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: June 27, 2011

September 7, 2011

October 4, 2011

November 28, 2011

December 13, 2011

Record Close Date: April 13, 2012

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 27, 2011

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 7, 2011

Attorney — Student

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 4, 2011

Attorney — Student

Parents

Observer — Student

District Representative — DOE

Social Worker (via telephone) — DOE

School Psychologist (via telephone) — DOE

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

Attorney — Student

Parents

Therapist (via telephone) — Student

District Representative — DOE

Head Teacher, (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 13, 2012

Attorney — Student

Parents

Witness (via telephone) — Student

District Representative — DOE

On June 20, 2011, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Parts 200 and 201 of the Regulations of the New York State Commissioner of Education and Section 504 of the Americans with Disabilities Act (“ADA - Rehabilitation Act”), concerning a dispute between the Parents of a ( ) year old student attending a private school and the New York City - Department of Education (“DOE”) - Home District: 10, Service District: 88, regarding the student’s special education program.

With adjournments having been granted on consent and/or for good cause, the impartial hearing was held on June 27, 2011, September 7, 2011, October 4, 2011, November 28, 2011 and December 13, 2011. A list of the persons who appeared at the impartial hearing and the documents received in evidence is annexed hereto

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) made by the student’s Parents through their attorney(s), Mayerson & Associates, and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about June 20, 2011. (P-A) The DPC is carried under New York City (“NYC”) Case No. 133409.

The student in this case is ( ) years old and is classified with autism spectrum disorder. (Id.) The student is currently attending a not-for-profit special education private school that utilizes (“ ”). The Parents herein challenge the student’s Individualized Education Program (“IEP”) dated June 15, 2011 as procedurally and substantively flawed. (Id.) The Parents allege that as of the filing of the DPC, they have not been provided with an IEP or a Final Notice of Recommendation (“FNR”). (Id.) The Parents in this case seek the following relief:

(a) tuition and costs for a (12)-month placement at the student’s current private school;

(b) transportation to and from school:

(c) (15) hours per week of home and community based ( ) services, all as part of a twelve month program;

(d) compensatory education award for any and all pendency/educational services the student was entitled to but did not receive;

(e) “reimbursement” to the extent the student’s Parents have paid out money and prospective and/or direct funding for any unpaid amounts;

(f) an award of attorney fees and recovery of all related costs and disbursements should the Parents “substantially” prevail at the impartial hearing. (Id.)

A “pendency” hearing was held on June 27, 2011. The Parents’ attorney(s) argued that “pendency” in this case consisted of the Findings of Facts & Decision issued by IHO Lynn Almeleh on February 8, 2010. The DOE consented to the Parents’ pendency request. Accordingly, on July 6, 2011, the following “Order on Pendency - On Consent” was issued by the undersigned:

ORDERED on CONSENT and pursuant to the pendency provisions under the IDEA, the student shall immediately continue to receive the services provided under the decision of IHO Lynn Almeleh dated February 8, 2010, the costs of which are to be paid by the DOE upon the agency’s receipt of reasonably satisfactory proof of said services having been rendered; and it is further

ORDERED on CONSENT that the student shall be provided with his “pendency” services in the private school’s program located at its

Westchester Annex; and

ORDERED on CONSENT, that a copy of IHO Lynn Almeleh’s decision dated February 8, 2010, shall accompany this order for reference.

The matter then proceeding to a hearing on the merits concerning the Parents’ DPC allegations and request for relief. The facts which are not in dispute are that the student’s private school is a 12-month school and that there was no program or placement offered to the student by the beginning of the 12-month school term on July 1st. (T-153) The Parent did not receive an IEP or an FNR in this case, until September 28, 2011. (T248-9)

During the impartial hearing, the Parent withdrew her request for a compensatory education award for any and all pendency services the student was entitled to but did not receive. (T-155)

THE DOE’S CASE

There is no dispute concerning the student’s classification. (T-19) Neither is there a dispute concerning the student’s placement at a New York State approved nonpublic school, which is in fact the DOE recommended placement. (T-19-20, 25, 42, 44 &

