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: May 17, 2011

June 10, 2011

June 28, 2011

July 13, 2011 Actual Record Close Date: August 4, 2011 Hearing Officer: Lorraine Ferrigno, Esq.

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

Attorney — Student

Mother — Student

Education Consultant — Student

Attorney — DOE

(via telephone) — DOE

Legal Associate — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 10, 2011

Attorney — Student

Mother — Student

Education Consultant — Student

Attorney — DOE

Principal (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 28, 2011

Attorney — Student

Educational Consultant — Student

Parents

Teacher (via telephone) — Student

(via telephone) — Student

Attorney — DOE

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

Attorney — Student

Educational Consultant — Student

Parents

Director (via telephone) — Student

at (via telephone) — Student

— Student

Attorney — DOE

— DOE

DECISION AND FINDINGS OF FACT

INTRODUCTION

This hearing was requested on March 17, 2011, by , and Mr. of , Esq. and , LLP, attorney for Parent of student . The hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act (IDEIA) §§ 1415(f) & 1412 (a) (10)(C), to obtain reimbursement for the placement of the student by Parent in a nonapproved private school during the 2010-2011 school year. I was appointed to hear the matter by the Department of Education of the City of New York [Hereinafter referred to as “the District”] on March 21, 2011, and due to the availability of the witnesses, a hearing was scheduled for May 17, 2011.

The hearing commenced on May 17, 2011, at 1:30 in the p.m. pursuant to the IDEIA 20 U.S.C. §1415 (f). The hearing was scheduled to be continued on June 3, 2011, however an adjournment, requested by the District, was granted. The hearing continued on June 10, 2011 at 1:00 p.m., June 28, 2011 at 10:10 in the a.m., and a final hearing date was held on July 13, 2011, at 9:30 in the a.m. The District conceded pendency and an Order of Pendency was issued on July 7, 2011. Appended to the record are lists of the persons in attendance at the hearing and the Documents received into evidence.

BACKGROUND

Student is ) years old and is classified with . (Parent‟s Exhibit D [Hereinafter referred to as .‟s Ex. D]). There is no dispute regarding the classification of Student. Parent obtained an Independent Evaluation from the in March of 2008 (See ‟s Ex. “V”). Student was unilaterally placed by Parent in the [Hereinafter referred to as ”] in the 2008-2009 school year, a non-approved private school, and Student had attended since that time. A CSE was convened on May 21, 2010, for the purpose of formulating an Individual Education Plan (IEP) for the 2010-2011 school year. An IEP was created (P.‟s Ex. D) and a Final Notice of Recommended, date June 18, 2010, was sent to Parent. (Dist. Ex. D-9). The classification of Student was , with a program recommendation of Special Class in a specialized school , . Parent visited the public school in July of 2010. In a letter, dated January 28, 2011, Parent notified District that the placement offered was unacceptable and rejected said placement and informed District that Student would continue at at public expense. (Dist. Ex. D10). Parent requested this hearing on March 17, 2011.(P.‟s Ex. I) seeking an order:

1) That the CSE failed to offer student FAPE for the 2010-2011 school year;

2) Pendency placement at ;

3) Tuition of $107,000.00; and

4) Reimbursement for any and all monies spent, including, but not limited to evaluation and assessment fees, application fees, a deposit of $1,000, and any other documented costs associated with the 2010-2011 school year.

HEARING TESTIMONY

Appearing for Student were: , Esq. attorney for Parent, Consultant for Parent, , Parent, Dr. , Director at (via telephone) and (via telephone). Appearing for the District were Esq, , legal assistant , School Psychologist (via telephone), and (via telephone).

Mr. was sworn in, affirmed he was alone in a room, and testified via telephone. (Tr. pp. 67-68 at 3-25, 1-12). Mr. testified that he is a assigned to the committee on Special Education, employed by the District for 25 years. (Tr. pp. 68-69 at 22-25, 1-3). He holds a in and a New York State certification in school psychology. (Tr. p. 69 at 18-25). The witness testified that some of his responsibilities of his position included conducting evaluations of children with suspected disabilities or of children who have been classified with a disability, observations of those children and conducting IEP meetings. (Tr. p. 69 at 7-15). Mr. testified that he participated in the May 21, 2010, IEP meeting for Student, but did not have an independent recollection of the particulars of that meeting. (Tr. p. 70 at 6-14). Mr. also testified that his testimony regarding what transpired at IEP meetings was partly what normally “goes on” in CSE meetings that he had had with . (Tr. p. 83 at 6-16). Mr. stated that he was familiar with , and that he had held approximately 20-25 reviews or IEP meetings involving students from . (Tr. p. 71 at 1-13). The witness testified that present at the IEP meeting of May 21, 2010, were himself as the District Representative and also as the school psychologist, Parent, a and a special education teacher. Attending by telephone were , a from Ms. , Student‟s teacher, , the and Dr. , the and . (Tr. pp. 72,73,74). The witness

testified that he could clearly recognize from the documents in front of him that he had relied on the progress reports from December and April and the pervious IEP (Tr. p. 74 at 12-24).The IEP was not prepared in advance of the CSE meeting, but the CSE did receive drafts of some of the goals from prior to the meeting. (Tr. p. 76 at 4-9).

