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 30, 2011

November 21, 2011

December 15, 2011

January 24, 2012

February 10, 2012 Actual Record Close Date: June 26, 2012 Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 30, 2011

Attorney — Student

For the Board of Education: — Student

Attorney — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21, 2011

Attorney — Student

Father — Student

For the Board of Education: — Student

Attorney — Student

School Psychologist (via telephone) — Student

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

Attorney — Student

Mother — Student

For the Board of Education: — Student

Attorney — Student

Special Education Teacher (via telephone) — Student

Assistant Principal (via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 24, 2012

Attorney — Student

Mother — Student

For the Board of Education: — Student

Attorney — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2012

Father — Student

Program Director-, Head Teacher (via telephone) — Student

For the Board of Education: — Student

Attorney — Student

On July 6, 2011, I was appointed the Impartial Hearing Officer (“IHO”) to conducted 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 and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act, concerning a dispute between the Parents of an (11) student attending a private school and the New York City Department of Education (“DOE”) - Home District: , Service District: , regarding the student’s special education program.

After the “resolution session” was waived by the parties on July 19, 2011, the matter proceeded to an impartial hearing on August 30, 2011, November 21, 2011, December 15, 2011, January 24, 2012 and February 10, 2012. The parties opted to submit written closing statements which were due on March 9, 2012. (T-434) A list of the witnesses appearing at the hearing and the documents received into evidence is attached to this decision.

BACKGROUND

This case began with the filing of a Due Process Complaint (“DPC”) by the Parents on or about July 5, 2011. Therein, the Parents state that the student is diagnosed as having autism. (DPC) The Committee on Special Education (“CSE”) held a review meeting on March 7, 2011 for the student’s 2011-2012 school year. (Id.) The CSE classified the student as having autism and recommended that she be placed in a special class in a district specialized school with a full time paraprofessional. (Id.) The student was also recommended for a 12-month school program with related services of occupational therapy (5 x 30 x ), physical therapy (5 x 30 x ) and therapy (5 x 30 x ) (Id.) The Parents allege that the DPC is procedurally and substantively flawed. (Id.)

On June 15, 2011, the Parents state that the DOE issued a Final Notice of Recommendation (“FNR”). (Id.) The Parents allege that the recommended DOE school is inordinately far from their home and that it is not the “Least Restrictive Environment” (“LRE”) available for the student. (Id.) The Parents served notice of their intent to unilaterally place the student at her current private school on June 17, 2011. (Id.) They visited the recommended DOE school on June 21, 2011 and found it to be “totally inappropriate” to meet the student’s needs. (Id.) Accordingly, the Parents’ requests the following relief at this impartial hearing:

1. “Prospective funding” for the entirety of the student’s 12- month school year at the private school, commencing July 1,

2011; and

2. “Transportation” for the student to and from the private school to her home.

THE DOE’S CASE

The DOE argues that it offered the student a “free and appropriate public education” (“FAPE”) through a duly constituted CSE team that used a number of evaluative documents to develop the student’s Individualized Education Program (“IEP”). (T-36) Everyone at the CSE meeting had an opportunity to participate. (Id.) The “equities” do not favor an award to the Parents in this case. (T-38) This case is a “straight forward” FAPE case. (T-39)

The DOE called (3) witnesses to testify on its behalf and submitted (18) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness participated in two of the student’s IEP meetings and observed her in the classroom prior to the March 7, 2011 meeting. (T-55 & 58-9) She is a school psychologist. (T-57) She was present at the March 7th IEP meeting with the District Representative/Special Education teacher, the student’s mother, a Parent Member, a Social Worker and the student’s private school teacher. (T-60) They reviewed reports from the student’s private school, a classroom observation, a psychoeducational evaluation and everyone had an opportunity to participate in the meeting. (T-61-2 & D-4, D-5, D-6))

The witness stated that she observed the student at her private school. (T-63) The psycho-educational evaluator could not administer the Woodcock-Johnson to the student because of her functioning level, so she administered “informal instruments.” (T-65 & D-4) The student is . (T-65) The student is able to point to most letters of the alphabet, to numbers and shapes, is able to recognize at least ten words and her counting skills are emerging. (T-66) The Parents were told that they had a right to request a new psychological evaluation. (T-68) It was determined that the student should have a limited travel time and an air-conditioned, multi-wagon and a small bus. (T-69) The IEP was amended. (T-69 & D-15)

The witness stated that both the classroom observation and the were mailed to the Parents prior to the IEP meeting. (T-70 & D-14) Another copy of the classroom observation was given to the Parents at the IEP meeting. (T-71) The student was given a full-time health paraprofessional because there were significant concerns in terms of the student’s ability to ambulate independently. (T-74) The student may also put or . (T-

75) The student is a “12-month” student because she would likely regress over the summer. (Id.) The student needs a very small, supportive classroom environment. (Id.) There was no disagreement voiced over the student having a . (T-76-7) The student’s related services were carried over from the previous year. (T-77) There were no disagreements concerning the student’s related service recommendations. (Id.)

The witness stated that “parent training” is a programmatic component of the District or 12-month school program. (T-79) She read the Parents their due process rights at the meeting. (Id.) An assistive tech device was not recommended for the student, but a “communication book” that has a series of pictures that help the student communicate was recommended for the student. (T-80) The student’s private school teacher felt that the student did not need a “ ” (“ ”) because her needs could be addressed in the classroom. (T-85) The private school does not use . (Id.)

The witness stated that the private school’s report was used as a “springboard” to draft the student’s academic goals. (T-90 & D-6) The student’s and therapy goals came from the clinicians working with her at the private school. (T-91-3 & D-6) There were no disagreements voiced concerning the student’s goals. (T-94) The student’s physical therapy and health paraprofessional goals were discussed and written at the meeting. (T-94-7) They ruled out a 10-month program, a setting, an setting and even a setting without a for the student. (T-97) The student was given alternate assessments. (Id.)

