress Report, dated 5/2010, 13 pages T School Progress Report, dated 12/2010, 16 pages U Therapy Evaluation Letter, dated 6/30/10, 2 pages V School Schedule for 2010-2011, 1 page W Therapy Assessment Affirmation, dated 11/14/10, 7 pages X Correspondence for Children Hospital, dated 1/2011, 4 pages Y District 75 Referral Form, dated 2010, 1 page

DEPARTMENT OF EDUCATION

1 IEP, dated 5/26/10, 20 pages 2 Visitor's Log Sheet, dated 7/14/10, 1 page 3 Waiver of IEP Meeting, dated 7/22/10, 1 page 4 School IPR, dated 5/2010, 8 pages 5 Final Notice of Recommendation, dated 6/14/10, 1 page 6 School Placement Letter, dated 7/21/10, 3 pages 7 Due Process Response, dated 2/28/11, 3 pages

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 6, 2011

PARENT

None

DEPARTMENT OF EDUCATION

8 Guidelines for Provision of Health Services and/or 504 Accommodations, 9 pages

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 13, 2011

PARENT

Z Handwritten Notes taken by . visit with parent, 7/14/2010, 3 pages

DEPARTMENT OF EDUCATION

9 Letter from School, Undated, 1 page 10 Subpoena to School, dated 04/19/2011, 1 page

IMPARTIAL HEARING OFFICER

I DOE Closing Brief, dated 7/8/11, 20 pages II Parent‟s Closing Brief, dated 7/8/11, 22 pages

Footnotes

[1] The Department of Education cross-examined both Ms. and Ms. with respect to the subpoena served upon the School. The hearing officer advised the Department that she did not have the authority to compel compliance with the subpoena and informed the Department that there were other avenues open to the Department to compel such compliance (trans. 370-371).