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: July 19, 2011

September 16, 2011

October 13, 2011

January 11, 2012

February 13, 2012

February 21, 2012

March 1, 2012

Record Close Date: August 2, 2012

Hearing Officer: Edgar De Leon, Esq.

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

Attorney — Student

Intern — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 16, 2011

Attorney — Student

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 13, 2011

Attorney — Student

Attorney — Student

Parents

Attorney — DOE

School at CSE (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 11, 2012

Attorney — Student

Attorney — Student

Parents

Attorney — DOE

(via telephone) — DOE

Special Ed Teacher (via telephone) — DOE

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

Attorney — Student

Parents

School Director — Student

Teacher, School — Student

School (via telephone) — Student

School Therapist (via telephone) — Student

Attorney — DOE

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

Attorney — Student

Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 1, 2012

Attorney — Student

Parents

Teacher (via telephone) — Student

Attorney — DOE

On July 11, 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), concerning a dispute between the Parent of a

(16) year old student attending a private school and the New York City Department of Education (“DOE”) - Home District: , Service District : , concerning the student’s special education program. After adjournments were granted on consent or for good cause, the impartial hearing was held on July 19, 2011, September 16, 2011, October 13, 2011, January 11, 2012, February 13, 2012, February 21, 2012 and March 1, 2012. The parties opted to submit written closing statements which were due by the close of business on March 23, 2012. (T-798-9) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student, a old classified as having “ ” who , was denied a free and appropriate public education (“FAPE”) for the 20112012 school year on procedural and substantive grounds. (See Parent’s Due Process Complaint - “DPC”). The Parent further alleges that the student requires a 12-month school year. (Id.) The Parent also states that she objects to the Committee on Special Education’s (“CSE”) Individualized Education Program (“IEP”) dated February 16, 2011. (Id.) The Parent alleges that she received a Final Notice of Recommendation (“FNR”) from the DOE on or about June 14, 2011 and that she visited the recommended DOE placement on June 17, 2011. (Id.) She notified the DOE that she was rejecting the recommended placement as inappropriate for the student in a letter dated June 23, 2011. (Id.)

At the impartial hearing, the Parent requests the following relief:

(a) reimbursement and/or prospective funding for the student’s 12-month school year at his current private school; and

(b) special education transportation to and from the student’s private school in with limited time travel; and

(c) related services of therapy, parent-training and paraprofessional; and

(d) comprehensive private evaluations at the DOE’s expense; and

(e) payment for appropriate, qualified , and/or treatment programs who can provide appropriate services, including home-based services; and

(f) other equitable additional services or relief which is necessary to make up for deprivation of services in the past; and

(g) all transportation costs, admission fees, application fees and equipment necessary to take advantage of the above services; and

(h) a finding that the CSE must reconvene to consider the results of the student’s new testing and develop a new IEP and placement for the student; and

(i) any and all other relief deemed appropriate.

At the Parent’s requests, a “pendency hearing” was held on July 19, 2011. On August 7, 2011, the following Order on Pendency 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 dated December 29, 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 decision dated December 29, 2009, shall accompany this order for reference.

ORDERED that the DOE shall pay the cost of the student’s independent comprehensive private evaluations, including but not limited to a evaluation, an evaluation, an therapy evaluation, a evaluation, an evaluation with a specialist, a evaluation, a evaluation and a evaluation.

THE DOE’S CASE

The DOE argues that the student was offered a FAPE for the 2011-2012 school year. (T-114) There is no dispute concerning the student’s classification as . (Id.) The CSE meeting was attended by the school , the student’s private school teacher, a social worker from the private school, a special education teacher and a parent member. (T-115) The student has been attending the private school since 2009. (Id.) The DOE recommended that the student be placed in a special class in a special school with paraprofessional, related services of therapy and in a 12-month school year. (T-115-6)

The DOE further argues that the Parent agreed with the CSE recommendation of a class in a special school. (T-116 & P-M) An FNR was sent to the Parent on June 14, 2011 and there was a placement available for the student on the first day of summer school. (T-116) It’s speculative as to what class the student would have been in because the Parent rejected the placement before the first day of school. (Id.)