On cross examination, the witness testified that they did not actually offer a placement to the student at the March 7th IEP meeting. (T-101-2) The March 7th IEP was to be implemented on or about July 1st, the beginning of the 12-month school year. (T102-3) The special education teacher at the IEP meeting is not currently teaching in a classroom. (T-103) The Parents did not provide any progress reports, but did provide a medical information form. (T-104 & D-7) That form indicates that the student should have an air-conditioned bus ride and limited duration ride of no more than (45) minutes each way with a matron supervising her. (T-105) There are standardized tests of nonverbal intelligence but no such test of academic achievement to her knowledge. (T-113) The IEP was amended after March 7th to include the transportation accommodation and to check of the box for “assistive tech.” (Id.)

The witness stated that the Parents did consent for her to observe the student at the private school. (T-116) The IEP meeting was originally noticed for January 31st but it was re-scheduled because that was too early a meeting that was planning for July. (T-

117) The DOE school and the clinicians would determine whether the student would receive related services during the school day. (T-118-9) The Social Worker believed that an 8:1:1 setting was more appropriate for the student. (T-120) She observed the student in her private school classroom. (T-121) The student is , but she may use . (T-122) She has not read the regulations concerning “parent training.” (T-123-4) The student’s short term objectives were taken directly from the student’s private school report and modified. (T-128) Mainstreaming was not discussed at the IEP meeting. (T135)

There was no substantive testimony developed during the witness’ re-direct examination. (T-137-8) There was no re-cross examination of the witness. (T-138)

The DOE’s second witness would have been the student’s DOE teacher for the 2011-2012 school year. (T-156) She is a classroom teacher for students with and has been a teacher for (31) years. (T-158) She has been a special education teacher for (26) years. (T-158-9)

The witness stated that “parent training” is available at her school about every three weeks. (T-160) On July 6, 2011, the first day of school, she was teaching a 6:1:1 class at the DOE school. (T-161) On July 11th they started using the “Unique Learning System” curriculum for “ELA and math.” (T-162) They specifically gauge the lessons based on the student’s needs or level. (T-163) For assessments they use the Brigance with different types of levels of like life skills. (Id.) They have also introduced the “ABLLS” and also use “informal and formal” assessments. (T-163-4) There are four floors at their school and her classroom is on the first floor. (T-165) There is an elevator at the school. (Id.) The students travel for art, gym, woodshop and music classes. (T165-6) One of the exits has a ramp for accessibility. (T-166) The DOE school has an occupational and physical therapy room and they also have sensory equipment. (T-166)

The witness stated that she currently has a communication book that helps the student to request items and be able to respond to and also ask questions. (T-168-9) For “ ” points are given for a child to follow a calmer scene being kind, appropriate, mature, accountable and responsible. (T-171) Recently, the students were taken to the theatre. (Id.) After a student completes “independent work time”, or during that time, she or the paraprofessional will work with the student. (T-172)

The witness stated that after reviewing the student’s IEP, she knows that the student is . (T-174) The student has some math skills but is not bathroom trained. (T174-5) They use visuals and concrete objects for most of their teaching. (T-176) The student would have been appropriately grouped in her class. (T-177) For they would have put the student on a schedule and send her to the with a paraprofessional. (Id.) would be an excellent model for the student. (T-178) She does not know if the school could provide the student with a . (T-182) No other students at her school have received a . (T-185-6) She has worked on most of the student’s goals with other students and the goals are measurable. (T-187)

The witness stated that related services were offered at her school during the summer of 2011. (T-190) If the school could not provide the student’s related services, they would give the Parents a “Related Service Authorization” (“RSA”) to receive the services through a private agency or an outside agency. (T-191)

On cross examination, the witness testified that in the summer of 2011 she had 6th and 7th grade students. (T-197) There are about (12) other classes, one class and (131) students at the school. (T-199) The Hospital is on the first floor of the building where her classroom is. (T-199-200) Her classroom does not have any windows and is on the “lower level” of the building. (T-200) She had (4) students on her roster at the first day of the summer school. (T-206) They were all boys. (T-207) There were two adults in the class. (T-209) There is one room for both “ .” (Id.) The students have lunch in the small cafeteria. (T-211) On the “play deck”, there is no equipment other than the basketball hoops. (Id.) The “ramp” is also where the garbage is stored. (Id.)

The witness stated that the student’s IEP states that she has some ability to answer questions but to what degree she would need more information to know exactly where to start with the student. (T-219) The IEP does not indicate that the student uses assistive technology. (T-220) She only knows the student’s “baseline” from the description of her academic performance on her IEP. (T-225)

On re-direct examination, the witness testified that her students do not see the individuals associated with the . (T-234-5) The floor is “circular” and the center is on the other side with doors acting as a barrier. (T-235) Occasionally, they are integrated with a school wide program. (Id.) The “boxes” are not impeding access to the school via the ramp. (T-237) Over the summer, she had a total of three students. (T-238-9)

On re-cross examination, the witness testified that they have grade at the school. (T-239) The student would have been the only in her class during the summer of 2011. (T-240-1) On re-re-direct, the witness testified that chronological grade levels are used for alternate assessments and graduation purposes. (T-242) The students were suitable peers for the student based on their grade and functioning levels. (T-244) There was no re-re-cross examination of the witness. (T-247)

The DOE’s third and final witness is the Assistant Principal at the recommended DOE school. (T-249 & 251) She stated that the school has (5) sites. (Id.) The school would have been able to provide a one-on-one health paraprofessional for the student in July of 2011. (T-252) However, she could not say whether the school would have been able to meet the student’s related services mandates. (Id.) If the services could not have been provided, an RSA letter would have been issued. (T-254)

