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: August 9, 2011

September 7, 2011

November 18, 2011

December 15, 2011

December 19, 2011

January 6, 2012

February 13, 2012

February 27, 2012

March 21, 2012 Actual Record Close Date: August 27, 2012 Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 9, 2011

Attorney — Parents

Attorney — DOE

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

Attorney — Parents

Attorney — Parents

Attorney — DOE

Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18, 2011

Attorney — Parents

Attorney — Parents

Parents

Attorney — DOE

Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 15, 2011

Attorney — Parents

Parents

Attorney — DOE

Special Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 19, 2011

Attorney — Parents

Parents

at — Parents

Attorney — DOE

Special Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 6, 2012

Attorney — Parents

Parents

Attorney — Parents

Teacher (via telephone) — Parents

Attorney — DOE

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

Attorney — Parents

Parents

Ed Coordinator (via telephone) — Parents

Occupational Therapist (via telephone) — Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 27, 2012

Attorney — Parents

Parents

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2012

Attorney — Parents

Parents

Director of Placement (via telephone) — Parents

Attorney — DOE

On June 30, 2011, 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) and Section 504 of the Rehabilitation Act, concerning a dispute involving the special education program of a attending a private school and the New York City Department of Education (“DOE”) District 03. After adjournments were granted on consent or for good cause, the impartial hearing was held on August 9, 2011, September 7, 2011, November 18, 2011, December 15, 2011, December 19, 2011, January 6, 2012, February 13, 2012, February 27, 2012 and March 21, 2012. The parties opted to submit closing Memorandums of Law which were due on April 17, 2012. (T-670) Both parties submitted there Memorandums of Law on April 18, 2012. A list of the witnesses who appeared at the impartial hearing and the documents taken into evidence is annexed to this decision.

BACKGROUND

The student in this case is said by the Parent to be classified as having “ .” (See Parent’s Due Process Complaint - “DPC”) In this case, the Parent alleges that the student’s Individualized Education Program (“IEP”) dated April 15, 2011 is procedurally and substantively flawed. (DPC) Accordingly, the Parent unilaterally placed the student a private school for the 2011-2012 school year. (Id.) The Parent seeks reimbursement and/or prospective payment for the student’s tuition and related services at the private school for the 2011-2012 school year. (Id.) The Parent also seeks “transportation” for the student’s travel to and from school and an award of “compensatory” education award for any and all pendency services the student was entitled to and did not receive. (Id.)

A motion for an Order on Pendency was filed by the Parent’s attorney(s) a hearing was held on the same on August 9, 2011. On August 12, 2011, the following “Order on Pendency - On Consent” was issued in this case:

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 Jean Marie Brescia dated June 9, 2009, 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 a copy of IHO Jean Marie

Brescia’s decision dated June 9, 2009, shall accompany this order for reference.

THE DOE’S CASE

The DOE argues that the student was offered a “free and appropriate public education” (“FAPE”) for the 2011-2012 school year, that the student’s April 15, 2011 IEP is procedurally and substantively appropriate, that it offered the student a proper placement, that the placement selected by the Parent is inappropriate and that the “equities” in this case favor the agency. (T-74-6) The agency argues that the Committee on Special Education (“CSE”) team properly classified the student with and recommended a twelve month program with a special class in a specialized school with a ratio of ( ) with related services of (“ ”) and (“ ”) Therapy. (DOE Closing Statement) The student’s classification is not disputed. (Id.) The DOE also argues that the Parent did not enter a tuition contract for the private school in evidence. (Id.)

The DOE called (2) 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 was the who testified that the CSE in this case was properly composed under law. (T-94-5 & D-1) The lack of a “Parent Member” at the IEP meeting does not invalidate the same because it was an “annual review” as opposed to an “initial review.” (T-230 & D-1) He conducted the student’s classroom observation and participated in the IEP meeting. (T-83) The CSE team reviewed and discussed numerous educational documents pertaining to the student including a report, academic and related services progress reports and his classroom observation. (T-93-4) There was no dispute concerning the student’s classification as having . (T-99)

The witness stated that all of the IEP team members agreed that the student needed a special class in a specialized school in a 12-month program. (T-100) There was a disagreement between the CSE staff and the student’s private school staff over the staffing ratio. (T-101) He believed that a staffing ratio was appropriate for the student because the major focus of his program should be to address his . (T-117 & 122) They also developed a (“ ”) for the student. (D-7) The student’s goals collaboratively by the team based upon the review of numerous reports and with the full input of the student’s private school staff. (T-109-12)