The witness explained how the IEP document is produced with on speaker phone and the District present in a room together. (Tr. pp. 75-79). Ms. testified to Student‟s Academic needs as represented at (IEP) as ways of approaching Student in the classroom setting that might enhance or facilitate learning, using documents and input from . (Tr. pp. 84 at 23-25, 85 at 1-2). Goals for Student in the area of behavior, play skills, , skills, were all faxed to the from on May 21, 2010 (see Dist. Ex D-3- D-9 and Tr. pp. 89-92). Mr. admitted that he made a , one that he had also made in the past on page 14 if the IEP (Dist. Ex. 3-14). The witness testified that he wrote “Profile needs and delays do warrant the level of program provides, and that what he meant to write, and what he believes is clearly evident in the discussion is that „profile needs and delays do not warrant the program‟. (Tr. p. 98 at 14-23). Mr. explained that a program has and one teacher and is structured for children with in basic involving complete attention in terms of . Because that program does not have as a heavy emphasis on , and that Mr. felt would be appropriate for Student, he ruled out this type of program. (Tr. p. 99 at 1-19).

Mr. testified that he felt a staffing ratio would not be appropriate for Student because a , , could not be addressed with that particular ratio. (Tr. p. 101 at 1-8). The witness testified that he believed that the recommended on the IEP, with the addition of the related services recommended was an appropriate program. (Tr. p. 101 at 9-19). The witness also testified that was not recommended for Student because Student needed to build very skills before he could benefit from Increasing would give to , and the addition of a paraprofessional would address his in a more direct manner than the more . (Tr. p. 102 at 14-25). The witness testified that he knew that Student was not receiving counseling at . (Tr. p. 103 at 16-18).

Testimony

was sworn in, affirmed she was alone in a room, and testified via telephone. (Tr. pp.126 at 12-24). Ms. testified that she is the Principal of and that she has a B.S. in Elementary Education and a Master‟s Degree in Special Education and a Master‟s Degree in school leadership and administration. She holds State and City licenses in special education, and a license in School Administration Supervision. (Tr. p. 128 at 4-16).

Principal testified that she had read Student‟s IEP and that in her opinion, had Student attended for the 2010 school year his IEP mandates would have been met. (Tr. p. 139 at 11-15). Further, that if Student had appeared at the site in July of 2010, there would have been a seat available for him in a class. (Tr. p.141 at 2-6). Ms. testified that the teaching methodology of the school begins with assessments tools, to gain a better idea of grouping students as as possible. (Tr. p. 141 at 16-25). We assess them [students]in various areas and we create programs for them, and try to parallel general education as much as we can, but the overwhelming majority of our students need work adapted. We have various programs to choose from. “Based on assessments, we try to teach to the student‟s strengths, and we match the program to how the student learns. We do a lot of very engaging, enriching activities that are of high interest to children”. (Tr. p. 142 at 2-24). The witness testified that the as stated on page 3 of the IEP (Dist. Ex. p.3), could certainly be address in the classroom: , along with . is certainly used, as many , and a is done for the student. are also used a lot, as a students what we want them to do by providing it to them in a or helping students to complete a graphic organizer. (Tr. p. 144-145). The witness proceeded to testify as to the each of the goals on the IEP on Dist. Ex. 3 pp. 6,7,8,9,10,11 and 12. The witness testified at length, how her school, , could address each of the stated goals in the IEP.(Tr. pp. 145-166). Including a very detailed description on how the task of . (the testimony is not expanded here) The witness testified, that insofar as related services, she has some degree of control as Principal, and that this year [2010-2011] all the students were serviced for (Tr. p. 167 at 20-21). Ms. testified that the provision of related services on site can be either push in or pull out model. It is a combination of what the feels in conjunction with the classroom teacher and the parent. “We value the parent input very, very much. We have no hard and fast model, we do a combination of push in and pull out”. (Tr. p. 168 at 7-23).

The witness testified that a would have been provided for Student. (Tr. p. 168 at 24-25, 169 at 1-6). She explained the “ as an international program where a person without , and they do fun activities like the electronic Wii game, dancing with Wii, arts and crafts and attend assemblies. (Tr. p. 170 at 4-15). Principal never met Parent or Student, nor was she at the CSE meeting when the IEP was developed (Tr. p. 8-22). Ms. testified that she was not familiar with , nor had she ever heard of a or classroom setting, and that her school did not provide that. (Tr. pp. 176 at 24-24, 177 at 1-5, 17-25, 178 at 1-4). The witness testified that at her school Students would get for . (Tr. p. 181 at 6-22). Ms. testified that the [That student would have attended] was closed for construction during the summer and that the were moved into the school for the summer (Tr. p. 187 at 1-4). The Parent could have had the opportunity of seeing the classrooms, in the classes that were ongoing (Tr. p. 191 at 3-7). Ms. agreed that it was important for a parent to know the teaching methodologies utilized at a school, along with a class profile, and the facilities themselves in order to make a decision whether a school would be appropriate. (Tr. p. 193 at 3-10). However, the witness did not agree that lack of access to that information would mean that the school would not be appropriate. (Tr. p. 193 at 11-21). Testimony of Parent, Parent was duly sworn in and testified at the hearing held on June 28, 2011. Ms. testified that Student was classified with in May of 2005 (Tr. p. 223 at 16-22). Student attended the for two years, beginning in 2006 with an teacher ratio. ( Tr. p. 224 1-25). Parent testified that Student behavior was “ ” at the . Further, that he had or skills. (Tr. p. 225 at 8-13). Parent testified that she had Student evaluated by the in the summer of 2008 because she wanted to know how Student would and it was recommended that he be in a program. (Tr. p.225 at 19-25, 256 at 1-4). Parent stated that in Student,s first year of enrollment at (2008-2009 school year) that student improved , , , , all improved. Parent testified that Student‟s behavior also improved to the point where Parent could take him out to restaurants, that he began , and with and friends. (Tr. pp. 230-231 at 22-25, 1-9). Student is on a ) month program and Parent testified that she saw improvement in the 2009-2010 school year with a ratio . (Tr. p. 232 at 6-25). Parent testified that she was present at the CSE meeting resulting in the May 21, 2010 IEP, and that her signature appears on page 2. (See P‟s Ex. D at p. 2). Parent testified that she had never met Mr. before. She further testified that she knew what a parent member was and that no parent member had been present at prior IEP meetings, and that no Parent member was present at the May 21, 2010 meeting. The witness testified that Mr. did not ask her permission to continue the meeting with no parent member present. (Tr. p. 237-240). Parent testified that prior to the May 21, 2010, meeting she met with Student‟s teacher , his teacher and , these professionals informed Parent that the District might recommend a program. The witness further testified that she told the staff that she felt that her son could not function in a program, and that the staff agreed and recommended a program. (Tr. pp. 241-242). The witness testified that Mr. did not directly inquire of Parent what placement she would like, but rather, he told the staff that he wanted a program and that she had no input in the preparation of the May 21, 2010 IEP (Tr. p. 243 at 4-21). The witness testified that she received a placement (see Dist. Ex 9) the end of June, and called the placement school to make an appointment with the assistant principal to visit the school.(Tr. p. 245 at 2-20).