On cross examination, the witness testified that she decides what site a student is going to attend usually depending on the population. (T-255) The have elementary sites. (Id.) There was no re-direct examination of the witness. (T-256)

THE PARENT’S CASE

The Parents argue that they are seeking prospective/direct funding for the student’s 2011-2012 school year because the DOE failed to offer a FAPE. (T-39) Subsequent to notifying the DOE of the student’s unilateral placement at the private school, the DOE issued a FNR. (T-40) The Parents objected to the student’s IEP as procedurally and substantively flawed and the CSE failed to reconvene after receiving their objection. (T-40-1) The student is non-verbal but the DOE used evaluative tools to evaluate the student that require verbal abilities. (T-41) The student’s CSE team was inappropriate. (T-42) There was no placement recommendation made for the student until June 22, 2011. (T-44) The DOE recommended school has students that are classified as having an and they would regularly interact with the student in the hallways. (T-45) It is also unlikely that the student would receive all of her mandated related services at the DOE school. (T-46)

The Parents further argue that the student has made some progress at her private school during the 2011-2012 school year and the equities weigh against the DOE because they basically shut the door on the Parents attempts to meaningfully participate in the development of the student’s IEP. (T-47) The Parents concede that the DOE’s placement offer was timely made. (T-48)

The Parents’ first witness is the student’s mother. (T-264) She stated that the student received , has , was non-verbal or has , wears “ and is still . (T-265) She holds licenses in both childhood education and disabilities for grades one through six. (T-266) The student attended an “ for three years prior to attending her current private school. (T-266) They had looked at a variety of schools, including District schools, but the student’s private school seemed the most appropriate fit. (T-267) This is the student’s 5th year at her private school. (T-268)

The witness stated that they have attended parent workshops and DIR/Floor Time training at the private school. (Id.) The student has made progress in that she is able to have meaningful back and forth conversation without words while using a or gestures and a combination of . (T-268-9) The student has learned sequencing in stories. (T-

269) The student has an IPad that she can communicate with similar to a “PECS” book. (Id.) She believes that the student would benefit from more services and daily, but believes that the student has the maximum amount on her IEP. (T-270 & D-3, D-15)

The witness stated that she attended the student’s March 7, 2011 IEP meeting. (T-272) They spoke about the student reaching her goals, whether her goals were being met and changing her services. (T-273) The DOE thought that a was appropriate for the student and she does not recall responding to that recommendation. (Id.) She believes that a 6:1:1 is the right size placement for the student or that she would need even further support. (T-274) She believes that she received a Final Notice of Recommendation (“FNR”) in June. (T-275 & D-12) She and her husband went to look at the recommended DOE placement. (T-276-7) There is multiple District placements between her home and the recommended DOE school. (T-277)

The witness stated that a social worker from the student’s private school came with her to visit the DOE school. (T-278-9) After school, the student has “ ” and “ care services” from both the “ ” and the “ ” of New York. (T-279) The DOE school has some steps and the student has . (T-280) There was an area for the that was loaded with garbage, the , there were no windows and the school caters mostly to students with and has a lot of older students. (Id.) The DOE school also did not have physical adaptive equipment and its yard is an all asphalt roof top with safe play area, no playground equipment, basketball hoops and the students were pretty much unsupervised. (T-280-1) She received a vague response when she asked if the DOE school could meet the student’s IEP mandates. (T-281) She was also told that they were not sure they could provide the student with a right away. (T-283) They saw one class that they were told the student would probably be placed in and the students were all male and all seemed physically older than the student. (Id.) All of the students in that class are verbal and none of them uses an device. (T-284)

The witness stated that she thought the DOE program was inappropriate so she wrote a letter to the agency stating that she would be happy to see another placement offer. (T-284-5) She never received a response. (T-287) She signed an enrollment contract with the student’s private school around June 22nd or June 23rd. (T-288 & P-F) Tuition at the private school is $94,750.00 for the 2011-2012 school year. (T-288-9) They pay $50.00 per month now because that is all they can pay. (T-289) They reported approximately $30,000 or $50,000 of income on either there 2010 or 2011 tax returns, but she really doesn’t know. (T-289-90 & P-M) Their gross income for 2010 was

$29,967. (T-292 & P-M)

The witness stated that they attended a parent/teacher conference towards the end of the year and the student is making progress. (T-292-3) The student learned how to use an IPad. (T-294) The student also has basic addition skills that they have been working on. (T-295) The student also finds books similar to what she is reading in schools and shows them to them at home. (T-296)

On cross examination, the witness testified that goals, academic performance and transportation were discussed at the IEP meeting. (T-297) Through “ ” and “ ”, somebody comes to the house to take care of the student Monday through Thursday, four hours each time, as “Medicaid Waiver Services.” (T-299-300) That person is “more like a . (T-300) The witness stated that she wrote the letter to the DOE after she saw the DOE school. (T-301) Later she conceded that she wrote the letter sometime before she saw the DOE school. (T-302) She visited the DOE school with her husband and the social worker from the student’s private school. (T-303)

The witness stated that she was told the DOE might have to contract out the student’s needs through the issuance of “Related Service Authorizations” (“RSA”). (T304-5) The student would not have received a from day one at the DOE school. (T-

305) The student does not have a at her private school. (Id.) She discussed her ability to pay the private school tuition with the private school staff. (Id.) She told them that she could not afford to pay that amount of money to the private school. (T-306) She does not remember what the private school said about her paying the tuition balance off if she were unsuccessful at this hearing. (T-306) The private school did tell her to seek “prospective payment.” (Id.) She was paying the private school $50.00 per month and has paid the private school in the past. (T-307) She believes that she paid the private school a $500.00 deposit. (Id.) After viewing Parents’ Exhibit “F”, she conceded that she had paid the private school a $1,000 non-refundable deposit. (T-307 & P-F)