The DOE also argues that the student’s private school is inappropriate because it does not provide him with enough structure. (T-117) The Parent wrote a letter to the DOE on June 23, 2011 rejecting the offered placement but did not give the DOE time to respond to the alleged defects. (T-117) In a letter dated June 15, 2011, the Parent gave

(5) reasons for unilaterally placing the student at the private school. (T-118 & P-S) However, her DPC raises (39) allegations against the recommended DOE placement in total. (Id.) Finally, the Parent seeks independent evaluations but she did not request these from the CSE. (Id.)

The DOE called (2) witnesses to testify on its behalf and submitted (9) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness attended the student’s IEP meeting and observed the student. (T-120) She is a school . (T-122) She has worked with the DOE since 1997. (T-123)

The witness stated that she attended the February 16, 2011 IEP meeting as the school . (T-124) Also in attendance was a New York State certified special education teacher (“K” through “12”) as the district representative, a parent member, a social worker from the student’s private school, the student’s mother and his private school teacher by telephone. (T-125) The meeting lasted about an hour. (T-125-6) Everyone at the meeting had an opportunity to participate. (T-126)

The witness stated that at the meeting, they reviewed the student’s private school report from December of 2010, the classroom observation she conducted, the evaluation from 2009 and an evaluation. (T-127) The student was classified as having . (T-128) No one disputed the student’s classification. (Id.) They recommended placement in a special class in a specialized school with a ratio, related services and a paraprofessional. (T-129) The significance of the specialized school is that it has a 12-month school year. (Id.) The student was also recommended to have and - paraprofessional for transition. (T134-5)

The witness stated that students with can have with and which they tried to account for with support throughout the school day. (T-137) therapy was not recommended for the student but she contracted out for a therapy evaluation after the meeting. (T-138) She received a therapy evaluation dated March 26, 2011. (T-139 & P-S) The evaluation did not recommend services for the student. (T-140) The Parent did not request any additional related services. (T-141) They discussed the student’s academic goals and social/emotional needs. (T-141-3)

The witness stated that the student’s present functioning level is between grade in all areas. (T-144-5) They did not draft a “Behavior Intervention Plan” (“BIP”) for the student because his behavior did not interfere with his instruction. (T-147) The Parent did not request a BIP. (T-148) She told the Parent that “parent training” is programmatic in District , meaning that it is a part of the program. (T-149) She would not say that the student has , but that he has some concerns that require support which they provided. (T-151) The goals and objectives to help the student with his daily living activities are contained within the body of other goals. (T-153)

The witness stated that the Parent did not ask for services outside of the school day. (T-156) She believes that she had all of the evaluations that were necessary to create the student’s IEP. (T-157) The Parent did not request an device for the student. (Id.) They did recommend adaptive physical education for the student. (Id.) Special education transportation was recommended for the student as an “amendment” after the meeting. (T-158)

The witness stated that she observed the student at the private school. (T-159) She does not believe that the student’s private school is an appropriate placement for the student for the 2011-2012 school year, because of the and the of . (T-163) If you look at the student’s private school schedule, there isn’t a single academic time for the entire day on Fridays. (T-169 & D-9) The student had been given the “ ” (“ ”) test. (T-172 & P-J) The student’s score in was which is a . (T-173) His score in ”, which indicates that he is in a . (Id)

On cross examination, the witness testified that she has never seen the student’s private school use . (T-174) She agreed that are a relative strength for the student. (T-175) She has done hundreds of observations of students at the private school. (T-182-3) She has done very few formal assessments of the private’s school’s students. (T-184) She is not a and has never counseled students accept during her “internship.” (T-187-8) She has not taken a specific course with relation to educating students with . (T-193) She has not done any formal observations of the student. (Id.) (Id.) She took notes during her observation of the student. (T-195) It is likely that she assessed or observed other students as she was observing this student. (T-195-6) Her observation of the student lasted approximately (30) minutes. (T-197)