Parent testified that when she visited the school, she was not given any documents regarding the school and that she did not meet with the assistant principal. (Tr. p. 246 at 6-17). Parent testified that she wanted to meet with Student‟s teacher, perhaps see other kids in Student‟s class. Further, Parent wanted to learn what , and and the school used. (Tr. p.247 at 1-9). Parent stated that she felt the children were only being . (Tr. p. 247 at 19-20). Because there was at the school, Parent was unable to see the classroom Student might be assigned to. Further, the Unit Coordinator that escorted Parent did not know who would be Student‟s teacher, nor did she know if the teaching methodology was or , nor did she know what methods would be used for Student. (Tr. p. 248-249). Parent stated she requested a class profile and was not provided with one (Tr. p.251 at 1-8). Parent testified that after visiting the school she felt the placement was not appropriate for Student because the school could not tell her the classroom, or teacher, Student would have, they did not provide a class profile, she did not know if Student would get services or need outside services, and that when she entered one of the two classrooms she visited, , and that Parent considered this . (Tr. p. 252 at 7-19). Parent testified that she did not observe at placement school. (Tr. p. 254 13-15).

After visiting the school in July of 2010, Parent decided she did not want her son attending the public placement school. (Tr. p. 256 at 4-10). Parent wrote a letter to the district, rejecting the placement school, dated January 28, 2011. The witness stated that the reason for the delay in notifying the District was and . (Tr. p. 257 at 7-21). Parent also testified that she had not been , and she continued to work full time at the . (Tr. p. 269 at 2- 25, 270 at 1-6 ). Parent testified that she signed a contract with for the 2010-2011 school year on July 10, 2010. (Tr. p. 271 at 3-4). The witness also testified that, at the time she signed the contract, she had conversations with employees about how much the tuition was and that she intended to seek funding from the District for because they did not find the appropriate placement for Student. (Tr. pp. 271-272). Testimony of

The witness was duly sworn in, stated that she was alone in a room and testified via telephone. Ms. testified that she is employed by as the and also a teaching therapist, and has worked for for almost . She has a and , and holds a national license as well as a New York license to practice and treat. (Tr. p. 280 at 21-25). She testified that she knew Student and that he was classified with . Ms. delivered for Student from September of 2008, through September of 2010, when Student started with a new . (Tr. p. 293 at 6-10). Ms. was directly involved in the preparation of the May 21, 2010, IEP participated via telephone, and wrote the actual occupational therapy goals that were contained in the IEP. (Tr. p. 296 at 5-23). testified that she was aware that Student was being recommended for a program and that she was part of the conversation at the CSE meeting where the team‟s stance that that specific ratio ], even with a , would not be appropriate for Student. (Tr. p. 306 at 9-12). The witness testified that Student‟s would affect other students in a setting because Student had specific towards others and . Student , and , and that would be a distraction to any other

student, given that Student‟s level of needs in the classroom, it would be disruptive to their learning. (Tr. p. 307 at 4-17). stated that she believes that Student specifically needs a .

The witness testified that Student continues to , including a in - and his , but there are supports in place should any (Tr. pp. 311 at 11-14, 312 at 21-23). testified that she reviewed the testimony of Principal (Tr. p. 314 at 13-20) and that she did not agree that a setting, therapeutically speaking, would be appropriate for Student at this point. (Tr. p. 315 at 3-7). has no General Education students attending. (Tr. p. 237 at 19-22). Testimony of

The witness was duly sworn in, stated that she was alone in a room and testified via telephone. Ms. testified that she was a employed by since September of 2010. (Tr. p. 335 at 14-18). She has a Bachelor‟s degree in business administration and a Master‟s degree in teaching of applied behavior analysis, along with Certification as a Behavior Analyst. (Tr. p. 337 at 16-25).

Ms. testified that Student was placed in her class in September of 2010, and she has met Parent. (Tr. p. 339 at 4-8). The witness testified that she felt Student‟s are significant and and . (Tr. p.340 at 2-23). When asked if she felt a class would be appropriate placement for Student, the witness she believed he would have meeting , and that it would be to manage the that he requires to remain in task. (Tr. p. 341 at 7-22). Student , he is working on (Tr. p. 342 at 6-9).