The witness conceded that there is a $9,000 outstanding balance owed to the private school under the “payment schedule.” (T-308 & P-F) She doesn’t think the private school said anything about what would happen if she were unsuccessful at this hearing and had to pay the balance of the tuition. (T-308-9) She thinks that they were “going to cross that bridge” if that happens. (T-309) That has never happened in the past. (Id.) The student has never attended a public school in New York City but she believes that “ ” is “approved.” (T-311)

On re-direct examination, the witness testified that the student receiving an “RSA” is a concern because she would have to receive services outside of school. (T-

314) It would not be the “ ” or the “ ” job to take the student to and from her related services outside of school. (T-315) They would have to hire someone to do that. (Id.) There was no re-cross examination of the witness. (Id.)

The Parents’ second witness started the student’s private school in June of 2005. (T-323) She stated that the private school is a school for students ages (4) through (21) with in , which includes children diagnosed on the , but also those that are not so diagnosed. They use “Developmental Individual Difference Relationship” (“DIR”) based model. (T-324) She has a staff of (120) persons. (Id.) To be a head teacher at the private school you have to have a Master’s Degree, or be enrolled in a Master’s Degree program in special education. (T-325) Teacher’s assistants are required to minimally have a Bachelor’s degree but about (50%) of them are enrolled in a Master’s degree program or actually have a Master’s degree. (T-326)

The witness stated that the private school has related services of therapy, therapy, therapy, music therapist, social workers and psychologists. (T-327) They also have two sensory gyms. (Id.) The private school is a “vertical campus”, over (5) floors tall with (2) elevators, (14) classrooms, (3) music therapy rooms, an art room, a middle school size gym, therapist’s office and a rooftop playground. (T-328)

The witness stated that the private school has a four-week training program for families about DIR Floor Time. (T-330) They also do training on , , , and programs and really anything that is relevant to the students. (T-330) Each classroom has an FM Unit and video cameras which videotape the students on a 24-hour stream. (T-335) They also have IPads, laptops, Dyno-voxes and Tangos. (Id.)

The witness stated that they discourage the use of elevators at the private school. (T-336) The parents must submit an application and then they conduct a “functional emotional assessment” with the family and the student. (T-337) Progress reports are conducted in December and there is a meeting with the parents to discuss if the private school will continue to be an appropriate placement for the student the next year. (T-337-

8) They individualize the program to meet the student’s needs. (T-338) Progress reports are conducted twice a year. (Id.) All of the students at the private school are special education students and their IEPs are used as a guide. (T-339) However, they devise their own plans. (Id.) The private school is a “12-month” school. (T-341) The students receive (30) hours of instruction per week because on Friday afternoon there is professional development for all of the staff. (T-342) The staff also receives four days of training in September before the students start. (T-343) Every Tuesday there are team meetings and every Wednesday after the students leave they do a case conference on a different student. (T-343-4)

The witness stated that they do not use aversive techniques or behaviors at the private school. (T-344) Many of the classrooms use “snack stores” and DIR is the overriding curriculum or methodology that is used. (T-345) They use “Theater for Literacy”, “Reading from A to Z”, “Reading Mastery”, “Lindammod-Bell Seeing Stars”, “Talkies”, “visualizing and verbalizing”, “Everyday Math”, “Growing with Math” and “Hands-On Center for Science” as curriculums. (T-346) There are two educational supervisors who are overseeing the (14) classrooms. (T-347) They always look to make sure that there is a peer group in the classroom. (T-348) For the 12-month program from July 2011 to June of 2012, the tuition is $94, 750. (T-349 & P-F)

The witness stated that the school has a policy and/or practice with regard to “Connors” funding that states if the the parents should not be successful in their prospective funding request, they are required and expected to pay the tuition. (T-351) The school accepts students whose parents are not able to pay the money upfront because there is a federal decision that says that is a positive thing to do. (T-351-2) If the parents take a DOE placement prior to the school year and inform the private school in writing, they are released from their contract minus the non-refundable portion of their deposit. (T-352-3) They send a social worker from the private school to visit the recommended DOE school with the parents because it is very difficult for the parents to ask the question that they want to ask. (T-353) It’s also important for the social worker to know what program the student might have to transition to. (T-353-4)

The witness stated that the student has attended the private school since September of 2007. (T-360) The student has progressed in that she is more persistent and uses communication in a much more effective way. (T-363)

On cross examination, the witness conceded that she does not have a teaching certificate. (T-365) The student’s family utilizes the private school social worker and the student uses the elevator at the private school. (T-365-6) The Parents have only paid a $1,000 deposit to the private school thus far and she has not discussed with them how they will be able to pay off the balance of the student’s tuition if they are not successful at this proceeding. (T-366-7) If the Parents are unsuccessful, there is a clause in the contract that says a new payment schedule will be issued. (T-367) There was an overpayment from another year that is going to be issued back to the Parents and that the Parents will then send back to them for the $9,000 balance of the deposit that is still due. (T-367-8) The DOE paid for the student’s entire prior year and the Parents are due back their deposit. (Id.) That was for the 2009-2010 school year, not the 2010-2011 school year. (T-369) There was no consequence to the Parents for not paying the $9,000 deposit balances as of August 12, 2011 because they knew that a “settlement” was coming through. (T-370)

The witness stated that the student did not receive any grants of financial assistance or scholarships. (T-371) The Parents could work out a payment plan with the private school to pay off the balance of the student’s tuition thereat. (T-372) The student does not have a health paraprofessional at thee private school. (Id.)

