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: September 21, 2012

Actual Record Closed Date: November 8, 2012

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 21,

2012

Name Title For

CSE Representative — DOE

Attorney — Parents

Mother — Parents

Clinician — Parents

On July 13, 2010, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of an (18) year old student attending a New York State approved residential private school and the New York City Department of Education (“DOE”) Home District: , Service District: concerning the student’s special education program. After adjournments were granted on consent or for good cause, the impartial hearing was held on September 21, 2012. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, both the DOE and the Parent argue that the student’s Individualized Education Program (“IEP”) dated April 3, 2012 is procedurally and substantively proper and appropriate for the student. (T-5 & 8) The dispute concerns the DOE’s acknowledged failure to offer the student a placement for the 2012-2013 school year. (T6, 8 & Parent’s Due Process Complaint - “DPC”) The DOE argues that it does not issue a “Nickerson Letter” for a residential placement as was recommended for the student. (T-7) The Parent argues that either a “Nickerson Letter” should be issued or an order should be issued directing the DOE to maintain the student at his current New York State approved residential placement for the 2012-2013 school year. (T-10-1) The Parent unilaterally maintained the student’s placement at his current private residential school for the 2012-2013 school year. (DPC) The student is classified as having an “ ” and is recommended to attend a 12-month residential placement in a non-public school. (Id.)

The Parent request that the DOE be ordered to pay all education and maintenance tuition charges, including the costs of the related services for the student’s New York State approved residential private school, from July 1, 2012 to June 30, 2013.

THE DOE’S CASE

The DOE argues that this is the the student has attended his current New York State approved residential private school. (T-5) The private school uses “ treatment which the DOE does not approve of. (Id.) However, the student does not receive that type of behavior modification system. (Id.) The student’s IEP dated April 3, 2012 is appropriate for him. (Id.) There is no dispute that the student was timely evaluated for his IEP. (T-6) However, he has not received a placement offer. (Id.) The student is designated a 12-month student. (T-6-7) The student was recommended for a residential placement. (T-7) The DOE has not issued a “Nickerson Letter” in this case because the agency does not issue them for residential placements as a matter of policy. (T-7) The DOE acknowledges that the Parent has cooperated with the DOE. (T-30)

The DOE did not call any witnesses to testify on its behalf or submit any documents into evidence. (T-12) The DOE did not present a case-in-chief nor did the agency make a closing statement. (T-32)

THE PARENT’S CASE

The Parent argues that the student is currently and classified as having an .” (T-

8) The Parent fully agrees with all of the services and recommendations in the student’s IEP dated April 3, 2012. (Id.) The student was recommended for a 12-month placement in a New York State approved residential school. (Id.) As of July 1, 2012, there was no placement recommendation made for the student. (Id.)

The Parent further argues that she does not believe this is a case where she has the burden of proof to prove that the student’s New York State approved residential private school is appropriate for him for the 2012-2013 school year, as the private school had been recommended for the student during the previous years. (T-9) The student had previously attended another New York State approved school where he exhibited . (Id.)

The Parent also argues that the DOE’s policy to not issue Nickerson Letters for residential placements is completely frivolous. (T-10) Other IHO’s have disregarded the DOE’s policy and issued Nickerson Letters in similar cases. (Id.) A Nickerson Letter is an appropriate remedy in this case and so is a finding that the student’s current New York State approved residential private school is appropriate for him for the 2012-2013 school year. (T-10-1) The Parent withdrew her request for an “Order on Pendency.” (T-32-3)

The Parent called (1) witness to testify on her behalf and submitted (5) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s one and only witness is the student’s clinician. (T-13) He is a licensed mental health counselor in Massachusetts. (T-15) He is currently employed at the student residential private school. (T-16) The private school is a (24) hour a day,

(365) day a year residential program for students with that is approved by the New York State Education Department. (Id.) He has been the student clinician since December. (T-17)

The witness stated that he participated in the student’s IEP meeting on April 3, 2012. (T-18 & P-C) He does not recall what documents the Committee on Special Education (“CSE”) requested. (T-18) He also does not recall if everyone agreed on the recommended services. (Id.) He did formally evaluate the student. (T-19) He conducted a “functional behavior assessment” (“FBA”) and found that the student has problems with and that requires he . (T-20) He did not make a specific diagnosis of the student. (Id.) He agrees with the program and service recommendations on the student’s IEP. (T-21) The student is currently receiving those related services at the private school. (T-22)

The witness stated that the student has progressed since the beginning of the 2012-2013 school year in that he first had difficulty , on staff and other students and at times required “ .” (T-22) He has since progressed in their “level system” and earned increased degrees of independence. (Id.) The frequency of has decreased tremendously. (Id.) The student has started “community outing programs.” (T-23) The student would behave inappropriately to either gain attention or to escape from demands. (T-23) He developed a “ ” (“ ”) for the student. (T-24)

The witness stated that the student’s teacher’s report that he is making strides in catching up on his academic materials. (T-25) The student is in a classroom with approximately (6) to (7) other students who are similar to him in age, generally come from New York City and are . (T-25-6) The student works one-on-one with subject area tutors. (T-26) He does not believe that the student has taken any regents exams so far. (Id.) The student is working towards an equivalency diploma. (Id.) His mother has been temporarily appointed the student’s guardian in Massachusetts. (Id.) The student does not receive any “ ” at the private school. (T-27)

On cross examination, the witness testified that the student has a ‘transition plan” to have him take the equivalency diploma and reintegrate into the community. (T-28) If the student continues to improve, he will become eligible for an in-school employment position and if successful there, he will apply for outside of school employment. (Id.) There was no re-direct examination of the witness. (T-29)