46) The DOE argues that the only issue to be litigated is the appropriateness of the Parents’ request for additional outside services. (T-43) The DOE does not contest the student’s placement at the private school or that he should receive transportation to and from the school. (T-154-5)

The DOE called (3) witnesses to testify on its behalf and submitted (12) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness is a social worker who evaluated the student. (T-55) She participated in the student’s IEP meeting. (T-60-1) She did a social history update, an observation and got reports from the student’s private school. (T-61) She did not memorialize her observation in writing. (T-61) They did discuss the June 15, 2011 IEP goals at the meeting. (T-65) The Parent did not have any objection to the goals. (T-70)

The witness states that they do not put a teaching method, such as ABA, on the IEP because the school would do it. (T-72) She “believes” that the psychologist who tested the student discussed his at the meeting, . (T-74) She does not recall discussing the student receiving services outside of school, or the Parent asking for the same. (T-75)

On cross examination, the witness testified that there was no staffing ratio recommended for the student at the June 15, 2011 IEP meeting. (T-76) She was a part of deferring the case to the CBST. (Id.) She has no idea why the CSE meeting minutes have “ , District 75” crossed out. (T-77-8 & P-CC) She did not prepare an “assurance checklist” for the student but “believes” that one was prepared. (T-79-80) She “believes” the case was deferred to the CBST on July 11th. (T-81) They don’t send the IEP directly to the Parent because it is a draft that they send to the CBST. (T-82) The CBST “finalized or secured” the placement in September. (T-83)

The witness stated that no-one disputed that the student is at the June 15, 2011 IEP meeting. (T-85) They did discuss that the student has made progress utilizing and she does not recall anyone disputing that fact. (T-86) Her social history report states that the student receives therapy for (15) hours per week. (T-86 & D-3) She does not recall seeing the DOE offer SETSS hours after school on a student’s IEP, except maybe for pre-school students. (T-90) after school for the student was not discussed at the meeting. (T-91) Neither was there a discussion of extended day services at the meeting. (Id.) They did not have DOE documents at the meeting, just from the student’s private school. (T-91-2) She does not “believe” the Parent shared an SETSS progress report at the IEP meeting. (T-92)

The witness agreed that after school, the student is likely to continue to exhibit severe behaviors. (T-93) The doctor who wrote the SETSS progress report participated in the IEP meeting. (T-93) There was no re-direct examination of the witness. (T-93-4)

The DOE’s second witness also attended the student’s IEP meeting in the spring of 2011. (T-96 & 101) She reviewed the student’s evaluation and the material from the student’s private school. (T-100) She has advance studies in and students with multiple disabilities and in administration and supervision. (Id.) She is a New York State licensed school psychologist. (Id.)

The witness stated that based on the discussion they had at the IEP meeting, the student has seasonal allergies that can become intense. (T-103) They considered a small, individualized instruction setting for the student because there were some noted at the meeting. (Id.) They had testing done which sowed the student fell within the and had some difficulties communicating. (Id.) The was . (T-104) “ ” adult supervision was going to be continued and the student’s maintained. (T-104) The student’s goals were discussed at the meeting and the Parent did not express any dissatisfaction or opposition to the goals. (T-105-6) The student was ( old at the time and required . (T-107)

The witness stated that they briefly considered placing the student in a residential facility. (T-112) Residential placement would not be appropriate for the student. (T-

113) There was no request for outside at the meeting. (Id.) The student has full-time crisis “para” to assist with his . (T-114) The student’s was discussed and there was no opposition to the same. (T-115) The student’s private school assisted with the development of the BIP. (Id.) The Parent submitted an acceptance letter for the student’s private school and the private school representative strongly advocated for the student to attend the private school. (T-116) They decided to defer to the CBST so that the student could be considered for placement at his private school. (T-117)

On cross examination, the witness testified that no one disagreed that the student had made progress during 2010-2011 at the private school. (T-119) Placement is supposed to be offered within (60) days of the referral for re-evaluation and (60) days from the time of consent for initial cases. (T-120) The DOE is obligated to offer a 12month student some placement and program recommendation by July 1st. (Id.) They reviewed the student’s social history and had a scarce discussion about his receiving after school. (Id.)