On re-direct testimony, the witness testified that the student does not need a to ambulate throughout the private school safely. (T-373) However, the student does require one-on-one support. (T-374) The student’s is being met by the classroom staff. (T-374-5) On re-cross examination, the witness testified that that the elevator at the private school does go up to the roof. (T-376)

The Parents’ third and final witness is the student’s head teacher. (T-377) She has been working with children with special needs for about (10) years. (T-380) For the 2011-2012 school year, she has (8) students in her class. (T-382) There are (5) adults in the class, including her. (T-383) They use the DIR methodology. (T-385) There are two educational supervisors at the private school with weekly supervision meetings held and classroom visits about (4) times per week. (Id.)

The witness stated that she does not feel comfortable putting a grade level on her students because their abilities are so varied. (T-388) She individualizes the students’ program. (Id.) About (30%) to (40%) of their day is spent in small groups of from (2) to

(5) peers. (T-389) Almost all of the students in the class are and those who are not use communication books or devices. (T-390) She was with the student (5) years ago as an “assistant.” (T-391)

The witness stated that she participated in the student’s March, 2011 IEP meeting. (Id.) She remembers that there was a discussion of the student’s December report. (Id.) The student made progress towards the goals and objectives on her December 2010 progress report during December 2010 to June of 2011. (T-392) The student has an “incredible” sight word vocabulary. (T-393) She has of her math and DIR goals. (Id.) They are working on the student’s academic areas and peer interactions. (T-395) The student’s IEP is used as a “guideline.” (Id.) She relies more on observations of the student’s current functioning to develop her goals. (T-396)

The witness stated that she developed a report for the student in December of 2011 that all of her related service providers contributed to. (T-397) The student receives her related services at the private school. (Id.) She sees the related services providers every day. (T-398) For the majority of the day, the student takes the elevator to get around the school. (T-400) All of the students take the elevator which is a great time for them to socially interact. (T-401) The student is but they have her on schedule. (T-402)

The witness stated that she does not use any sort of technology in her classroom. (T-403-4) She does not have a “smart board”, but does have a computer and an “FM Unit.” (T-404) The student has made progress academically. (T-404-5) The student has also made significant progress in her . (T-405) The student receives “music therapy” because she loves music. (T-406) She participates in a cooking group with her because it is motivating for her and she loves food. (T-408) “Community walks” with the students are done on one-on-one basis. (T-409)

On cross examination, the witness testified that she is not certified to teach special education. (T-411) Her class has an “ ” ratio. (Id.) One of the students has a one-toone assigned for “ . (T-412) The related service providers “push in.” (T-413) The student gets “pulled out” for academics. (T-414) She does not believe the student has the “ ” to tell them when she has to go to the bathroom. (T-417-8) The bathroom is not located in the classroom. (T-418) They do not use at the private school. (T-422) Occasionally they take data at the private school. (T-423) One of the students does not attend the community walks because they . (T-424)

The witness stated that she is not certified in DIR. (Id.) The student is probable about a pre-k level in math and is working on simple addition just using manipulatives. (T-424-5) It is difficult to grade the student in reading because she is . (T-425) To take the “TOWER” test, the student had to take many breaks. (T-426 & P-N) The student can read way more than (100) words and is a fluent reader. (T-427) Other than the TOWER test, there are no other formal assessments administered to the student. (T-429)

On re-direct examination, the witness testified that the student needs one-to-one support to stay focused and to learn. (T-430) It takes about one month for the private school to write a progress report. (T-431) There was no re-cross examination of the witness. (T-433)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Parents herein request “prospective funding” for the student’s attendance at the private school for the 2011-2012 “12-month” school year. (DPC) The IDEA clearly allows for “tuition reimbursement” in appropriate cases. Therefore, I first turn to the question of whether an award of “prospective funding” is possible under law.

In relevant part, Connors states:

“In a situation where a parent does not have the adequate means to finance unilateral private placement and is told by a court years later that they were right, the victory would not only be empty but meaningless. By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private non-approved school…

…the Third Circuit has more specifically recognized the relationship between meaningful access and economic means. Susquenita Sch. Dist. v.

Raelee, 96 F.3d 78 (3d Cir.1996),…’the concerns underlying

[Burlington]" supported a finding that "a school district may be required to pay for tuition and expenses associated with a pendent placement prior to the conclusion of litigation.’ Id. Specifically, the choice between leaving a child in a placement that parents feel is inappropriate and paying for a private placement they feel is appropriate is real only for parents who have the financial wherewithal to pay for alternative placement. While parents who reject a proposed IEP bear the initial expenses of a unilateral placement, the school district's financial responsibility should begin when there is an administrative or judicial decision vindicating the parent's position. The purpose of the Act, which is to ensure that every child receive a "free and appropriate education" is not advanced by requiring parents, who have succeeded in obtaining a ruling that a proposed IEP is inadequate, to front the funds for continued private education….As a result, once the Burlington prerequisites relative to a nonapproved private school are met, and a parent shows that his or her financial circumstances6 eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately.” (at pp. 804-806)

The State Review Officer has rejected Connor in Decision 04-037 and denied a request for prospective tuition reimbursement as follows:

“…it is well settled that parents who reject a school district's IEP and choose to unilaterally place their child at a private school without consent or referral by the local educational agency do so at their own financial risk

(Burlington v. Dep't. of Educ., 471 U.S. 359, 373-74 [1985]). It is also settled that monetary damages are not available under the IDEA (Taylor v.