The witness stated that was necessary since the student had very and language skills. (T-110-1) was necessary to address the student’s and motor functioning, fine motor difficulties as well as his . (T-118) The private school staff was in complete agreement with the related services recommendations made at the IEP meeting. (T-104) The parent also agreed with the related services recommendation. (T-

134) The witness stated that the student’s BIP was drafted in collaboration with the student’s private school staff and their ”). (T-196 & 199-200) The Parent and everyone else agreed that the BIP appropriately addressed the student’s needs. (T-127)

The witness stated that parent training and counseling would be provided by the student’s proposed DOE placement. (T-138-9) A transition plan was not developed for the student because he believed that the enough to warrant one. (T-227) Also, no one asked for the inclusion of a transition plan. (T-235-7) He believes that a staffing ratio is appropriate for the student and that the student’s private school is too restrictive. (T-122) The student does not exhibit such that require his placement in such a restrictive placement. (Id.)

The witness conceded that during his observation, he found the therapy at the private school productive. (T-87-8 & 91) He also conceded that there was no parent member at the student’s IEP meeting and that one should have been included. (T-152-3 & 240) The witness further stated that they had not conducted any formal evaluations of the student and used a (2) year old at the IEP meeting. (T-99) The student’s private school teachers and his father disagreed with the CSE’s recommendation of a placement for the student. (T-101-3) The DOE does not have a “ program” that it can offer the student. (T-154)

The witness also conceded that the student’s IEP was composed of portions from the student’s private school reports, designed for the student’s private school ABA program. (T-106-7) The student requires a certain amount of prompting from the teacher to focus on the activity at hand. (T-113) Some of the were omitted from his IEP. (T-189) There was no “transition plan” prepared for the student. (T-209-10)

The DOE’s second and final witness is the student’s proposed DOE teacher, who is certified in special education and has (9) years of experience teaching . (T-277) Her class consisted of (6) students, aged (9) to (10), performing on a level from almost kindergarten to 2nd grade in math and between kindergarten and 1st grade in reading. (T-261-2 & 319) The students’ levels were similar in nature to the student’s levels. (T262)

The witness stated that she provides individual instructions to every student every day. (T-279) There are also many group activities and field trips. (T-274) The students are formally assessed twice a year and a token system is used to address . (T-279-80 &

298) There are parent-teacher conferences, as well as communication with the parents through a communication book and related services provided in the school. (T-303-6) She is also experienced in using ABA methodology and uses ABA techniques in -- instruction as well as some of the principles of TEACCH. (T-279)

The witness conceded that the student’s behaviors place him at risk of harming others. (T-346) She believes that she would need more information on the student’s BIP to implement the plan. (T-327-8) Her class over the summer differed from her class in September in that during the summer she primarily works on socialization as opposed to academic goals. (T-331) She uses TEACCH as a methodology and did not use ABA during the summer. (T-329-30) The maximum time of instruction for each student is one period per day. (T-332) Four of her students over the summer remained in her class in the fall and two students changed. (T-321-2)

THE PARENT’S CASE

The Parent reserved on making an opening statement. (T-76-7) In short, the Parent argues that the DOE failed to produce a procedurally and substantively appropriate IEP and placement for the student’s 2011-2012 school year, that the student’s private school placement is appropriate and that there are no equitable considerations that bar an award on behalf of the Parent. (DPC & Parent’s Closing Statement)

The Parent called (6) witnesses to testify on her behalf and submitted (40) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Director of Placement for District testified on behalf of the Parent. (T-565) She stated that there are no ABA cites in New York City. (T-577) When considering a placement, “related services” mandates are not taken into consideration. (T-582) They try to ensure that the program the student will attend in July is the same one that he will have in September so that he can have as little transitions as possible. (T-586)

The student’s father testified that the DOE “perhaps” conducted evaluations of the student “at the school.” (T-600-1) He stated that the DOE did not consider a placement for the student. (T-603-4) He wrote a letter to the DOE on June 13, 2011 advising that he not yet received an FNR and that the student would continue at his private school. (T-606 & P-I) The student is doing very well at the private school and he does not feel that the student is ready for a placement. (T-611-2) The student has progressed in his ability to sit at his desk, concentrate on task and on “safety issues.” (T612-3)

The witness stated that the tuition at the private school is $108,000 of which he has paid a deposit of $3,000. (T-616-7) He earned approximately $66,000 in 2010 and that figure has not changed annually. (T-596) He attended the student IEP meeting and the student’s private school provided the CSE with the student’s reports. (T-599 & 99-

100) He visited the proposed DOE placement and served the agency with notice of the student’s continued placement at the private school. (T-607-09 & P-F)

