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: June 14, 2011

June 17, 2011

July 12, 2011

Actual Record Close Date: August 9, 2011

Hearing Officer: James P. Walsh, Esq.

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

Parent of — Student

Esq. Attorney Associated with Partnership — Parents

For Children’s Rights, Attorneys for Parent — Parents

Head Teacher at The Center Academy – Was Student’s ELA (by phone) — Parents

Teacher During 2010-2011 School — Parents

Year — Parents

School Counselor and School Social Worker at The (by phone) — Parents

Center Academy – Was Student’s — Parents

Counselor in the For — Parents

Living Program During the — Parents

2010-2011 School Year — Parents

Esq. Attorney for District and — DOE

DOE

Education Teacher at – Served as Teacher (by phone) — DOE

During Summer Session - 2010 — Parents

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

Parent of — Student

Esq. Attorney Associated with Partnership — Parents

For Children’s Rights, Attorneys for Parent — Parents

Transition Coordinator at The Center Academy (by phone) — Parents

/ Pathologist at The Center Academy’s (by phone) — Parents

For Living Program – — Parents

Provided / Services — Parents

to Student during the 2010-2011 — Parents

School Year — Parents

Chair of the Department of Mathematics and Science at The (by phone) — Parents

Center Academy – — Parents

Student’s Advisory Teacher — Parents

during the 2010-2011 — Parents

School Year — Parents

Esq. Attorney for District and — DOE

DOE

Education Teacher-Assigned - Served on C.S.E. that prepared (by phone) — DOE

Student’s I.E.P. on 3-4-10 — Parents

Assistant Principal at -School to which Student was (by phone) — DOE

Assigned for the 2010-2011 School — Parents

Year — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 12, 2011

Parent of — Student

Esq. Attorney Associated with Partnership — Parents

For Children’s Rights, Attorneys for Parent — Parents

Department Chair – for Living Program at The (by phone) — Parents

Center Academy — Parents

Employee Relations Manager at The Center For (by phone) — Parents and Development — Parents

Esq. Attorney for District and — DOE

DOE

Vice-President for Finance and Administration at The Center (by phone) — DOE

The Matter of . (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York on June 14, 2011, June 17, 2011 and July 12, 2011. The undersigned had been appointed by the Impartial Hearing Office of the Department of Education of the City of New York to preside over this matter by notification dated April 14, 2011. After the conclusion of proceedings on July 25, 2011, both parties requested the opportunity to submit written Post-Hearing Memoranda. Such requests were granted so long as such were submitted by August 9, 2011. Both attorneys duly submitted timely Post Hearing briefs and each was read and considered. The Actual Record Close Date was August 9, 2011.

The proceeding was initiated by Parent by the filing by Parent’s attorneys of a Due Process Complaint Notice, dated April 12, 2011 and received by the New York City Department of Education’s Impartial Hearing Office on April 14, 2011(Exhibit 1). Parent seeks to challenge the appropriateness of the Individualized Education Program (I.E.P.) created by District’s Committee on Education (C.S.E.) on March 4, 2010 (Exhibit 3) for Student’s education program for the 2010-2011school year and asserts that District’s failure to prepare an appropriate I.E.P. deprived Student of a free, appropriate public education (FAPE). Parent has unilaterally placed Student at The Center Academy for the 2010-2011 school year and seeks a determination requiring the District or the New York City Department of Education to make the direct payment of all tuition costs incurred in such unilateral placement to the Center for and Development.

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 free, appropriate public education (FAPE) that emphasizes 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 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., 2008 WL 5505470, at *4 [2d Cir. Jan. 16, 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 decisionmaking 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]). 12

17

The New York State Education Department's Office of State Review maintains a website at www.sro.nysed.gov. The website explains in detail the appeals process and includes State Review Officer decisions since 1990.

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 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).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate 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).17 The student's recommended program must also be provided in the 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 P. v. Newington Bd. of Educ., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). A board of education may be required to reimburse parents for their expenditures for private educational services obtained for the student by his or her parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra, 427 F.3d at 192). belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148).