Vt. Dep't. of Educ., 313 F.3d 768, 786 n.14 [2d Cir. 2002]; Polera v. Bd.

of Educ., 288 F.3d 478, 486 [2d Cir. 2002]). Nevertheless, inherent in the courts' power under the IDEA to "grant such relief as the court determines is appropriate" (20 U.S.C. § 1415[i][2][B][iii]; Burlington, 471 U.S. at

374), the IDEA does allow that "a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a [FAPE]

available to the child in a timely manner prior to that enrollment" and the private placement is appropriate (20 U.S.C. 1412[a][10][C][ii][emphasis added]; 34 C.F.R. § 300.403[c]; see generally Burlington, 471 U.S.

359)….In other words, actual funds may be awarded to a parent only where a parent obtains and pays for special education services to which it is ultimately determined the child was entitled (A.A. v. Bd. of Educ., 196

F. Supp.2d 259, 264 [E.D.N.Y. 2002]; see also Straube v. Fla. Union Free Sch. Dist., 801 F. Supp. 1164, 1182 [S.D.N.Y. 1992]).

…In Connors, the court dismissed the parents' claim for tuition and in dicta discussed the concept of prospective tuition payment related to facts not before it….As noted, when FAPE and unilateral parental placements are at issue, an order by a hearing officer or a State Review Officer for a district to pay tuition costs at an unapproved placement is permissible only as an equitable remedy to reimburse parents once they have obtained and paid for appropriate services. (20 U.S.C. 1412[a][10][C][ii]; 34 C.F.R. §

300.403[c]; see generally Burlington, 471 U.S. 359; A.A. v. Bd. of Educ., 196 F. Supp.2d 259).

The decisions of the State Review Officer (“SRO”) do not establish binding precedent. 8 NYCRR § 279.12 - Decision of State Review Officer: states as follows:

“(a) The decision of the State Review Officer shall be based solely upon the record before the State Review Officer and shall be final, unless an aggrieved party seeks judicial review. The decision of the State Review Officer shall be binding upon the parties and the State Education Department with respect to the provision of special education to the student with a disability involved, but shall not constitute binding precedent in any judicial action or proceeding or administrative appeal in any forum whatsoever.” (emphasis added)

Where the Second Circuit Court of Appeals has not ruled on an issue ruled on by the District Courts, judicial precedent does not displace a conflicting construction on this issue at an impartial hearing or upon state review of the same. (See SRO 05-125, citing Nat'l Cable & Telecommunications Ass'n v. Brand X Internet Svcs., 125 S.Ct. 2688, 2700, - U.S. - (2005)). However, in Board of Educ. of Pawling Central School Dist. v. Schutz, 290 F.3d 476C.A.2 (N.Y.) May 13, 2002, the 2nd Circuit held stated:

“Although parents who “unilaterally change their child's placement during the pendency of [the above] review proceedings, without the consent of state or local school officials, do so at their own financial risk,” Sch.

Comm. of Town of Burlington v. Dep't of Educ., 471 U.S. 359, 373-74,

105 S.Ct. 1996, 85 L.Ed.2d 385 (1985), if ultimately successful in the review proceedings, they are permitted to seek retroactive recovery of past tuition expenses. Id. at 372, 105 S.Ct. 1996. Furthermore, during the pendency of the due process review proceedings, parents are entitled to have the child “stay put” in his or her “current educational placement.” 20 U.S.C. § 1415(j) FN3; Honig, 484 U.S. at 323, 325, 108 S.Ct. 592 (finding that in “[t]he language of [the stay put provision, Congress]

unequivocally,” intended to “strip schools of the unilateral authority they had traditionally employed” *482 and that the provision “means what it says”).” (emphasis added)

The Northern District Court of New York (“N.D.N.Y.”) has endorsed prospective tuition reimbursement and the Second Circuit Court of Appeal has not overruled the same, holding that during the “pendency” of the due process review the Parent may receive reimbursement. What’s more, the decision of the State Review Officer above statutorily does not set a precedent in this matter. Accordingly, I find that the Parents may receive prospective tuition reimbursement if the standard set by Burlington and Carter are satisfied.

The Burlington and Carter cases set forth the standard of review for an award of “tuition reimbursement” or “prospective funding” under the IDEA. The IDEA ensures that students with disabilities are afforded a “free and appropriate public education” (“FAPE”). (See 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. (See Schaffer, 126 S.Ct. 528, 537) As such, in this case, the Parents as the parties seeking relief have the burden of persuasion to demonstrate that the student’s unilateral private school placement is appropriate.

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. (See 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) and 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. (See 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. (See 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”). (See 20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)(1))

The parents bear 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. (See 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. (See 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 parent’s 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).

Before the Burlington/Carter analysis may be conducted, the facts of this case warrant an analysis and determination of whether the Parents have standing in law to bring their claim. Parents cannot assert a claim for relief 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 herein request “direct and/or prospective funding for the student’s attendance at the private school for the 2011-2012 “12-month” school year.” (DPC) The record indicates that the student has never attended a public school and that she has been attending her current private school for the last (5) years, since 2007. (T-268, 311 & 365) The amount of tuition owed to the private school for the 2011-2012 12-month school year is $94,750.00. (T-288-9) The Parents gross income for the 2010 tax year was $29,967.00. (T292 & P-M)

The private school’s founder and Program Director testified that the Parents are responsible for the cost of the student’s tuition at the private school. (T-351) She conceded that the Parents have only paid a $1,000 deposit to the private school thus far and she that she has not discussed with them how they will be able to pay off the balance of the student’s tuition if they are not successful at this proceeding. (T-366-7) If the Parents are unsuccessful, she stated that there is a clause in the contract that says a new payment schedule will be issued. (T-367) Later she said that the Parents “could” work out a payment plan with the private school to pay off the balance of the student’s tuition. (T-372) The Program Director’s testimony, that the private school is owed money and that in the prior year it had received its tuition for the student from the DOE, reveals that it was the private school who incurred the financial burden in this case, not the student or the Parents. (T-367-8 & SRO No. 08-050) The private school is not a party in this case and is therefore not entitled to relief under the IDEA. (SRO No. 08-050)

Under the circumstances, it is hard to fathom how the private school and the Parents could reasonably believe that the Parents could ever pay the private school tuition. The student’s mother testified that the Parents are paying $50.00 per month to the private school because that is all that they can afford to pay. (T-289) At that rate, it would take the Parents approximately 158 years and to pay the student’s tuition for the 2011-2012 school year.