She testified that at there is a lead teacher and instructors in a class with students, and that Student rotates with a team instructors every other day (Tr. p. 344 at 7-14). Ms. testified as to the contents of Exhibit P, the functional assessment and how it was prepared (Tr. pp. 347-348). The witness was not present when the May 21, 2010, IEP was prepared. (Tr. p.351 at 20-21). However, she did follow the goals that were set forth in that IEP and testified at length as to how the goals were followed and measured (Tr. pp. 353-362).

Testimony of Dr.

The witness was duly sworn in, stated that she was alone in a room and testified via telephone. Dr. is a with a Medical Degree. She is the founder and director of the for , and the Executive Director of the , which is a school for language and communication , and the , a school for (Tr. pp.416-417). Her complete CV is in evidence as Parent‟s “U”.

The witness testified that Student came to be evaluated at the in March 2008, because the Parents were interested in getting a development assessment of Student to find out exactly where his developmental levels were, across many areas (Tr. p. 419 at 5-12). The report of the evaluation is entered into evidence as Parents Exhibit “V”. A second assessment was performed on May 31, and June 7, of 2001. The report of this assessment is entered into evidence as Parent‟s Exhibit “S”.(This Exhibit was not considered in this decision) Dr. testified that, as a global observation, she felt that the results of Student‟s evaluations showed: Student was clearly on the and was not very , that his , in addition to , further, that well. (Tr. pp. 422 at 9-25, 423 at 115). Dr. testified that Student needed a program that had a program, a (Tr. p. 429 at 6-8). Dr. stated that a program is “absolutely not” an acceptable placement and that Student did not do well in a program like this at ages three and four and furthermore, he has a very . Dr. felt that if Student was placed in a it would be and not appropriate for Student. In fact, Dr. testified that she has a school, the and she would not recommend placement for Student in her school. (Tr. pp. 438 at 5-25, 439 at 6-9). Dr. recommends an ) setting. Dr. testified further that Student‟s primary area of deficit is really and that is a result of his very severe communication disorder. (Tr. p. 447 at 17-20). Testimony of

The witness was duly sworn in, stated that she was alone in a room and testified via telephone. Ms. testified that she was a employed by since October 2009, and holds Bachelor‟s degrees in Communication and Spanish and a Master‟s degree in . (Tr. p.457-459). She holds a Board Certification from the Licensing Board and is Board

certified in New Jersey and New York (Tr. p. 459 at 11-19). Student was placed on the witness‟s caseload in October of 2009 and she observed Student and administered services to Student until August of 2010. (Tr. pp. 460 at 3-6, 463 at 8-11). The Witness testified that she prepared Parents Exhibit “C” a progress report for Student (Tr. at p. 464 at 3-9). Ms. testified that was Students strength, although it was still an area of . (Tr. p. 466 at 23-25). The witness testified that she wrote the goals for the IEP at District Exhibit D-10. (Tr. p. 471 at 21-23). The witness then testified at length as to the individual goals, how she arrived at them and what she hoped Student to accomplish. (Tr. pp. 472-480).

Ms. stated that, at the May 21, 2010 meeting, Mr. indicated that he had an appropriate placement for Student, and that she took that to mean that Mr. was not in favor of keeping Student at . (Tr. p. 482 at 9-15). There was then significant testimony, and objections by counsel, as to how many CSE meeting Ms. had participated in with Mr. and as to how many times the witness heard Mr. recommend a . (Tr. pp.483-390). At one point, Ms. stated that she had been involved in a CSE meeting with Mr. where he had recommended a placement (Tr. p. 490 at 5-13), and later testified that from the time she was hired in October of 2009 through the May 21, 2010, she participated in 7-14 CSE meetings for different students with Mr. , and in that time, he did not recommend a or placement for a student. (Tr. p. 493 at 1-15). I find that the testimony involving other unknown, undocumented CSE meetings with unknown students, with unknown needs and skill sets, irrelevant to the matter before us.

Finally, Ms. testified that she considered an integrated learning environment school. (Tr. p. 490 at 17-19).

POSITION OF THE PARTIES

Parent’s Position

1) The CSE failed to provide an appropriate placement for Student for the 2010- 2011 school year constituting a denial of FAPE.

2) The CSE failed to make an appropriate placement because when Parent visited in July of 2010 school personnel were unable to inform her which method would be used, they were unable to explain to Parent in which building the class would be situated, what class he would be in or how his language skills would be developed. The school seemed disorganized, thus making it difficult for Parent to generate accurate and informed information. The program failed to inform Parent if the teaching staff complied with the requirements of being highly qualified as required by . The programs failure to inform Parent of a class profile stifled

Parents ability to evaluate the program, as to the suitable grouping of student for instructional purposes. The failure of the program to provide vital information deprived the Parent of vital and critical information for her to make an informed decision about the appropriateness of the placement. Based on the foregoing the placement recommendation was inappropriate for Student because it failed to adequately inform and explain how the program would address Student‟s needs.

3) In the May 21, 2010 IEP, some of the annual goals are non-specific, incapable of objective measurement, do not address all identified academic and functional deficits of Student. The IEP failed to describe how some if Student‟s progress toward annual goals will be measured, and the IEP process did not conform to state and federal regulatory standards. The substantive and procedural errors in the IEP seriously infringed on Parent‟s ability to monitor and propose corrective action in the development of a new IEP.