Further reviews by courts of competent jurisdiction have ruled that parents who lack the financial means to front the cost of a unilateral placement but are successful in finding an institution willing to accept a student and take the risk that the parent will not be able to pay or will take years to do so, may seek retroactive tuition payment relief. (Mr. and Mrs. A, obo D.A. v. New York City Department of Education, United States District Court - S.D.N.Y. (Feb. 2011 (2011 WL 321137).

With such guidelines as are set forth above, I now proceed to a review of the issues presented in this proceeding.

Student is presently years one month of age, having been born on . Student had attended various classes within the public school system until the conclusion of his Grade. In that Grade program, Student was educated in a General Education class with Education Teacher Support Services (Exhibit 7 at p.9) In 2008, Parent placed Student at The Center Academy for his Grade. Student has remained in such placement and, in June of 2011, concluded his Eleventh Grade studies at The Center Academy (T.R.483).

The most recent psycho-educational evaluation of Student, performed in January of 2008, (Exhibit7), through the utilization of the Wechsler Intelligence Scale for Children – Fourth Edition (WISC – IV) determined Student’s Full Scale IQ at . The evaluation placed Student’s Grade Equivalency, through the utilization of the Wechsler Individual Achievement Test –Second Edition (WIAT-II) as follows: Phonological Awareness and Decoding Skills – ; Ability to Solve Written Calculation Problems – ; Reading Skills – ; Skills – ; Math Reasoning Skills ; and Skills – .

District’s Committee on Education (C.S.E.) convened on March 4, 2010 to conduct a C.S.E. Review and to prepare Student’s Individualized Education Program (I.E.P.) for Student for the 2010-2011 school year. Attending that meeting were Education Teacher - , who also served the role of District Representative, School Psychologist , and Parent Member , as well as Parent , , Student’s Math Teacher at Center Academy (hereafter “ ”), , Assistant Head of School at , J. Trainer, Student’s Teacher at and , Student’s English Arts Teacher at . The Committee determined that Student’s Present Levels of Performance were as follows: Decoding at ; Reading at ; at .. In Mathematics, the Committee found as follows: Computation at and Problem Solving at Grade. It was noted that Student was performing significantly below grade and age expectations in all academic areas. The Committee noted Student’s need for small group instruction, directions repeated and rephrased, and cues, a approach, graphic organizers, and scaffolding. (Exhibit 3);

The I.E.P issued as a result of that meeting (Exhibit 3) found Student to be eligible to receive education and related services, classified Student as having and recommended Student’s placement in a Twelve-month Class in a School, having a staffing ratio of , with the Related Service of three times weekly, forty-five minutes per session, in a group of three, and Therapy three times weekly, forty five minutes per session, in a group of three. The I.E.P. also contained various Annual Goals and Short Term Objectives, as well as Transition Services (Exhibit 3). Parent advised the Committee, at its March 4, 2011 meeting, that Parent would not send Student to the Summer portion of the Twelve-month school year, as a vacation had already been planned, but would send him to the regular portion of the school year that commenced in September (T.R. 515).

Parent objects to the sufficiency of the I.E.P. prepared by the Committee on March 4, 2010, contending that the evidence submitted at the hearing demonstrates that the Committee members had insufficient information with which to accurately assess Student’s educational needs. Parent accurately notes that the Committee relied on an Observation Report prepared by Committee Member on November 17, 2009, on Student Progress Reports from (Exhibit 5) and on the input from the staff at that participated in the meeting. While Parent complained about the sufficiency of the Psychological Evaluation prepared in January of 2008 (Exhibit 7) and the Vineland Parent/Caregiver Rating Report, also prepared in January of 2008 (Exhibit 7), it is clear that the Committee did not have the Psychological or the Vineland in front of it when it prepared the challenged I.E.P. (T.R.311) I do, however, note in passing, that I found the Psychological Evaluation Report less than satisfactory, in that the Report simply reported scores, without any characterization of the Student’s , or other characteristics (8 NYCRR 200.1(bb), and the Vineland Parent/Caregiver Rating Report, with information provided by one , whose relationship to Student was “Other”, provided little meaningful information about Student – and certainly little, if any, information regarding Student’s vocational interest or abilities.