The Education Director of the student’s private school also testified for the Parent. (T-521) She said that the private school is a not-for-profit that uses multidisciplinary modes with primarily teaching. (T-523-3) She believes that the student needs transitional services. (T-525) The private school collects data and develops an FBA to address a student’s . (T-529) The student’s behaviors have progressed to where his BIP was successfully faded back. (T-533) The private school uses formal assessments. (T-535-6) The student continues to work on -month program. (T-536) However, the student has progressed to where he has moved to a ratio classroom. (T-

238) The witness stated that the student’s generalization is promoted by having his staff rotated. (T-541) The student has made progress on a variety of goals. (T-542)

The student’s lead teacher at his private school testified on behalf of the Parent. (T-387) Most of the student’s in her class are on an level like the student. (T-391-2) The student’s in the class range in age from ( (T-391) The student requires a lot of redirection and prompting for him to write legibly. (T-394) To update the student’s goals she uses the ABLLS assessment. (T-396) The student progressed into a teaching ratio program for the 2011-2012 school year. (T-397) At the private school the student receives (2) to (3) hours of strict instruction per day. (T-398-9)

The witness stated that the student’s instructors rotate throughout the day which helps with generalization. (T-402-3) The student receives and at the private school. (T-403) The student still requires instruction. (T-406-7) His . (T-407-8) To address his behaviors, the private school has prepared an for the student. (T-408) They collect data on the , some of which, like , have stopped since the beginning of the school year. (T-412) The student’s classroom goes into the community, his class visits a local private school to play with non-disabled students and typical students also visit the student’s class. (T-413) The student’s spoken language has progressed, but he stories. (T-416-7) The student is . (T-419)

The witness stated that she communicates daily with the student’s Parents and that she believes he is making progress. (T-422-3) She believes that the student’s behaviors have decreased because they use at the private school. (T-423) She does not believe that the student is ready to move from a ratio to a less restrictive environment. (T-479)

The student’s pathologist also testified on behalf of the Parent. (T-356-7) She said that the student’s and distractibility affect his and therapy. (T-365) Nevertheless, the student is making meaningful progress. (T-369) She uses ABA during her with the student. (T-371) She drafted and implements the student’s behavior plan, without which the student would not be able to get his work done during their sessions. (T-372-3) The student needs teaching during the day to succeed. (T-374) At the private school, the student has the opportunity to interact with typically developing students and has made progress in his , and . (T-374-6)

The student’s occupational therapist, who is also the supervisor at the private school, testified on behalf of the Parent. (T-491) She said that the private school has a sensory and fine motor room for . (T-495) The student cannot follow (4) and (5) step directives and still needs them broken down. (T-498) The student’s goals for the 20112012 school year were developed using the Health & Peabody assessments. (T-501) She takes daily notes of the student and generates three progress reports per year. (T-503) The student had made progress in his ability to follow directions, his bilateral coordination and his handwriting. (T-508) The student requires ABA therapy and someone to keep him on task. (T-510) When he does not have teaching support, the student is unable to attend and complete task in a larger group. (T-512-3)

FINDINGS OF FACTS AND 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 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 the DOE has offered the student a FAPE for the 2011-2012. As stated above, 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])

Here, the DOE concedes that the student’s CSE team was missing a “parent member.” (T-152-3, 230, 240 & D-1) 8 NYCRR § 200.3(a)(1)(viii) states:

200.3 Committee on special education and committee on preschool special education.

(a) Each board of education or board of trustees shall appoint:

(1) committees on special education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely evaluation and placement of students. The membership of each committee shall include, but not be limited to:

(viii) an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years. Such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting; (emphasis added)

It was the duty and responsibility of the CSE to ensure the Parent could effectively participate at the CSE review. SRO Decision 02-013 provides relevant analysis in this regard:

It is well settled that an IEP prepared by an invalidly composed CSE is a nullity (Application of a Child with a Disability, Appeal No. 99-27;

Application of a Child with a Disability, Appeal No. 95-8). Respondent argues that petitioner did not raise the issue of a parent member of the CSE at the hearing. I note, however, that petitioner’s attorney inquired of respondent’s witnesses whether a parent member was present.

The law requires that an additional parent member participate in the CSE meeting unless the student’s parents have affirmatively requested that the additional parent not participate (Educ. Law § 4402[b][1][a][viii]). I disagree with the hearing officer that the parent effectively waived the presence of a parent member simply on the basis of attending the meeting with an advocate, and because she failed to complain at the meetings or at the hearing. A parent must affirmatively request that the parent member not attend the meeting in order to waive the requirement, which is otherwise mandatory (8 NYCRR 200.5 [c][2][v]; Application of a Child with a Disability, Appeal No. 01-096;

Application of a Child with a Disability, Appeal No. 01-079)….There is nothing in the record to suggest that petitioner requested in writing that the parent member not attend the 2001-02 annual review….