4) The May 2010, IEP is the controlling IEP for the 2010-2011 school year, and this IEP failed to have a parent member present as State regulations require. It is well established that failure to have a legally composed IEP development team invalidated the IEP, as a result, the IEP should be nullified, resulting in a failure to offer FAPE.

5) The May 21, 2010, IEP notes on page 8 that a student to is warranted, while the school placement letter for the 2010-2011 school year indicates a ratio.

Given the problems, the elimination of is inappropriate and is not based on any evaluative recommendation.

6) The May 21, 2010, IEP fails to provide any recommendation for promotion and therefore fails to establish the criteria by which Student should be evaluated.

Such failure to establish objective criteria denies Student FAPE.

7) The IEP fails to make clear the CSE‟s position on the student participation in General Education, because on page 7 of the IEP states that developmental delays preclude participation in gen ed, and page 9 of the same IEP indicated “Full

Participation.”

(See Hearing Request Dist. Ex. 1 pp4-7).

District’s Position

The May 21, 2011, IEP team was properly constituted, and made a timely offer of placement that was reasonably calculated to enable Student to receive educational benefits in the least restrictive environment. The IEP mandated that Student receive a significant amount of Related Services, including individual , in addition to providing Student with a to address Student‟s behavioral issues.

The District believes that could have implemented all of the May 21, 2010, IEP‟s goals and environmental modifications, and that all of Students mandated Relates Service requirements would have been met. Student would have instruction, in addition to having the .

District believes it has provided FAPE. IDEA has not been interpreted to provide a parent with the right to visit a proposed placement, nor has it been interpreted as requiting proposed school to provide specific information regarding the proposed class. Since the District is not required to produce such information, and the Parent cannot compel the District to utilize a specific methodology, then it should follow that Parents inability to learn the information she sought should not rise to the level of a fatal procedural irregularity.

The annual goals and short term objectives are adequate, especially in light of the fact that 14 of the IEP‟s 22 goals and 50 of the 58 IEP‟s corresponding short term objectives were drafted by the employees of , the Parents choice if unilateral placement. The May 21, 2010 IEP meeting was a subcommittee meeting, and therefore a parent member was not required. Moreover, even of a parent member were required, the lack of a parent member in no way impeded a meaningful discussion as to Student‟s educational program. In particular, the CSE participants from were given the opportunity, and did in fact express their belief that a recommendation of a class was not appropriate for Student. Based on these facts, the lack of a parent member was not fatal. A fair reading of the IEP establishes that the CSE‟s recommendation was special class in an specialized school (Dept. Ex. 3-1), and moreover, the final Notice of Recommendation (Dept. Ex. 9-1) also advises Parent of an offer of placement in a “Special class in a ”. Mr. testified that counseling was not mandated because “we felt that needed to build very skills before he would be able to avail himself of benefit from a (Tr. p. 102), and that Student‟s behavioral needs would be addressed by a in a more kind of , rather than the kind of indirect nature of counseling, and that he knew that Student was actually not receiving . (Tr. pp. 102103). Even if it were to be found that mandated would have been ideal, the omission of is not fatal here. See Application of a Student with a Disability, Appeal No. 11042 (June 20, 2011) (finding that the CSE was warranted in not mandating counseling where student‟s private doctors did not recommend and student was not receiving at private school) The Parent‟s allegation that the IEP fails to provide any recommendation for promotion is without merit because the Mat 21, 2010, IEP mandates that Student will “participate in , and that the student may be assess through progress toward IEP goals”. The IEP states on page 3-13 that significant delays in all areas of development preclude participation in the general education setting at this time.

The Parent has not established that Student is making progress in the area of behavior. The record reflects that while has put various plans in place, Student continues to display what witnesses describe as , which is one of Student‟s major deficits.

The Parent did not give any notice to the District prior to Student being unilaterally placed at . Parent did not give notice to District until January 28, 2011, over

6 months after the school year began. Courts retain the discretion to reduce the amount of a reimbursement award if the equities so warrant…for instance if the parents failed to give the school district adequate notice of their intent to enroll child in a private school ,

It is well established that when the costs associated with a Parent‟s choice are relevant, and where found unreasonable, may result in a denial of full tuition reimbursement. There is no objective evidence in the record to support the assertion that the value of the services provided to the student actually cost and were worth $107,950, or whether the cost of such services was reasonable. Equity demands that if the District is ordered to reimburse Parent, then the District should only be required to pay the “true” cost, from the records here the true cost of the Student‟s attendance at is not $107,950. District asks for an order finding that the Parent not recover at all, or in the alternative, find that a substantial reduction in the amount of ant tuition reimbursement awarded to the Parent is warranted.

APPLICABLE STANDARDS

The 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 (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education 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 (Rowley, 458 U.S. at 206-07; 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 (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]; 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 (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]; 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 (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" (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 Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see 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 Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; 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'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see 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]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). Also, a FAPE must be available to an eligible student "who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade" (34 C.F.R. § 300.101[c][1]; 8 NYCRR 200.4[c][5]).

An appropriate educational program begins with an IEP 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]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2];

FINDINGS OF FACT AND LAW

Prong One of Provision of FAPE: the Board of Education Complied with the Procedural Requirements Set Forth in the IDEA

Any assessment as to the provision of FAPE must begin with an analysis of the procedural requirements and whether or not District met them. Parent asserts that the IEP of May 21, 2011 contains fatal defects as discussed below.