Committee Member did, however, indicate that the members of the Committee were familiar with Student and his needs and that the information provided by the staff of in the sixteen-page Progress Report of December 2009 (Exhibit 5) and the active participation of Student’s Mathematics Teacher, English Arts Teacher, Therapist and Head of School , provided the Committee with more than ample information regarding Student’s present levels of performance, his vocational needs and services and his social, emotional and levels..Witness further indicated that most of the Annual Goals and Short Term Objectives contained in the I.E.P. were not only fully discussed with Student’s teachers and staff from , who were clearly familiar with Student and his needs, but that such Goals and Objectives were, in fact, drafted and submitted by those participants.(T.R.284).

Parent also challenged the recommended I.E.P. because the Committee failed to obtain an updated / evaluation. However, I note the presence of Student’s Therapist from at the March 4, 2010 meeting, who was clearly familiar with Student and his present levels and current needs for Therapy. Indeed, the therapist who was working closely with Student on an ongoing and daily basis would appear to be in a far better position to assess Student’s abilities and deficits and recommend needed services than a therapist who might conduct a one-time assessment of Student in the area of / . I note, further, that at no time did Parent request an updated Evaluation. Thus, it is my finding that the Committee had sufficient evaluative data to prepare Student’s / Goals and services as are contained in the I.E.P.

Similarly, while the Committee had no appropriate vocational assessment/evaluation report upon which to consider Student’s vocational or transitional needs, it did receive information from the attendees from as to the significant vocational program afforded Student at that placement. Thus, I find that Transition Services as contained in the challenged I.E.P. to be, at least, sufficient.

Parent contends, additionally, that Student’s proposed I.E.P. is defective insofar as it is in non-conformance with the Regulations of the Commissioner of Education of the State of New York regarding the amount of instructional services to which Student was entitled in order to meet his individual needs. The challenged I.E.P. provides that Student is to receive Therapy three times per week, forty-five minutes per session in a group of three (Exhibit 3). However, as the Committee has classified Student as having , it ought to have complied with the requirement set out in Commissioner’s Regulations Part 200.13, which deals with the Educational Programs for Students with , and specifically provides that:

“Instructional services shall be provided to meet the individual needs of a student with for a minimum of 30 minutes daily in groups not to exceed two, or 60 minutes daily in groups not to exceed six.”

8 NYCRR 200.13(a)(4))

Clearly, if I am to equate “Instructional services to meet individual needs” with “ Therapy”, since Student was to receive such services in a group of three, i.e., a group exceeding two, the proposed I.E.P. is out of compliance, as it provides for Therapy to be provided only three days per week – not five, and for forty-five minutes per session – not sixty. Had there been in the record before me evidence of additional instructional services that might have been provided in the classroom sufficient to meet the above-cited requirement, I might be able to conclude that District had met its obligation to provide instructional services in accord with the above-cited Regulation. See Application of the Board of Education, Appeal No.08-140; Application of the Board of Education, Appeal No. 08-091; Application of the Board of Education, Appeal No. 07028). However, the only teacher testifying on behalf of the District and Department of Education as to how his particular class operated was Witness , who clearly would not have been Student’s classroom teacher during the September through June portion of the 2010-2011 school year (T.R. 105-106). Thus, I am left only with the nonconforming provision in the challenged I.E.P. regarding Instructional services as outlined in 8 NYCRR 200.13 (a)(4)). However, I find the inadequate provision for Instructional services to constitute a procedural violation that does not rise to the level of depriving Student of his right to a free, appropriate public education.(8 NYCRR200.5(j)(4)(ii)).

Based upon the above review, it is my determination that the I.E.P. created by the Committee on March 4, 2010 is sufficient.

Based upon the Committee recommendation, Parent received, sometime in June of 2010, a Final Notice of Recommendation (FNR) that advised that Student was to attend K@Brooklyn Transition Center for the 2010-2011 school year (Exhibit 8). Parent visited that site on three ; June 17, 2010; July 13, 2011 and September 18, 2010 (T.R. 489). On Parent’s first visit on June 17, 2010, Parent was shown no proposed class, having been told by the Guidance Counselor who met with her that there was no class to show Parent. Thereafter, Parent called the same Guidance Counselor and requested an appointment to see Student’s class and, on July 17, 2010, returned to the proposed site. Again, Parent was advised that she could not see Student’s proposed class, as all of its students had gone swimming. Parent made further attempts throughout July and August of 2010 to contact the proposed school to arrange for a visit, and, on or about September 17, 2010,visited the proposed site for the third time (T.R.499-501). After a short visit with the Building Assistant Principal , Parent was turned over to an Administrative Assistant, who took Parent to see what was identified to her as Student’s class. Parent testified that she was shown a class for children with that had five children, some of whom were non- and all of whom appeared to be lower functioning than Student (T.R.503-504). Parent then expressed her dissatisfaction with the proposed placement and left. Parent thereafter wrote to the Committee Chair, expressing such dissatisfaction and stating her intention that Student continue at (Exhibit Z).