During voir dire, the witness testified that “emergency physical restraint” is not considered an . (T-29) They would not seek approval from the Massachusetts court to use aversive treatments on the student. (T-29-30)

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a Free and Appropriate Education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (See Rowley, 458 U.S. at 203) However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and Rowley, 458 U.S. at 189) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379) Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132) Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 37071; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02014 and 01-105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)

I first turn to the question of whether a “Nickerson Letter” may be ordered in this case. A “Nickerson letter” is a letter from the Department of Education (DOE) to a parent authorizing the parent to place the child in an appropriate special education program in any state-approved private school, at no cost to the parent. (See Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298) The remedy of a Nickerson letter is intended to address the situation in which a child has not been evaluated or placed in a timely manner. (See SRO Nos. 06-088, 02-075 & 00-092) The remedy is also available when a student has completed all necessary evaluations but a final notice of recommendation is not sent/given to the parents by the student’s eligibility date. There again, the parent must be sent/given a Nickerson Letter entitling the student to be placed in an appropriate non-public school at public expense. (Jose P., et al. v. Thomas Sobol, et al., 1995 WL 591304 (EDNY) - Stipulation) There is nothing in the record which supports the DOE’s policy of not issuing a Nickerson Letter for residential placements. What’s more, there is nothing in the law that bars the issuance of a Nickerson Letter for a residential placement.

Jurisdiction over class action suits and consent orders (and by extension, stipulations containing injunctive relief), issued by the lower federal courts, rests with the district courts and circuit courts of appeals. (See 28 U.S.C. § 1292[a][1], Fed. R. Civ. P. 65; see, e.g., Weight Watchers Intern., Inc. v. Luigino's, Inc., 423 F.3d 137, 141-42 [2d Cir. 2005], Wilder v. Bernstein, 49 F.3d 69 [2d Cir. 1995], Pediatric Specialty Care, Inc. v. Arkansas Dept. of Human Services, 364 F.3d 925 [8th Cir. 2004], M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 279 [E.D.N.Y. 2010] and E.Z.-L. v. New York City Dep't of Educ., 763 F. Supp. 2d 584, 594 [S.D.N.Y. 2011]) No provision of the IDEA or the Education Law confers jurisdiction upon a state educational agency or a local educational agency to sit in review of or resolve disputes over injunctions or consent orders issued by a judicial tribunal. Consequently, neither the IHO, nor the SRO, have jurisdiction to resolve a dispute regarding whether the student is a member of the class in Jose P. stipulation, the extent to which the DOE may be bound or may have violated the consent order issued by a district court, or the appropriate remedy for the alleged violation of the order. (See R.K., 2011 WL 1131492, at *17 n.29 ; W.T., 716 F. Supp. 2d at 289–90 n.15, see M.S., 734 F. Supp. 2d at 279 [addressing the applicability and parents’ rights to enforce the Jose P. consent order], Levine v. Greece Cent. School Dist., 2009 WL 261470, *9 [W.D.N.Y. 2009] [noting that the Second Circuit has consistently distinguished systemic violations such as those in Handberry v. Thompson (436 F.3d 52 [2d Cir. 2006]) and Jose P. to be addressed by the federal courts, from technical questions of how to define and treat individual students' learning disabilities, which are best addressed by administrators], SRO No. 10-115, R.E., 2011 WL 924895, at *12; E.Z.-L., 763 F. Supp. 2d at 594 and Dean v. School Dist. of City of Niagara Falls, 615 F. Supp. 2d 63, 70 [W.D.N.Y. 2009]) However, it is important to note that in this case there is no dispute as to whether the student is entitled to a Nickerson, but instead, a blanket policy assertion by the DOE that it does not issue Nickerson Letters for residential placements.

Courts have repeatedly recognized the “broad discretion” that hearing officers and reviewing courts must employ under the IDEA when fashioning equitable relief, and as noted recently, courts have also “repeatedly rejected invitations to restrict the scope of remedial authority provided in Section 1415(i)(2)(C)(iii).” (See, e.g., Mr. and Mrs. A V. New York City Dep't of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 [S.D.N.Y. 2011] and Forest Grove v. T.A., 129 S.Ct. 2484 [2009])

To the extent that the Parent seeks the issuance of a Nickerson letter to prospectively fund the student’s New York State approved non-public school residential placement, I find that under the circumstances a Nickerson Letter constitutes an appropriate equitable remedy.

The Parent in this case did not unilaterally place the student in a private school or seek reimbursement for her expenses related to services that she unilaterally obtained without the consent of the DOE. 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. (See Educ. Law § 4404[1][c] and M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]) Here, the DOE did not submit any evidence into the record and accordingly failed to meet any burden of proof whatsoever. The uncontroverted testimony of the private school clinician clearly establishes that the New York State approved private school remains appropriate for the student.

There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. In fact, the DOE specifically acknowledged that the Parent was cooperative. (T-30) Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parent. For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent, that she has met her burden under Schaffer to prevail in her request for tuition reimbursement and/or direct payment.

NOW therefore, it is hereby

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent for the cost of the student’s education and maintenance tuition charges, including the costs of the related services for the student’s New York State approved residential private school, from July 1, 2012 to June 30, 2013. DATED: November 28, 2012 _____________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer EDL;mv

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

Number/Letter Title Dated For # of Pages

A Impartial Hearing Request 07/02/12 PARENT 02

B Due Process Response 07/11/12 PARENT 04

C IEP 04/03/12 PARENT 13

D Findings of Facts & Decision 12/13/11 PARENT 10 E STAC Approval Notice 09/14/12 PARENT 02