The CSE failed to have a parent member as part of the IEP Development team as state regulations require [8 NYCRR §200.3 (a)(viii)]. It is an uncontested fact that no parent member was present. There was no evidence that Parent and/or District signed a waiver to release the obligation of a parent member‟s presence (Tr. p. 111). The failure to have a parent member of the CSE present at a meeting at which a new IEP is developed is a sufficient basis to invalidate the CSE recommendation. (Matter of Handicapped Child,

24 Ed. Dept. Rep. 185; Matter of Handicapped Child, 23 id. 198; Matter of Handicapped Child, 22 id. 262). However, this may not be a procedural defect which seriously infringed on the Parents opportunity to participate in the creation of the IEP.

District contends that this was a subcommittee meeting Under New York State law, CSE subcommittees have the authority to perform the same functions as the CSE, with the exception of instances in which a student is considered for initial placement in a special class, or a student is considered for initial placement in a special class outside of the student's school of attendance, or whenever a student is considered for placement in a school primarily serving students with disabilities or a school outside of the student's district (Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c][4]).

Here, there was no testimony or documentary evidence to show that the May 21, 2010, meeting was a subcommittee meeting, in fact the IEP states the meeting is a CSE review (Dist. Ex. 3 p. 4), and therefore, the CSE Team was improperly composed.

Parent also asserts that Mr. n, the school , who also functioned as the at the May 21, 2010, meeting was not qualified to be the . The membership of each committee shall include:

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….may also be…the school psychologist…

8 NYCRR § 200-3(1)(v)

The District Representative has worked for the District for 25 years, and has a Master‟s degree in school psychology and permanent New York State certification in school psychology. (Tr. p. 69 at 3, 18-25) In his current assignment, he assigned to the committee on special education, he conducts individual evaluations of children with suspected disabilities or children that have already been classified. He conducts observations and conducts IEP meetings. (Tr. p. 68 at 7-15). In addition, Mr. has conducted hundreds of CSE meetings in his tenure (Tr. p. 109 at 1). Based on his years of experience, Mr. is qualified to be the District Representative.

The Parent‟s contention that the IEP contained misleading and contradictory information is without merit. Mr. explained that the error on s Ex. D page 14 of the IEP was typographical. The notes indicate that a “ profile needs do warrant the levl [sp.] of habilitation.” The witness testified that he wrote “ program provides, and that what he meant to write, and what he believes is clearly evident in the discussion is that „profile needs and delays do not warrant the program‟”. (Tr. p. 98 at 1423). Mr. explained that a program has and and is structured for children with in basic self-help skills involving complete attention in be . Because that program does not have as a heavy emphasis on , and , Mr. felt would be appropriate for Student, he ruled out this type of program. (Tr. p. 99 at 1-19). The very first page of the IEP indicates a staffing ratio of , as does the Final Notice of Recommendation sent to the Parent on June 18, 2010. (See Dept. Ex. 9-1)

Parent contends that the elimination of on this IEP was inappropriate. This allegation is also without merit. There is no testimony from Parent or any of Parent‟s witnesses that counseling was a necessary part of Student‟s IEP. In fact, there was no rebuttal testimony to Mr. ‟s statement that he knew for a fact that Student was not receiving . Furthermore, the CSE is warranted in not mandating counseling when student‟s private doctors did not recommend counseling and student was not receiving at private school. Application of a Student with a Disability, Appeal No. 11-042. Moreover, the CSE offered Student a full time .

Parent contends that she was not an integral part of the “team” because the IEP team did not consult with her as to her concerns for enhancing Student‟s education and her statutory rights were infringed upon even further because the IEP chairperson did not consider any other program other than what the NYCDOE was permitted to offer which was a setting.

I find that this conclusion is supported by the hearing record. The May 21, 2010, IEP indicated that the CSE considered other placement recommendations for the student including a setting because the level of habilitation (i.e., see Tr. p. 99 at 4-

19) that this program provides was not warranted, and a program which was rejected and the reasons the CSE rejected these options were noted in the IEP (P.‟s Ex D at p. 14).

Testimony shows that Parent did not speak at the CSE meeting nor was she asked for input. Parent testified that Mr. never spoke directly to her about what was transpiring, and that he did not ask her what she would like in respect to a placement for her son, and further, “I was there, but it was like I wasn‟t there, to him “[Mr. ]. Parent also testified that during the meeting Mr. did not explain why he believed a program would be appropriate for Student, nor were there any discussions at the meeting concerning Student‟s then issues. (Tr. p 242 at 23-25, 243 at 1-25, 244 1-12) Parents‟ testimony cannot be refuted by Mr. because it was made clear by him that he was testifying, not from any direct memory of this particular meeting, but rather of how things are ordinarily done in a CSE meeting (Tr. pp. 83 at 1-25, 84 1-7). The documentary evidence, the Rational from the IEP indicates “mom” as a participant, but there is nothing in the notes to indicate Parent was consulted or that she spoke (Dist. Ex. 4), However, Parent has indicated in her testimony that she felt Student could only learn in a or setting. The CSE members expressed their belief that Student could only make educational progress with the level of services they are presently providing; students lead teacher, instructors under the supervision of Dr. . (Id.at p.3) progress (T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009] [holding that parental input must be considered by the district but that parents do not hold a veto power in the selection of a student's program]; T.P. and S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]; Nack v. Orange City Sch. Dist., 454 F.3d 604, 610-11 [6th Cir. 2006]; R.R. and D.R. v. Scarsdale Union Free Sch. Dist., 2009 WL 1360980, at *8-*9 [S.D.N.Y. May 15, 2009]; A.G. v. Frieden, 2009 WL 806832, at *7 [S.D.N.Y. Mar. 26, 2009]).