It is a basic tenant of contract law that an offer must be so definite as to its material terms or require such definite terms in the acceptance that the performance to be rendered by each party is reasonably certain. (See Contracts 2nd Edition, Calamari & Perillo) The contract is void if the content of the agreement is unduly uncertain. (Id.) While “indefiniteness” in a contract may be cured by the subsequent conduct of the parties or by a subsequent agreement of the parties, there is no evidence in the record that such conduct or agreement by the parties has occurred in this case. (Id.)

The student’s private school Enrollment Contract states in relevant part as follows:

The balance of the tuition will become due upon payment by the Department of Education or Student’s local Board of Education if different from the DOE. If payment is not received by June 1, 2012, a new Payment Schedule may be put into place and the remaining balance may become due immediately.

Parent(s) represent that their financial status warrants direct prospective payment of tuition by the DOE or Student’s local Board of Education if different from the DOE. Upon request and as a condition of Student’s enrollment, Parent(s) will provide the School with necessary documentation in the form of Tax Returns, W-2 Wage Statements, Social Security Income

Statements or other documents reflecting actual income and resources. On the basis of this representation, the School has agreed to enroll the Student on the basis of the Payment Schedule set out above. (emphasis added) (P-F)

The private school’s contract also states that the school “…may revoke any contract and suspend or terminate the student’s enrollment for non-payment or untimely payment” (emphasis added). (Id.) Taken as a whole, I find that the above clauses contemplate “direct prospective tuition payment by the DOE” to the private school on the basis on the Parents’ “financial status”, not because the student has been denied a FAPE as required by the IDEA. The clauses contemplate payment by the DOE and state that that a new payment schedule “may” be put into place if the Parents do not prevail at this hearing. The payment schedule, under the agreement, only refers to the private school’s down payment, not the student’s tuition for the 2011-2012 school year. (Id.)

There is no indication that the private school has taken any measures to collect the tuition by way of invoices sent to the Parents, or by threatening and/or pursuing legal action against them for the tuition owed, although it could be argued that legal action cannot be instituted until after June 1, 2012. (P-C) Indeed, both the Parents and the private school acknowledge that they have not even discussed how the Parents will be able to pay off the balance of the student’s tuition if they are not successful at this proceeding. (T-306 & 366-7) The student’s mother acknowledged that the private school told her to get “prospective payment” of the student’s tuition from the DOE. (T-306) Indeed, she stated that she discussed her ability to pay the private school tuition with the private school staff and told them that she could not afford to pay that amount of money to the private school. (T-305-6) The student’s mother also testified that she does not think the private school said anything about what would happen if she were unsuccessful at the impartial hearing and had to pay off the balance of the tuition. (T-308-9) The private school Director testified that there was no consequence to the Parents for not paying the $9,000 deposit balance as of August 12, 2011, because they knew that a “settlement” was coming through from the DOE for a previous school year. (T-370)

Under the circumstances, I find that it was not the intention of the parties to be bound by the private school Enrollment Contract. The contract really contemplates payment of the private school tuition by the DOE and not the Parents. Thus, the Parents herein are actually “straw persons” bring the instant claim on behalf of the private school, not themselves. The private school contract is ambiguous and indefinite in its terms. It has long been held that where the contents of an agreement are unduly uncertain, no contract is formed. (See Restatement, Second Contracts § 32, 1 Corbin § 95 and 1 Williston § 37) It is hard to fathom how the private school could reasonably expect the Parents to perform under their contracts. For that matter, the Parents themselves could not reasonably expect to pay the tuition cost based on their finances. (P-F & P-M)

As stated above, 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) 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)

There is no evidence in the hearing record indicating that the Parents have made any meaningful 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 real viable 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]) Under the circumstances, I must find that the Parents do not have standing to seek tuition reimbursement or prospective relief on behalf of the private school placement.

The evidence contained in the hearing record supports a finding that it was the private school, not the Parents, who incurred the financial burden associated with the student's education for the 2011-2012 school year. (See S.W., 2009 WL 857549, at *7*9, parent had no financial standing to sue for direct prospective payment to private placement where terms of enrollment contract absolved her of responsibility for paying tuition) However, the private school is not a party in this case and is, therefore, not entitled to relief under the IDEA. (Id.)

I do note; however, that 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]) ]) Where a Parent is seeking “prospective” payment for their unilateral placement, the Parent bears the burden of production and persuasion with respect to whether the Parent has the financial resources to front the tuition costs. (See Mr. & Mrs. A. v. New York City Dep’t of Educ., 2011 WL 321137 at *22 (S.D.N.Y. Feb. 1, 2011)

As previously stated, the Parents cannot assert a claim for the particular relief they have requested on behalf of a private entity that lacks standing under the IDEA to maintain a claim against the DOE 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 Parents might argue that they are 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)

In the case at bar, the DOE has does not concede that it failed to offer the student a FAPE for the 2011-2012 school year. Indeed the agency asserts that it offered the student a FAPE through a duly constituted CSE team that used a number of evaluative documents to develop the student’s IEP. (T-36) Everyone at the CSE meeting had an opportunity to participate and the “equities” do not favor an award to the Parents in this case. (T-36 & 38) This case is a “straight forward” FAPE case according to the DOE. (T-39)