District offered the testimony of Witnesses ,a Education teacher assigned to . While Witness gave much detail regarding the operation of his classroom and the methods that he would be able to employ in meeting the requirements of Student’s proposed I.E.P., I find it unnecessary to review or evaluate such testimony, since it was irrelevant. Education Teacher testified that he would have been Student’s classroom teacher at only during the months of July and August, 2010. However, Student would not have attended the program at during those summer months, as Parent had already advised the Committee that Student would not attend the Summer session. Therefore, the issue of whether Student’s program could have been effectively implemented by Teacher during the months of July and August 2010 was moot. Witness further testified that, while he would be teaching a class at during the regular school year, his class would be composed of only and Grade students and, as Student was to be placed in an Grade classroom, Teacher would not have been his teacher (T.R.105-106). I discredit the contrary testimony provided by Witness (T.R.452). Further, Witness ’s class, at the commencement of the regular school year in September, already had a full complement of twelve students.

Parent testified that, during the visit of September 17, 2010, she was shown by a school Administrative Assistant to a class denoted as Y10, which, according to Parent, was identified by the Assistant Principal, the Administrative Assistant accompanying Parent, and by the classroom teacher of Y10, as the class in which Student would be placed (T.R.503).While such class was identified as the class for students with , the class had a staffing ratio and, thus, was an inappropriate class for Student. Such inappropriateness was confirmed by Witness (T.R.303). Further, such class would have been contrary to the recommendation of the Committee as contained in Student’s I.E.P. that Student should receive his education program in a Class (Exhibit 3).

Based upon the above, it is my finding that the District has failed to establish that it offered Student an appropriate placement at . Having made such determination, it is unnecessary to consider the other allegations made by Parent regarding other insufficiencies related to the proposed program at . Upon such finding, it is my determination that District has failed to establish the appropriateness of its proffered program to Student for the 2010-2011 school year and that such resulted in a denial to Student of a free, appropriate public education.

Having determined that the District has failed to establish that it offered Student a free, appropriate public education for the 2010-2011 school year, it is necessary to examine the appropriateness of the unilateral placement selected by Parent for Student at . Parent has the burden of establishing that such unilateral placement was reasonably calculated to enable Student to receive educational benefit and provided educational instruction designed to meet Student’s needs. is a private educational facility whose school program affords an academic program in a small class setting of eleven students. Witness , the Department Chair for the school’s for Living Program, the program in which Student is enrolled and has been for his entire attendance at , described in detail the philosophy of the school and its for Living program (T..R. 544-545). has a student population of one hundred five students, all between the ages of thirteen and twenty-one. In the for Living Program, the ages range from thirteen to nineteen (T.R.545), although in Student’s class, the range was closer – fifteen to nineteen. All students exhibited deficits in cognitive functioning, adaptive functioning and social communication (T.R. 545-546). The Program seeks to address the needs of students with social communication and adaptive functioning deficits. Student’s program was divided into two blocks - a Community Living Skills block and a Daily Living Skills block. In the Community Living Skills block, Student received instruction in English Arts, Social Studies and / skills, while, in the Daily Livings Skills block, Student received instruction in Science, and Adaptive Life Skills (T.R. 548-549). Student was placed with students with similar disabilities and functioned in mid-range in his classes. Student was also offered transition services through the school’s Community Transition Program that affords students an internship so as to expose students to the community and teach then pre-vocational and vocational skills in preparation of their transition from school (T.R. 336). According to Witness , Student successfully interned with the New York City Department of Parks for a total of ten work hours during the Winter of 2010.