The witness stated that the student’s IEP does not have any OT goals and does not recommend counseling because of the BIP. (T-124) The student had a crisis paraprofessional and a BIP, but no behavior goals were developed. (Id.) Parent training and counseling was not brought up at the IEP meeting and she did not complete an “assurance checklist.” (T-125) No one from the CBST was available at the IEP meeting. (T-126) The IEP does not have a staffing ratio because they don’t put one on when the case is referred to the CBST. (T-128)

On re-direct examination, the witness testified at an is not needed for each year, only a determination that the is still appropriate. (T-132) Her understanding is that is a part of the student private school program. (T-134) On re-cross examination, the witness acknowledged that the student’s SETSS progress reports recommends continuation of the student’s services in school and at home. (T-135-6 & D-9) She would not say that the student presents with very “severe” deficits and behavioral needs. (T-138)

The DOE’s third and final witness is the classroom supervisor for the student’s private school class. (T-159 & 161) Their program is an 8:30 to 2:30 day program. (T-162) Their entire day is based on teaching. (T-166) The student has a aide and is always in a ratio. (Id.) The student receives . (T-167) The student receives about three hours of teaching in the morning and then two hours in the afternoon, but some days he has gym or related services. (T-174) They do offer parent training but she believes it is only for Westchester families. (T-174-5)

On cross examination, the witness testified that is an appropriate approach for the student. (T-177) She had never met the student before July of 2011. (T-178) There was no re-direct examination of the witness. (Id.)

THE PARENT’S CASE

The Parents argue that as of July 1st, the student did not have an IEP or a program and/or placement recommendation. (T-45 & 52) The student is a “12-month student.” (T-23) An FNR was not issued for the student’s private school until September 28th. (T-

45) Fifteen hours a week of SETSS services are appropriate for the student. (T-45-6) The DOE “answer” admits that there was no placement recommendation. (T-53)

The Parents called (3) witnesses to testify on their behalf and submitted (34) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parents is as follows:

The Parent’s first witness works with the student at home and started to do so in

2001. (T-180) She is certified in special education, “K to 12.” (T-182 & P-N) She is an therapist for about (15) years. (T-183) There was a break in the time that she worked with the student from 2004 to 2007. (T-184) The student’s services were provided at home. (Id.) There is another therapist also on the student’s case. (Id.) She provides (6) hours a week of services and the other therapist provides (9) hours a week of services. (T-185-6)

The witness stated the student might need prompting just to request his basic needs and wants, but he is completely independent. (T-188) She believes that the student has made the most gains this year in his daily living skills. (T-189) The majority of work they do with the student is . (T-190) has been a huge challenge for the student for most of his life. (T-191) The student is ( ) years old, but his . (Id.) They deal with the mother who is home while they work with the student. (T-192)

The witness stated that the student continues to make fairly slow progress in all areas. (T-193) She believes the . (Id.) Right now, most of the data they take is done through past analysis, but they also take daily data. (T-195) She believes that the student should continue to receive the service. (T-196) She is paid $90.00 per hour. (T-

197) The student’s mother’s cooperation is 100%. (T-197-8) The student has always needed the home and school together. (T-199)

On cross examination, the witness testified that maybe two hours is spent on working with the student on . (T-200) She communicates with the other therapist via a book. (T-201) The student has been mandated for (15) hours of services ever since she started to work with him. (T-202) They also work on the at the private school. (T204)

On re-direct examination, the witness testified that the student has a history of regression if he does not receive therapy for like three to four days. (T-205) On re-cross examination, the witness testified that the student is able to relearn. (T-207) The student gets re-evaluated yearly. (T-208)