Parent alleges that the IPE chairperson, attended the IEP meeting with a pre-determined outcome. Mr. testified that the IEP Document is prepared during and after the IEP meeting (Tr. at p. 110 at 10-14). On cross examination when it was asserted by counsel that the document that was promulgated at the meeting, the finished product, was typed before Parent sat down, the answer from Mr. was “No”. (Tr. p. 114 at 1322).

However, in light of the testimony and facts, I find the District did conduct a CSE meeting that infringed on Parent‟s right to be a part of the “team” and hindered and stifled Parent‟s participation in meaningful discussion and the creation of an appropriate IEP. Winkelman v. Parma City Sch. Dist. 550 US 516, 524, 530-32(2007); Application of a Student With Disabilities, Appeal No.: 10-070; Application of a Student With Disabilities, Appeal No.: 11-031.

The District also contends that pursuant to Federal and State Regulations the District Chairperson failed to order a for Student. The IEP is replete with instances of Student‟s significant . (Dist. Ex. D pp. 4, 7, 11,15). However, the District offered a full time to address these issues (Id. At 15). State law requires if there is evidence of , then any subsequent IEP review “shall…in the case of a student whose his or her learning or that of others, consider, when appropriate, strategies, including , and . 8 NYCRR §2004.4[d][3], 8 NYCRR §2004 [f ][1][I]. There is no question that Student‟s (Dist. Ex. D p. 4). However the District did add support by adding a full time . I find that any failure on District‟s part to see the need for additional evaluations, if a procedural error, is de minimus.

While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (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]; 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 (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]; 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]). “Only procedural inadequacies that cause substantive harm to the child or [her]/his parents-meaning that they individually or cumulatively result in a loss of educational opportunity or seriously infringe on a parent‟s participation in the creation and the formulation of the IEP – constitute a denial of FAPE. M.H.v. New York City Dept. of Edcu., 712 F. Supp. 125, 152-153 (S.D.N.Y. 2010).

I find that the District made procedural errors in not affording parent meaningful participation, having an improperly composed CSE and possible failure to order a . In this matter, it is likely that none of the procedural errors outlined above, if standing alone, rise to the level of seriously infringing on a parent‟s participation of resulting in a loss of educational opportunity for Student. However, cumulatively, when the procedural errors are viewed en toto, I find that Parent‟s opportunity to participate in the decision making process regarding the formulation of the IEP was seriously impeded. On a procedural basis, District failed to provide FAPE. The Appropriateness of the placement

Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see 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…'" (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 36465). 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" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (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"]; see Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002] [same]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 18889).

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. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see 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. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; 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]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [SDNY 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167

F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07079.

Parent has met her burden of proof. The record supports the finding that is an appropriate placement for Student, as it provides instruction specifically designed to meet the unique needs of Student. is a school for ( ) teaching model (Tr. p. 327, P.‟s Ex. “N”) provides according to Student‟s (Id.) The classrooms consist of , and (Tr. p. 344 at 7-9). An school day is long and consists and which includes lunch. (Tr. p. 395 at 6-20

The lead teacher, Ms. testified that she is responsible for making Student‟s program based on the IEP. She sends daily communication notes home to Parent. After the instructors are finished graphing the data that is collected daily, she meets with them to ascertain if there are any interventions necessary. (Tr. p. 336 at 1-11).The testified that during the 2010-2011 school year, in Student‟s they worked on his IEP goals concerning , and effectively, using materials, which gave Student a chance to utilize systems and achieve a level of competency in these areas. (Tr. pp. 299-300). Parent testified that Student has shown progress in areas such as . (Tr. p. 261 at 4-11). Parent testified that Student‟s , that his to , that they could now take Student out to and that he . (Tr. pp.230 at 22-25, 231 at 1-6).

The , and the all testified that ‟s integrated learning environment meant that they “worked together so that at the same time that we are collecting that baseline data we-myself, his his his , all , work , surveys that we use as screening tool, the scale, and the ) and all of these were compiled, and from that we derived the function of his behavior and went to choose tactics that could address his behaviors. (Tr. pp. 348, 361, 490-491-445-47).

The District argues only that Parent has not established that Student is making . (See IHO Exhibit ii at p. 21). This argument is not persuasive. Parent 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. . The testified that during the 2010-1011 school year student continued to and that he had a “ . Student required a within the classroom from a , and during , and further that a new was put in place by . (Tr. p. 311 at 11-19. 312 at 12-13; see also P.‟s Ex. “P”). The record supports that services are in place.

Placement at is appropriate. Balancing of the Equities

It is clear from Parent‟s testimony, and documentary evidence that she cannot afford the $107,000 tuition at . (Tr. pp 273, 274; P.‟s Ex. M). Parent has shown that she is obligated to pay the tuition regardless of the outcome of this hearing. (P‟s Ex. “L”). I find that Parent is entitled to tuition reimbursement. Equitable Considerations - Notice

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. I have given consideration to the District's argument that equities do not favor reimbursement because Parent did not give adequate notice of her intent to enroll Student in a private school at district expense.

I examined and ruled on Parent‟s allegations of procedural violations by the District, and equity demands I examine and rule on Parent‟s alleged procedural violation. Here, the hearing record reflects that the Parent did not give notice to the district of her intent to enroll the Student in a private school at district expense until more than six months after she had visited the Placement school, signed a contract with and informed a representative of that she would be seeking reimbursement under Connor.