Respondent argues that the role of the parent member was filled by the parent’s legal advocate, especially since she resided in the district and had a child with a disability. I do not find this argument persuasive, as it is the school district’s responsibility to have a properly composed CSE, including a parent member appointed by the Board of Education. Since there was no parent member of the CSE present any of the three annual review meetings, the 2001-02 IEP was not prepared by a validly composed CSE and is a nullity. I therefore do not need to discuss the other procedural and substantive issues related to the IEP.

The DOE argues that the lack of a “parent member” on the CSE team does not invalidate the student’s IEP because the IEP meeting was an “annual review” as opposed to an “initial review” and did not relate to an initial placement in a special class. (T-230, D-1 & DOE Closing Statement) I am not persuaded by the agency’s argument. I concur with the holding in SRO 02-013 and find that the student’s April 15, 2011 IEP was rendered a nullity by the absence of the “parent member.”

As also indicated above, 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) Here, the DOE conceded that it had not done any formal evaluations of the student and used a (2) year old psychological evaluation at the IEP meeting. (T-99 & D-5)

Federal and State regulations mandate that each student with a disability be reevaluated at least once every three years. (See 34 C.F.R. § 300.303[b][2] and 8 NYCRR 200.4[b][4]) The procedure for a reevaluation requires that a group that includes the CSE and other qualified professionals, as appropriate, conduct an initial review of the existing evaluation data including information provided by the student's parents, current classroom-based assessments and observations, and observations by teachers and related service providers. (See 34 C.F.R. § 300.305[a][1] and 8 NYCRR 200.4[b][5][i]) Such review may take place without a meeting. (See 8 NYCRR 200.4[b][5][i]) Based on that review, and based on input from the student's parents, the CSE must then identify what additional information, if any, is needed to determine whether the student continues to have an educational disability, the student's present levels of performance, whether the student needs special education services, or whether any additions or modifications to the special education services are needed. (See 34 C.F.R. § 300.305[a][2] and 8 NYCRR 200.4[b][5][ii]) If additional data is needed, the school district shall administer tests and obtain other evaluation materials as may be needed to produce the needed data. (See 34 C.F.R. § 300.305[c] and 8 NYCRR 200.4[b][5][iii]) Thus, the psychological evaluation used in this case was consistent with federal and State regulations. (See 34 C.F.R. §§ 300.303-305; 8 NYCRR 200.4[b]).

The student’s psychological evaluation found the student . (D-5) The student’s pre-academic skills were said to be .” (Id.) The evaluation states that the student would benefit from a and should be integrated into his educational service/program and a contingency reinforcement approach to communication development should be considered. (Id.)

The school psychologist testifying for the DOE said that the CSE team believed that a staffing ratio was appropriate for the student because the major focus of his program should be to address his . (T-117 & 122) Later he said that the are not so that they require his placement in such a restrictive placement as his current private school. (T-122) Some of the are admittedly omitted from the student’s IEP. (T-189) It was also conceded by the DOE that the student’s place him at risk of harming others. (T-346)

The student’s FBA is dated December 1, 2010 and recommends that the student remain in his current placement (the private school) within a small where he can receive instruction. (D-10) I agree. The student is said to , of property. (T-365, 407-8 & 412) The school psychologist stated that the student needs a certain amount of prompting from the teacher to focus on the activity at hand. (T-113) His lead teacher at the private school testified that the student still requires instruction. (T-406-7) His said the student needs teaching during the day to succeed. (T-374) The proposed DOE teacher conceded that the students in her class changed from the summer and fall sessions and that she did not use instruction during the summer. (T-311 & 329-30) The Director of Placement for the student’s proposed District placement testified that there are no “ ” in New York City. (T577)

Based on the student’s evaluations and the record of his behaviors, I find that the student requires more supervision and individualized instruction than the DOE’s proposed placement offers. I further find that the student requires instruction and that the DOE’s failure to offer the same in the student’s April 15, 2011 IEP denied the student a FAPE for the 2011-2012 school year. (D-1)

I nest turn to the question of whether the student’s private school placement is appropriate. Here the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