The Parent’s second witness has known the student since . (T-218) She was his supervisor at the private school and provided home SEIT services to the student for about a year. (Id.) She about the last (15) years as a practitioner either providing direct service as an ABA therapist teaching in an educational setting, as well as a home based special education itinerary teacher. (T-221) The last time she saw the student was in January or February of 2011. (T-222) Both of the student’s home providers were providing effective instruction. (T-223)

The witness stated that the student does not have speaker skills, but does have skills in using a communication device. (T-224) She believes that the student is probably on the 3rd or 4th grade level. (T-225) The student has a long history of . (T225-6) They have developed different periods of time s for the student. (T-226) It took the student several years to . (T-227) The student is able to urinate in the toilet but is still . (Id.) At this point they are getting the student into the community. (T228)

The witness stated that she attended the student’s June 15, 2011 IEP meeting. (T229-30) They discussed the student’s after school program at the meeting and were told that the Parent would probably have to go through an impartial hearing to get home based hours. (T-230) She believed that it was really important for the student to continue to receive those services for (15) hours per week. (T-231-2) The student has a long history of regression of skills. (T-233) Consistency of service between school and home was one of the major contributors to the student making ongoing progress over the years. (Id.) The student’s mother is . (T-235)

On cross examination, the witness testified that she has known the student “on and off” since he was about three years old. (T-237-8) Towards the end of 2010 and the beginning of 2011 she started to provide some home based supervision and some direct services to the student’s family at home. (T-238) She observed one of the providers work the student about six or seven times. (T-239) They mostly worked on things like . (T-241) There is a greater opportunity for the student to work on daily living schools at the private school he attends now. (T-241) There was no-redirect examination of the witness. (T-243)

The Parent’s third and final witness is the student’s mother. (T-244) She attended the student’s June 15, 2011 IEP meeting. (T-245) She did not receive an IEP, an FNR or have a placement for the student at the end of the meeting. (T-245) She mentioned at the meeting that the student had been receiving (15) hours of home services since he was (2) years old and had made some progress, but that she also wanted those services to continue. (T-246) She brought a copy of the home provider’s progress report to the meeting. (Id.) The DOE recommended District for the student, which she did not believe was appropriate. (T-247) She knew that a copy of the student’s private school acceptance letter was being forwarded with the CBST recommendation. (Id.)

The witness stated that she received an IEP after the student’s second IEP meeting on September 28, 2011, after the school year had started. (T-248) On that date, she also received an FNR. (T-249) She believes that the private school is an appropriate placement for the student. (Id.) The student has for several years, but they have improved. (T-250-1) She has learned how to . (T-252) The student is not yet fully toilet trained. (Id.) She believes that the student’s receipt of ABA at home and at school has a lot to do with his progress. (T-253) She wrote a letter to the DOE in March because the student had not yet received a date for his IEP meeting. (T-254 & P-J) She wrote another letter to the DOE when she did not receive a response to the first letter. ((T-254-5 & P-F) Then she wrote a letter to the DOE putting them on notice that she was seeking placement of the student at the private school. (T-256-7 & P-D) She filed her DPC on June 17th because the IEP meeting and she was concerned that the student would not have a program. (T-257-8) She has . (T-260)

The witness stated that she really has not discussed a residential placement for the student because she would like him to continue to attend the private school and receive services at home. (T-262) She attended the resolution meeting over the telephone. (Id.) The DOE told her that she was going to have to go to an impartial hearing. (T-263)

On cross examination, the witness testified that she and her husband went on a tour of the private school in March of 2011. (T-266) She has never had a contract with the private school. (T-268) She is not sure of how much they are doing at the private school, but the have always been in the evening. (T-269) The school and home coordinate with one another. (T-270) They have showed her how to collect data and she has attended some parent training sessions at the private school. (T-271) The student attended the private school’s branch from September 2003 until June of 2011. (Id.) There was no re-direct examination of the witness. (T-272)

During voir dire, the witness testified that the private school never asked her to sign a contract and that the student had attended the branch of the private school pursuant to a “Nickerson Letter.” (T-272-3)

The DOE’s application for a rebuttal case was denied. (T-274-80)

FINDINGS OF FACTS & DECISION

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 (2005)) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2nd Cir. 2005))

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 (2nd Cir. 2000)) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 (1982)) 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. § 300.550(b), 8 NYCRR §200.6(a)(1))

The parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos. 95-57, 94-29 & 93-34) The parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (SRO, No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 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"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (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, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-

102; Application of the Bd. of Educ., Appeal No. 04-026). 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. (Application of a Child with a Disability, Appeal No. 04-

049).