The witness stated that the student answered correctly. (T-198) The people who formally tested the student were not present at the IEP meeting. (T-200) If there is a “stipulation” regarding a prior school year, in theory she does not need the Parent to sign consent for evaluations, but the private school will not allow her to observe a student within their school without a signed consent form. (T-205) She did receive consent from the student’s Parent to observe him at the private school. (T-206) The student’s teacher told her that the was supporting the student’s . (T-207) At the time of her observation, she was performing a formal evaluation of another student and was focused on that student. (T-208-9)

The witness stated that she did not sense that the student was an student, but that he does have information . (T-210-1) She did not request that a be conducted. (T-211) She had information from the student’s private school so she did not request an evaluation. (Id.) She can easily say that the majority of the private school students were recommended for a DOE program. (T-214) They did not consider a New York State funded school for the student. (T-217-8) They could not place the student at a regular private school. (T-218) She was aware that the DOE had previously placed the student in a New York State funded private school. (Id.)

The witness stated that they considered and ruled out a and an even a placement without a paraprofessional for the student. (T-219) The ratio at the student’s current private school . (T-220) The student is considered by the DOE to be month student. (T-221) They evaluator in the student’s 2009 evaluation did not do a classroom observation and her report does not indicate that she spoke with the student’s teachers. (T-224-7)

The next psycho-educational evaluation that took place after the IEP meeting of February 2011 was in June of 2011. (T-228) That evaluator did speak with the student’s teachers. (T-229 & P-U) The June 2011 evaluator indicated that the student’s . (T-231) She also gives goals for the student. (Id.) The CSE did not reconvene to incorporate the June 2011 evaluator’s assessments or goals into the student’s IEP to her knowledge. (T-232) She agrees that the student’s private school provides a environment, is and of its students. (T-233-4) The private school’s is strong in the area of for students, their functioning , in its ability to work with students with . (T-234) The private school also works . (T-235)

The witness stated that was not mandated by the student’s IEP prior to February of 2011. (T-240) She reviewed the evaluation dated June 2010 prior to the February of 2011 IEP. (T-242 & P-E) Portions of the student’s IEP were drafted before the meeting but then everything was changed and re-typed. (T-243) She maintains her own “working files” on her students. (T-244-5) The student’s mother expressed a concern at the meeting that the student needed . (T-248-9) She did not attend the student’s June or July 2010 IEP meetings. (T-249-50) In May of 2010 a request was made for the student to have a evaluation. (T-252-3 & P-G) The first time that she ever saw the student’s “ School Function Evaluation” that was performed in June of 2010 was today. (T-256) She did not make any efforts to obtain the student’s May 2010 report for the student’s February 2011 IEP meeting. (T-262)

The witness stated that she noticed that the student’s July 2010 IEP mandated that he receive . (T-298) They did not reconvene a CSE meeting when she received the evaluation she had requested after the student’s February 2011 IEP meeting. (T-301 & D-5) Despite that report, she would not describe the student as “ .” (T303 & D-5) Although she described the student as “self-stimulating” in her observation, she did not perform a “Functional Behavioral Assessment” (“FBA”) because you only do one when a student’s with instruction. (T-304)

The witness stated that the did not participate in the February 2011 IEP meeting because her evaluation dated June of 2010 was deemed sufficient. (T-307) They had current materials from the student’s private school report dated December of 2010. (Id.) She requested further testing of the student as a result of the February 2011 IEP meeting, but did not have a subsequent meeting because she did not receive the test results until after the school year had ended. (T-309) The case was designated a “special alert: Carter case”, because the Parent has a history of suing the city for tuition and unilaterally placing the student at a non-approved school. (T-310-1)

The witness stated that she told the Parent that she had the right to request independent evaluations. (T-316) She acknowledged that there are , on the student’s IEP. (T-317-8) The IEP does include “dressing goals.” (T-318) The student’s goals were never amended. (T-319) A “ paraprofessional” was also recommended for the student. (T-320) The student did not have a full time paraprofessional at his private school, but that does not make the DOE recommendation more restrictive. (T-323) “Restrictiveness” refers to the student’s access to non-disabled peers. (T-323-4) The student’s private school teacher did not state that they disagreed with the student’s District placement. (T-325)