The student’s were drafted in collaboration with the student’s private school staff. (T-196 & 199-200) The private school is a not-for-profit “ school” that uses multidisciplinary modes with primarily teaching. (T-523-3) The private school collects data and develops an FBA to address students’ . (T-529) At the private school, the student is placed with similarly functioning students within a three year age range. (T-391-2) At the private school, the student receives (2) to (3) hours of strict instruction per day. (T-389-9) The student’s instructors rotate throughout the day which helps with generalization and he receives and at the private school. (T-402-3) Finally, there is ample evidence in the record that the student has progressed academically, socially and in terms of his interfering behaviors at the private school. (T-238, 369, 397, 423, 508, 533 & 611-2)

For all of the reasons stated above, I find that the student’s private school placement provides educational instruction specially designed to meet his unique needs, supported by such services as are necessary to permit him to benefit from instruction. (Gagliardo & Frank G., supra) Accordingly, I also find that the student was appropriately placed at the private school for the 2011-2012 school year.

There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. The student’s father attended the IEP meeting on April 15, 2011, the student’s private school providers and their reports were made available to the CSE and the Parent served timely “notice” of the student continued placement at the private school. (T-93-4, 101-3 & D-1) 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 and that he has met his burden under Schaffer to prevail in his request for tuition reimbursement.

NOW therefore, it is hereby

ORDERED that the Parent’s request for “reimbursement and/or prospective payment” of the student’s tuition and related services at the private school for the 2011-2012 school year is GRANTED and upon reasonably satisfactory proof of services having been rendered, the DOE shall pay the cost of the student’s tuition and receipt of related services at private school, as well as for his transportation to and from the private school for the 2011-2012 school year; and it is further

ORDERED that as an Order on Pendency was issued in this case on August 12, 2011 and the record is devoid of any basis for an award of “compensatory education” for a denial of “pendency services”, the Parent’s request in this regard is DENIED. Dated: September 17, 2012

_____________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Demand for Due Process, 6/30/11, 11 pp. B Findings of Facts and Decision, 6/9/09, 15 pp. C IEP, 4/15/11, 17 pp. D Due Process Complaint, 6/17/11, 1 p. E FNR, 6/17/11, 1 p. F Letter, 6/28/11, 2 pp/ G Special Education Report, 2010-2009, 3 pp. H Letter, 6/15/11, 2 pp. I Letter, 6/13/11, 1 p. J Annual Review Notice, 11/4/11, 1 p. K Educational Progress Report, 4/1/11, 4 pp. L Educational Progress Report, 12/1/10, 3 pp. M Clinical Team Meeting, 1/20/11, 2 pp. N Progress Update, 4/8/11, 2 pp. O Progress Update, 11/8/10, 2 pp. P OT Progress Report, 4/4/11, 2 pp. Q OT Progress Report, 12/10/10, 2 pp. R Observation Form, 12/16/10, 1 p. S Subpoenas, 8/5/11, 14 pp. T Use of time out Rooms, 5/2011, 2 pp. U , 5/2011, 2 pp. V Plan, 5/2011, 2 pp. W TEACCH Methodologies, 3 pp/ X Methodologies, 3 pp. Y District Dir., 12/2010, 3 pp. Z District Placement, 1 p. AA E-1 Form, 1 p. BB Paraprofessional Qualifications, 2 pp. CC Stipulations, 7/28/88, 69 pp. DD SOP Manuel, 2/2009, 305 pp. FF ABLLS, 6/2011, 3 pp. GG Therapy Report, 12/1/11, 3 pp. HH Therapy Report, 12/1/11, 2 pp. II Edu. Progress Report, 12/1/11, 4 pp. JJ Subpoena, 10/18/11, 1 p. KK Subpoena Response, 1/9/12, 27 pp. LL Subpoena, 8/4/11, 11 pp. MM Occupational Therapy Goals, 2011-2012, 3 pp. NN Classroom Goals, 2011/2012, 2 pp. PP District Referral Form, 4/15/11, 1 p.

DEPARTMENT OF EDUCATION

1 IEP, 4/15/11, 17 pp. 2 IEP Minutes, 4/15/11, 1 p. 3 Final Notice of Recommendation, 6/17/11, 1 p. 4 History Update, 12/9/08, 3 pp. 5 Evaluation, 12/9/08, 5 pp. 6 Classroom Observation, 12/13/10, 2 pp. 7 Functional Behavioral Assessment, 10 pp. 8 Progress Report, 12/10/10. 2 pp. 9 Progress Report, 12/1/10, 3 pp. 10 Educational Progress. Report, 12/1/10, 3 pp. 11 Due Process Complaint, 6/30/11, 9 pp. 12 Due Process Response, 7/8/11, 4 pp.