Plaintiff testified that she informed when, or perhaps prior to signing the contract for tuition on July 10, 2010 (See P.‟s Ex. “L”) that she would be seeking reimbursement under Connor. (Tr. p. 271 at 3-9, 272, 18-24). In fact, when questioned by counsel for the District, Parent stated that the use of the term “Connor” was Parents and not . (Tr. p. 273 at 1-7). Parent testified that she had a conversation with a woman at named , whom Parent believes to be the , and explained to her that she did not have the , but she did not find any appropriate yet and she was going to try and keep Student at . (Tr. p. 273 at 11-15). The testimony shows that Parent knew, on or before July, 10, 2010 that she was not going to accept the placement the District had offered her son on June 18, 2010. (See Dist. Ex. “9”).

Parent did not send “notice” to the District until a letter dated January 28, 2011, over six months after she had determined to unilaterally place Student, who started another session at in July of 2010 (Tr. p. 269 at 4-14), thereby depriving the District of an opportunity to devise an appropriate plan or take any other corrective measures before the Student is unilaterally placed in such an .

Parent testified that the reason she did not inform the district sooner was due to life and . She stated that she “needed to take care of herself first, before she could go along with this”. (Tr. p. 257 at 7-21). Parent was , and continued to work during the approximately 170 days from the time Parent informed that she had not found a placement and the time she informed the District she was not accepting the placement. (Tr. p. 269 at 18-25). According to Parent, this is the third time she has requested an impartial hearing for tuition reimbursement (See IHO EX I, p.1), therefore Parent can hardly claim that she is in anyway unaware of procedures.

The IDEA allows that 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 student 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" (20 U.S.C. § 1412[a][10][C][iii][I]; see 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" (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 reimbursement in cases where it was shown that parents failed to comply with this statutory provision (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]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

When a court or hearing officer concludes that a school district failed to provide a [free and appropriate public education] and the private placement was suitable, it must consider all relevant factors, including the notice provided by the parents and the school district's opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child's private education is warranted. Forest Grove Sch. Dist. v. T.A. (Forest Grove III), 129 S. Ct. 2484, 2496 (2009) (quoting 20 U.S.C. § 1412(a)(10)(C)(ii)).

Perhaps, due to circumstances, a delay of one or even two months might be excusable and rules as de minimus, however, 6 months, or 170 days, is unreasonable and constitutes a failure to provide notice to the District. Upon review of the hearing record and the facts herein, I find that Parent failed to provide the notice required by the IDEA and, therefore, is not entitled to full reimbursement of tuition for the 2010-2011 school year.

ORDER

Wherefore, for all of the above stated reasons, the District failed, through procedural error, to provide FAPE for student in the 2010-2011 school year, and it is Ordered, that District is to pay the tuition of $107,000 for the placement of Student in MCC for the 2010-2011 12 month school year, except that award of tuition is to be reduced by $53,974.98, equaling 6 monthly installments payments (the time it took parent to give the District notice of unilateral placement ant intent to seek reimbursement) of $8,995.83 as per the contract with MCC. (See P.‟s Ex. “L”). Pendency was granted from March 17, 2011 and that order still stands. Therefore the district shall pay tuition from the time pendency began on March 17, 2011 and in addition, the District shall pay tuition for January and February 2011 and the first half of March 2011. Parents request for money spent for evaluation and assessment fees, the school deposit, school application fees and any other cost associated with Parents pursuit of free and appropriate education for Student in the 2010-2011 school year, is granted upon presentation of proper documentation evidencing said expenditures. Dated: September 13, 2011

_____________________________

LORRAINE M. FERRIGNO, ESQ.

Impartial Hearing Officer

LMF: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 Education Progress Report 2 pages B Progress Report Dated 4/30/09 2 pages C Progress Reports Dates 4/30/10 2 pages D IEP Dates 5/21/10 16 pages E Education Progress Report Dates 12/1/10 4 pages F Report Dates 12/10/10 2 pages G Document Dated 1/28/11 3 pages H Function 9 pages I Document Dated 3/14/11 7 pages J New York City DOE Letterhead Dated 5/4/10 K Individual income tax return W-2 1 page L Enrollment Contract 2010-1011 2010-2011 M Federal Income Tax Return 2010 for 26 pages N Information about 6 pages O Education Progress Report Dated 4/1/2011 5 pages P Assessment Dated October 2010 18 pages Q Strategies for

Dated 12/15/2010 4 pages R Learning Units and Numbers of Cumulative

Criteria Met 7 pages S evaluation Dated 5-31 and6-7-11 9 pages T Proof of Payment 4 pages U CV of Dr. 12 pages V Document from

Teacher‟s Educational Progress Report 11 pages

DEPARTMENT OF EDUCATION

1 Petitioner‟s complaint 7 pages 2 Department of Education‟s Due Process Response 3 pages 3 IEP Dated 5/21/10 16 pages 4 Document entitled Rationale 3 pages 5 Teachers report Dated 12/17/09 4 pages 6 Report 1 page 7 Report Dated 12/21/09 2 pages 8 IEP Dated 8/5/09 25 pages 9 Final Notice of Recommendation Dated 6/1810 1 page 10 Parent letter to CSE 3 pages 11 School site document printed from

Schools.newyorkcity.gov Dated6-10-11 12 Series of Documents from the 20 pages

IMPARTIAL HEARING OFFICER

i Parent‟s Closing Statement 26 pages ii DOE‟s Closing Statement 26 pages

**Note the parite4s were given a page limit of 26 pages for their closing statements, Counsel for Parent exceeded the page limit and those pages in excess of 26 pages are not part of the record, nor were they considered in this decision.

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Footnotes

[8] NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).