The school psychologist, testifying for the DOE, said she was present at the March 7th IEP meeting with the District Representative/Special Education teacher, the student’s mother, a Parent Member, a Social Worker and the student’s private school teacher. (T-57 & 60) They reviewed reports from the student’s private school, a classroom observation, a evaluation and everyone had an opportunity to participate in the meeting. (T-61-2 & D-4, D-5, D-6)) The Parents were provided with the student’s and evaluation prior to the meeting and were told that they had the right to request a new psychological evaluation. (T-68, 70 & D-14)

The DOE recommendations are consistent with the student’s evaluation, observation and private school progress reports. (D-4, D-5, D-6, D-7 & P-N) The DOE provided the student with a one-on-one health paraprofessional, which the private school does not provide. (T-74, 252, 305 & 373-4) The DOE also recommended a “12-month” school year for the student in a District 75 setting where “parent training” is a programmatic component of the school program. (T-75, 79 & 160) The student has attended the private school for the last five years and the private school reports were used by the DOE to draft the student’s IEP goals. (T-90-1, 94-7, 128 & D-6) The recommended DOE teacher has been a special education teacher for (26) years and works also one-on-one with the students after or during their “independent work time. (T-158-9 & 172) She testified that the students in her class were suitable peers for the student based on their grade and functioning levels. (T-244)

The student’s mother conceded that the student was given the maximum amount of services on her IEP. (T-270 & D-3, D-15) She conceded that they spoke about the student reaching her goals at the IEP meeting, changing the student’s services and that she believes that a placement is the right size placement for the student, although the student would need even further support. (T-273-4) The student’s goals, academic performance and transportation were discussed at the IEP meeting and the DOE did provide the student with assistive technology and transportation to and from school. (T113 & 297)

The student’s mother conceded that she did not visit the recommended DOE school until after she wrote a letter advising of her placement of the student at the private school for another year. (T-302) The private school social worker was sent to accompany the Parents on their visit to the DOE school, ostensibly because “it is very difficult for parents to ask the question they want to ask” and that it is “important for the social worker to know what program the student might have to transition to.” (T-353-4)

As stated above, 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. (emphasis added) (See Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 (1982)) For all of the reasons stated above, I find that the DOE did comply with the procedural requirements of the IDEA in drafting the student’s IEP and that the IEP is “reasonably calculated” to enable the student to receive educational benefit. Accordingly, I further find that the DOE did offer the student a FAPE for the 2011-2012 12-month school year.

I find that the Parents are not entitled to direct and/or prospective funding of tuition at the private school for all of the reasons stated herein. (See 20 U.S.C. § 1412[a][10][C][ii], 34 C.F.R. § 300.403[c], Burlington, 471 U.S. 359; Carter, 510 U.S. 7, A.A. v. Bd. of Educ., 196 F. Supp. 2d 259 (E.D.N.Y. 2002) and SRO Nos.: 09-001, 08050, 07-032 & 04-037)

Based on the record before, I find that the DOE did offer the student a FAPE in a timely manner. Because I have determined that the DOE has met its burden of proving that it offered a FAPE to the student for the 2011-2012 12-month school year; that the Parents do not have standing to bring this claim on behalf of the private school; and that the Parents are not entitled to prospective tuition expenses, I need not reach the issue of whether or not the Parents’ private school placement is an appropriate placement. The necessary inquiry is at an end. (See SRO 04-009, citing M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142F. 3d at 134; Application of a Child with a Disability, Appeal No. 03-058)).

NOW, therefore, having found that the Parents have brought this claim on behalf of the private school and that the DOE has offered the student a FAPE for the 2011-2012 12-month school year, it is hereby

ORDERED that the Parents’ requests for “prospective funding” for the entirety of the student’s 12-month school year at the private school, commencing July 1, 2011 and for “transportation” for the student to and from the private school to her home is DENIED. Dated: July 11, 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 Ten Day Notice Letter, 6/16/11, 3 pp. B Sign in Sheet, 6/21/11, 1 p. C D Placement Referral Form, Undated, 1 p. D Letter to Parents, 6/22/11, 2 pp. E Not Admitted F Enrollment Contract, 6/22/11, 6 pp. G Affidavit of Payment, 8/11/11, 1 p. H Application for Admission, 3/6/07, 4 pp. I Teacher/Therapist Credentials, Various Dates, 17 pp. J 2011 Summer Schedule, Undated, 1 p. K Curriculum, Undated, 3 pp. L Behavior Management Policy, Undated, 1 p. M Tax Returns, 7/28/11, 28 pp. N Interdisciplinary Progress Report, 12/2011, 17 pp.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 7/5/11, 9 pp. 2 Due Process Response, 7/28/11, 4 pp. 3 IEP, 3/7/11, 16 pp. 4 Evaluation, 4/2010 and 11/2010, 9 pp. 5 Classroom Observation, 11/3/10, 3 pp. 6 Progress Report, 12/2010, 12 pp. 7 Medical Records, 11/30/10, 5 pp. 8 Annual Review Notice, 9/21/10, 1 p. 9 Notice of IEP Meeting, 12/20/10, 1 p. 10 2nd Notice of IEP Meeting, 1/19/11, 1 p. 11 Deferred Placement, 3/7/11, 1 p. 12 FNR, 6/5/11, 1 p. 13 Amended DPC Response, 8/9/11, 4 pp. 14 Contact Sheet, Various Dates, 1 p. 15 Cover Page for IEP, 3/7/11, 1 p. 16 Waiver of IEP Meeting, 4/6/11, 1 p. 17 IEP Minutes, 3/7/11, 2 pp. 18 Response to Subpoena, 9/15/11, 3 pp.