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] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 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. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

It is well settled that parents who choose to unilaterally place their child at a private school without consent or referral by the school district do so at their own financial risk. (See Carter, 510 U.S. at 15, Burlington, 471 U.S. at 373-74 and Forest Grove, 129 S. Ct. at 2496) As stated above, the United States Supreme Court in Burlington held that retroactive reimbursement of private educational expenses is appropriate as an available remedy under the IDEA. (See Burlington, 471 U.S. at pp. 370-71, Carter, 510 U.S. at 14-15, Gagliardo, 489 F.3d at 111 (2d Cir. 2007), explaining that parents who believe that their child has been denied a FAPE may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school], Diaz-Fonseca v. Commonwealth of Puerto Rico, 451 F.3d 13, 32, 40 (1st Cir. 2006), concluding that reimbursement under the IDEA allows parents to recover only actual, not anticipated, expenses for private school tuition and related expenses, Cerra, 427 F.3d at 192, noting the availability of "retroactive tuition reimbursement" under the IDEA, Muller v. Comm. on Special Educ. of East Islip, 145 F.3d 95, 106 (2d Cir. 1998), holding that compensation for "out of pocket expenses" was appropriate, Streck v. Bd. of Educ., 2009 WL 2163090, at * 2 (N.D.N.Y. July 17, 2009) and Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 299 (4th Cir. 2005))

While the IDEA provides that a court shall grant such relief that is determined to be appropriate (20 U.S.C. § 1415[i][2][C][iii], Forest Grove, 129 S. Ct. at 2488), the IDEA does not expressly provide for prospective payment of tuition costs. The IDEA does provide that “a court or a hearing officer may require the “school district” to reimburse the parents for the cost of “private school” enrollment if the court or hearing officer finds that the school district had not made a FAPE available to the child in a timely manner prior to that enrollment.” (See 20 U.S.C. § 1412[a][10][C][ii], 34 C.F.R. § 300.148[c] and SRO Nos.: 09-001, 07-032, 08-050 & 04-037)

The hearing record reflects that there is no contractual obligation between the Parents and the private school in this case. (T-268 & 272-3) The Parent testified that the student had previously attended the private school’s pursuant to a “Nickerson Letter.” (T-272-3)

There is no evidence in the hearing record indicating that the Parents have made any payments to the private school, or that the private school has ever sought payment of the student's tuition for the 2011-2012 school year from the Parents, or that it has any intention of doing so. (See S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *8-*9 (S.D.N.Y. March 30, 2009]) Because the hearing record demonstrates that the Parents have not paid any tuition or incurred out-of-pocket expenses, under the circumstances I must find that the Parents do not have standing to seek tuition reimbursement or retrospective relief on behalf of the private placement. However, such a finding is rendered moot by the DOE’s agreement to place the student at the New York State approved private school for the 2011-2012 school year. (T-19-20, 25, 42, 44 & 46)

The United States Court of Appeals for the Second Circuit has determined that under the pendency doctrine, school districts may be required to directly fund pendency placements (Bd. of Educ. v. Schutz, 290 F.3d 476, 482-84 [2d Cir. 2002] and Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d195, 200-01 (2d Cir. 2002) and that courts have awarded “prospective payment” to afford access to compensatory education. (See, e.g., Streck v. Bd. of Educ., 2008 WL 2229141 (2d Cir. May 30, 2008) and Draper v. Atlanta Indep. Sch. System, 518 F.3d 1275, 1286 (11th Cir. 2008) Moreover, a public agency may, under certain circumstances, place a student in an approved private school, however if it does so, the placement must be a public expense and meet state standards. (See 20 U.S.C. §1412[a][10][B]) Such is the case here.