The witness stated that she would not have recommended a “CCT” class for the student. (T-326) The majority of the recommendations she has made for students from the private school have been for placement. (T-326-7) She agrees with the DOE evaluation dated June 21, 2011 stating that the student is a student who responses when is provided and has . (T-328-9 & P-U)

On re-direct examination, the witness testified that they recommended a ratio for the student because it is a supportive ration that becomes a ration with an additional paraprofessional. (T-329) Last year at the student’s private school, the student had a ratio, which also translates to a “ ratio. (Id.) To determine a ratio, they start with the least restrictive ratio and move through the continuum in a . (T-330) The student’s 2011 report confirmed everything that they did. (T-332) The student’s standard score in dropped from his 2009 evaluation to his 2011 evaluation. (T-338)

The witness stated that she is somewhat familiar with the student’s previous private school. (Id.) It was a structured program unlike the student’s current private school which is much less structured and less focused on academics causing the change in the student’s functioning. (Id.) The student is cooperative and in no way a behavioral problem that requires a BIP. (T-340) No one requested that they conduct an FBA or that the student needed a BIP. (T-341) The Parent did not request any other kind of testing at the meeting. (T-342) Instead of creating goals for “ ”, they tend to on schoolrelated . (Id.) The student has plenty of goals in his IEP to focus on his most needs. (T-343) No one at the meeting indicated that they wanted anything else covered. (Id.) There was no substantive testimony developed during the witness’ re-cross examination. (T-344-5)

The DOE’s second and final witness would have been the student’s DOE teacher at the DOE recommended school. (T-347) She has a special education license and (8) years of experience with the population. (T-349) She teaches a class that had ( ) students on the school. (T-350) She had students similar to the student in , in that she had students at the in both areas. (T-

351) She also had students with . (T-352) They did the assessment and data collection and had , over the summer. (T-353-4)

The witness stated that in a special education class, you have to differentiate the work for the various student levels. (T-357) She provided teaching over the summer. (T-358) The classroom includes a area. (Id.) They also have individual . (T-359) For a “ system”, they use the system. (T-361) The students have lunch in the cafeteria. (Id.) If there is a student that is overwhelmed by noise, he is allowed to go to a classroom with a paraprofessional. (T-362) The assistant principal also has an area in her office where the student can go and eat. (Id.) The students also take trips into the community. (Id.)

The witness stated that they have both and services. (T-363) She could have provided the student with his academic management needs as listed on his IEP. (T-

365) They use some aspects of ABA in the classroom and repeat everything. (Id.) They also use . (T-366) They have computers, ,“ ” and . (T-366-7) They also have a book. (T-370) All of the teachers and “ ” and “ ” providers have experience with students on the . (Id.) They also have an “ coach.” (Id.) Their assistant principal has (15) years of experience with students and is very knowledgeable. (T-371) There is a separate area for therapy and they can either “push in” or “pull out” when they provide the service. (T372)

On cross examination, the witness testified that the student she had on level was about ( ) years old. (T-373-4) There were ( ) boys and ( ) girl in her class with ( ) paraprofessionals. (T-374) Two of the paraprofessionals were assigned to her classroom and one was a “ .” (T-375) None of the students she had in July of 2011 were in her class in September of 2011. (T-378) When she started in September, she “thinks” she had ( ) students in her class. (T-379) In September she had ( ) paraprofessionals. (T-380) Usually, she keeps the same class from the summer into September. (T-384)

The witness stated that the age group of her students in July of 2011 was ( ) to ( ). (Id.) In September, she had and they ranged in age from ( ). (T-384-5) There was alternative assessment and standardized testing depending on the student’s IEP. (T-385) In July of 2011 there were ( ) students in her class on alternative assessments. (T-385-6) In September of 2011, all of her students were on alternative assessments. (T-386) She believes that her program goes from ( ) years old. (T-386-7)