A review of the Progress Reports issued by for Student in December of 2010 and March and June of 2011 (Exhibits C, D and E), as well as that issued in June of 2009 (Exhibit 5) confirms that Student was making gains in all areas of his programs. All of the staff personnel at who testified in this proceeding, Witness , Witness and Witness , as well as Witnesses and , affirmed that Student made significant progress throughout the 2010-2011 school year.

It is my finding and determination that Parent has successfully borne her burden of establishing the appropriateness of the unilateral placement of Student made by Parent at for the 2010-2011 school year.

There remains but the consideration of the third prong enunciated by the Supreme Court in its Burlington and Carter decisions – that of Equitable Considerations. Contrary to Parent’s assertion, the burden of establishing that Parent is entitled to reimbursement falls on Parent. Parent attended the Committee meeting of March 4, 2010 and actively participated in the development of Student’s I.E.P. Parent persistently sought to view the District’s proposed placement at K, arranging for visits to the proposed site on three and, in the interim of those visits, communicating with regarding her concerns (Exhibits V, W and Z).

District challenges the good faith of Parent in working with the Committee, noting that Parent had, after the Committee meeting of March 4, 2010, but well before any attempt by Parent to visit the proposed site, signed a Contract with on April 23, 2010 to enroll Student in its school program for the 2010-2011 school year (Exhibits J and K). District also notes that Parent’s attorney wrote to the District on August 24, 2010 – before Parent’s visit to K in September - advising that Parent “will enroll” Student at for the 2010-2011 school year and seek an order requiring the Department of Education to pay for Student’s tuition (Exhibit X). It is uncontested, however, that by that date, Parent had already enrolled Student at – and had not seen any proposed class at

K. However, Parent emphasizes that the Contract which she signed in April of 2010 was signed in order to secure a place at for Student in the event the District failed to offer an appropriate program. Further, the Contract signed on April 23, 2010 specifically provided that Parent would be released from the Contract without financial penalty if Parent chose to accept a placement recommended by the Department of Education and could do so at any time before October 31, 2010.(Exhibit J, para 10(b)). Also, Parent’s counsel cogently argues that rejection of a proposed placement must be done no less than ten days prior to the commencement of the school year (20 U.S.C. §1415(a)(10)(C)(iii)(bb)). I find both explanations sufficient to overcome any negative connotations of the actions taken.

The District also raises significant objection to the provision in the Contract signed by Parent (Exhibit J) that states that Parent will be fully liable for the payment of tuition to should Parent be unsuccessful in her application for an order requiring Department of Education to pay such tuition. Clearly, envisions Parent’s commencement of an Impartial Hearing to secure such payment. In fact, much of the Contract is involved in spelling out to Parent her duties to secure Tuition Funding. Additionally, as District points out, was aware, at the time of the signing of the Contract, of Parent’s true financial condition, which belied any possibility on Parent’s part to meet such obligation in the event that Parent did not prevail in this proceeding. As District counsel notes, the 2010-2011 school year is now complete, so that the only true party at interest in the outcome of this proceeding is . Nevertheless, as previously noted, a parent who lacks the financial means to front the cost of a unilateral placement but is successful in finding an institution willing to accept a student and take the risk that the parent will not be able to pay or will take years to do so, may seek retroactive tuition payment relief. (Mr. and Mrs. A, obo D.A. v. New York City Department of Education, United States District Court - S.D.N.Y. (Feb. 2011 (2011 WL 321137). Thus, the argument raised herein by counsel is identical to that raised by the Department of Education in the above-cited case and must suffer the same rejection.

It is, then, my finding and determination that Parent has successfully borne her burden of establishing that equitable considerations favor an award of tuition reimbursement – or here, an award of direct payment to – for Student’s attendance at for the 2010-2011 school year Parent has also established that her income and assets are insufficient to undertake the costs associated with sending Student to (T.R.513). Parent’s income, as set out in Parent’s Federal Tax Return (Exhibit R), amounted to $7,548. Parent’s 2011 Social Security benefits totaled $1,020.50 per month – or $12,246.00 per year – after withholding. Parent seeks an order directing the New York City Department of Education to directly pay the sum of $46,500.00. Such was the amount of tuition set out in the Enrollment Contract executed by Parent on August 3, 2010 (Exhibit J).. Further, the Department of Education has raised no issue regarding the appropriateness of such amount of tuition charged.