The parent cannot assert a claim for the particular relief she has requested on behalf of a private entity that lacks standing under the IDEA to maintain a claim against a school district in its own right. (See Emery, 432 F.3d at 299, Piedmont Behavioral Health Center LLC v. Stewart, 413 F.Supp. 2d 746, 755-56 (S.D. W.Va. 2006) and Malone v. Nielson, 474 F.3d 934, 937 [7th Cir. 2007]) The parent maintains that she is entitled to direct funding under Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998). However, in Connors, the Court dismissed the parents' claim for tuition and in dicta discussed the concept of “prospective” tuition payment after the Court made a finding that the school district conceded that it could not provide an appropriate education for the student and that the private placement could. (Id. at 34 F. Supp. 2d at 806)

On the one hand, in this case, the DOE has neither conceded that it failed to offer the student a FAPE for the 2011-2012 school year, nor that the Parents’ request for continuation of the student’s receipt of (15) hours per week of at home is appropriate. On the other hand, the agency does not dispute that the student’s New York State approved private school is a 12-month school and that there was no program or placement offered to the student by the beginning of the 12-month school term on July 1st. (T-120 & 153) There is also no dispute concerning the student’s “ . (T-19 & 85) Neither is there a dispute concerning the student’s placement at a New York State approved non-public school, which is in fact the DOE recommended placement. (T-1920, 25, 42, 44 & 46)

During the impartial hearing, the Parents withdrew their request for a compensatory education award for any and all pendency services the student was entitled to but did not receive. (T-155) Thus, as the DOE itself argues, the only issue to be decided herein is the appropriateness of the Parents’ request for additional (15) hours per week of outside home ABA services. (T-43) The DOE does not contest the student’s placement at the private school or that he should receive transportation to and from the school. (T-154-5)

As stated above, the DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2nd Cir. 2005))

There is ample evidence in the record that the student still requires (15) hours of at home . The social worker’s stated that they discussed the student’s progress utilizing at the IEP meeting and that no-one disputed that fact. (T-86) Her report indicated that the student was receiving (15) hours of at home per week. (T-86 & D-3) She testified that after school was not discussed at the meeting, but also stated that she did not “believe” the Parents shared the SETSS progress report with them, yet acknowledged that the doctor who wrote the report participated in the meeting. (T-75 & 91-3) She also acknowledged that the student’s severe behaviors are likely to continue after the school day ends. (T-93)

The student still and is said to be functioning at either the level, or on the 3rd to 4th grade level. (T-103 & 225) , remains an issue for the student. (T-227, 191, 252 & 269) The work on . (T-241) While the record evidences that the student has made some progress overall and in his behaviors, there is also evidence that he has a history of regression when services are not delivered. (T-86, 104, 119, 189, 193, 250-1, 253, 205, 233 & 260)

The student’s were discussed at the IEP meeting. (T-103) The ABA SETSS progress reports recommend continuation of the student’s service in school and at home. (T135-6 & D-9) The also testified that the home services should continue. (T-196 & 199) The supervisor also testified that the services were needed and added that consistency of service between school and home was one of the major contributors to the student making ongoing progress over the years. (T-231-3) The student’s mother testified that the school and coordinate with each other. (T-270) Based on the record before me, I must find that continuation of the student’s receipt of (15) hours of home based is appropriate for the student.

There is nothing in the record that sustains a finding that the Parents have not cooperated with the CSE. The student’s mother attended the IEP meeting. (T-245) She provided the CSE with a copy of the student’s provider’s report. (T-246) The Parents also served adequate “notice” under law, to the DOE, of their request for a prompt IEP meeting, an appropriate recommended placement and of their intention to place the student at the New York State approved private school. (T-254-8, P-J, P-F & P-D) Therefore, I find that equitable considerations do not bar an award on behalf of the Parents. For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parents and that they have met their burden under Schaffer to prevail in their request for reimbursement of the costs of the student’s receipt of (15) hours per week of home based ABA services at the costs of $90.00 per hour for the 2011-2012 school year. (T-197)

NOW therefore, it is hereby

ORDERED on CONSENT that the Parents shall receive a “Nickerson Letter” for the student’s placement at the New York State approved private school for the 2011-2012 school year; and it is further

ORDERED on CONSENT that the student shall receive transportation to and from the New York State approved private school for the 2011-2012 school year, the costs of which shall be paid by the DOE; and it is further

ORDERED that the student shall continue to receive (15) hours of therapy per week at the costs of $90.00 per hour for the 2011-2012 school year, the costs of which shall be paid by the DOE upon its receipt of reasonably satisfactory proof that services have been rendered; and it is further

ORDERED that the Parents’ requests for attorney fees and the recovery of all related costs and disbursements is DENIED as beyond the IHO’s authority. Dated: June 6 2012

____________________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED:dl

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 27, 2011

PARENT

A Demand for Due Process & Fax Confirmation, 6/17/11, 12 pages B Findings of Fact and Decision, 2/8/10, 17 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 7, 2011

PARENT

C Evaluation, 6/12/11, 10 pages D Letter from the Parents, 6/1/11, 4 pages E Letter from , 5/23/11, 1 page F Letter from the Parents to Regions 9 & 10, 5/11/11, 3 pages G Annual Report, 4/26/11, 12 pages H Progress Report for IEP Goals, 2010-2011, 4/1/11, 7 pages I Related Service Progress Report, 2010-2011, 4/1/11, 3 pages J Letter from the Parents to Region 2, 3/30/11, 2 pages K Progress Report - Physical Therapy, 12/20/10, 5 pages L Progress Report - , 12/10/10, 1 page M Curriculum Vitae, Undated, 6 pages N Resume for , Undated, 2 pages O Resume for , Undated, 1 page P Brochure, Undated, 6 pages Q , May 2011, 2 pages R , May 2011, 2 pages S Use of Time Out Rooms, May 2011, 2 pages T Our TEACCH Methodologies, Undated, 3 pages U Our ABA Methodologies, Undated, 3 pages V Professional Qualifications, Undated, 2 pages W District 75 Placement Office Referral Form, Undated, 1 page X E-1 Request Form, Undated, 1 page Y José P. Stipulation, 8/3/88, 35 pages Z DOE Standard Operating Procedures Manual, February 2009, 153 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 4, 2011

PARENT

AA NYC DOE FNR, 9/28/11, 1 page BB NYC DOE Meeting Minutes, 9/28/11, 2 pages CC NYC DOE Meeting Minutes, 6/15/11, 3 pages DD Educational Progress Report, 4/23/11, 4 pages

DEPARTMENT OF EDUCATION

1 Petitioner's Complaint, 6/17/11, 9 pages 2 Due Process Response, 6/24/11, 3 pages 3 Social History Updated, 6/3/11, 2 pages 4 DOE Notice of IEP Meeting, 6/10/11, 1 page 5 DOE IEP, 6/15/11, 19 pages 6 Supreme Evaluation, Psycho-Educational Evaluation, 6/12/11, 9 pages 7 , Manhattan Campus, Annual Report, 4/26/11,

3 pages 8 , Manhattan Campus, Annual Report, 2/23/10, 8 pages 9 ABA SETSS Progress Report, 2/28/10, 4 pages 10 AHRC Comprehensive Two-Hour Psychosocial Evaluation, 1/29/09, 5 pages 11 AHRC Two-Hour Comprehensive Psychological Evaluation, 8/19/08, 5 pages 12 Career assessment, February 2010, 7 pages

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 28, 2011

PARENT

EE Summer Report, 8/3/11, 3 pages FF Income Tax Return, 2010, 2 pages GG Hugh-Pennie Resume, Undated, 7 pages HH Annual Report, 4/26/11, 12 pages

DEPARTMENT OF EDUCATION

None