ORDER

Based upon the above, it is

HEREBY ORDERED that Parent’s Due Process Complaint Notice seeking direct payment of the sum of Forty-Six Thousand Five Hundred ($46,500.00 ) Dollars to Center for and Development for the Parent’s unilaterally-selected placement of Student at Center Academy for the 2010-2011 school year be, and the same hereby is, GRANTED; and it is

FURTHER ORDERED that the District and the New York City Department of Education pay to the Center for and Development the sum of Forty-Six Thousand Five Hundred ($46,500.00) Dollars. Dated: August 23, 2011

______________________________

JAMES P. WALSH, ESQ.

Impartial Hearing Officer

JPW:nn

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO RECORD ON JUNE 14, 2011

C. Student’s Progress Report from The Parent Center Academy for December 2010 (17 pages; Parents)

D. Student’s Progress Report from The Parent Center Academy for March 2011 (16 pages; Parents)

E. Student’s Progress Report from The Parent Center Academy for June 2011 (16 pages; Parents)

H. Group Reading Assessment and Diagnostic Parent Evaluation of Student, dated 10-1-10 (1 page; Parents)

I. Group Reading Assessment and Diagnostic Parent Evaluation of Student, dated 5-09-11 (1 page; Parents)

J. Student Enrollment Contract with Parent Center Academy, undated (2 pages; Parents)

K. Affidavit by Parent Attesting to Parent Parent Signing of Enrollment Contract, Sworn to 4-6-11 (1); Copy of Contract (2) (3 pages; Parents)

L. Copy of Parent’s #1040 for 2010 Parent (2 pages; Parents)

M. Copy of Parent’s SSA Entitlement Letter, Parent dated 2-16-11 (2 pages; Parents)

P. Annual Review Notice to Parent, dated Parent 10-1-09 (2 pages; Parents)

V. Letter from Parent to M., dated Parent 6-25-10 (2 pages; Parents)

W. Letter from Parent to M., dated Parent 7-20-10 (3 pages; Parents)

X. Letter from Parent’s Attorney to C.S.E. Parent Chair, dated 8-24-10 (2); Fax Cover Sheet (1); Transmission Verification Report, dated 8-24-10 (1) (4 pages; Parents)

Y. Fax Cover Sheet from Parent’s Attorney Parent \ to C.S.E. Chair, dated 8-25-10 (1); Copy of Letter from Parent’s Attorney to C.S.E. Chair, dated 8-24-10 (2); Fax Cover Sheet, Dated 8-24-11 (1); Transmission Verification Report (1); Copy of Fax Cover Sheet, dated 8-24-10 (1) (6 pages; Parents)

Z. Letter from Parent to C.S.E. Chair, dated Parent 9-25-10 (2); Transmission Verification Report, dated 9-23-10 (1) (3 pages; Parents)

1. Parent’s Due Process Complaint Notice, dated 4-12-11 (6); Fax Cover Sheet (1) (7 pages; DOE)

3. Student’s I.E.P. as Developed on 3-4-10 (14 pages; DOE)

4. Minutes of C.S.E. Meeting of 3-4-10 (2 pages; DOE)

5. Center Academy Progress Report For December 2009 (16 pages; DOE)

6. Classroom Observation Report by J., dated 11-17-09 (1 page; DOE)

7. Vineland Parent/Caregiver Rating Report, dated 1-15-08 (7); Observation Report by E. Brody, dated 1-18-08 (1); Psycho-educational Report by E. Brody, dated 1-16-08 (2) (10 pages; DOE)

8. Final Notice of Recommendation, dated 6-14-10 (1 page; DOE)

DOCUMENTATION ENTERED INTO RECORD ON JUNE 17, 2911

F. Group Mathematics Assessment and Parent Diagnostic Evaluation, dated 10-5-10 (1 page; Parents)

G. Group Mathematics Assessment and Parent Diagnostic Evaluation, dated 5-20-11 (1 page; Parents)

T. Education Service Delivery Report, Parent For AC 4 Cover Sheet, dated 4-15-11 (1); DOE’s Parent Due Process Response, undated (3) (3 pages; Parents)

DOCUMENTATION ENTERED INTO RECORD ON JULY 12, 2011

None