The witness stated that she had not reviewed the students IEP in July of 2011 because the student did not show up. (T-389) Five other students were considered for her class. (T-401) She has training in “TEACCH”, “ABA”, “Get Ready to Learn” “Differentiation of Work”, “How to Adapt Words”, “Behaviors in Classroom”, “How to Implement FBA” and “How to Do a Behavior Plan.” (T-408) Her school is a big school with ( ” classes on the floor. (T-414-5) She is not sure if there were students classified as “ ” in the school. (T-416) They have a gym, but she is not sure if they have a “ .” (T-417) She has a and so do the “ .” (Id.) There is no general education at the school. (T-418-9)

The witness stated that she first learned the student had been offered a seat in her class for July of 2011, in September. (T-421) Her assistant principal gave her the IEP and said that the student was supposed to , did not show up and that now there was going to be a “case” because the student went to a private school. (T-423) The assistant principal said that the student would have been in her class because she had an opening. (T-423-4) There is full-time “ ” at her school. (T-427) The “ ” trained her and her paraprofessionals in to the students for input. (T-429) Sometimes the will push-in. (Id.) The assistant principal supervises special education at the school. (T-

434) In July of 2011, ( ) of her students were . (Id.) “Floor Time” is when a student tells you what he needs. (T-437-8) It’s another way of doing “ .” (T-438) The students have at the school. (T-442) “TEACCH” is differentiated. (T-448) If a student is and is in , he’s going to have a . (Id.) If the student can read, instead of having math as a , for example, he’ll have (Id.)

The witness stated that there is a “ ” person trained in how to . (T-457) They have normal security guards at the school and do not use to her knowledge. (T-458) She did not have in her classroom. (Id.) When a student is “stemming”, he goes to the . (T-459)

On re-direct examination, the witness testified that the students, who were mandated to receive therapy in her class, received it. (T-461) In July of 2011, none of her students reported being bullied. (Id.) There was no re-cross examination of the witness. (Id.)

THE PARENT’S CASE

The Parent argues that the student is appropriately classified with . (T-478) For the 2011-2012 school year, the DOE failed to offer the student a FAPE. (Id.) The student has attended his private school since 2009 and it is an appropriate placement. (T-479) The student’s mother visited the proposed DOE placement and the teachers were not familiar with the student. (Id.) The DOE school site and program is insufficient and inadequate to the meet the student’s needs. (Id.) The Parent participated in the student’s February 2011 IEP meeting and was not told that she had a right to obtain independent educational evaluations. (T-480) The student has made meaningful gains while at the private school and the Parent has cooperated with the DOE. (Id.)

The Parent called (5) witnesses to testify on her behalf and submitted (26) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness is the program director of the student’s private school since July of 2005. (T-482-3) The private school is a school for students with in relating and communicating for ages ( ). (T-484-5) The goal of the school is to move the students up the . (T-485) The private school includes students diagnosed somewhere on the and not on the , and students, students with and those classified as “ .” (Id.)

The witness stated that ABA behavioral methodology looks at the manifestation of the student’s abilities and either rewards or punishes. (T-487) It does not look at where the developmental trajectory may have gone off course. (T-487-8) The DIR model has been used for about (25) years now. (T-488) At least one other school uses

DIR. (T-489)

The witness stated that the private school does parent training. (Id.) Social workers are assigned to the family. (T-490) They have parent support groups, parent training groups weekly, sibling support groups and counseling for family members individually and as a group. (Id.) They also train the parents in DIR and Floor Time, development. (T-490-1) The private school also does home visits. (T-491)

The witness stated that the average class size is ( ) students with head teacher and teaching assistants. (Id.) Their transition classrooms have additional adults. (Id.) There are ( ) classes at the private school and three of them are transition classrooms. (Id.) The private school has classes Monday through Thursday from 8:30 AM to 3:00 PM and on Fridays from 8:30 AM to 12:30 PM. (T-491-2) They provide (30) hours of instruction per week. (T-492) Friday afternoons they have professional development. (Id.) The private school offers therapy, therapy, and therapy and . (T492-3) They also have . (T-493) The lead teachers have master’s degrees in special education, or are enrolled in such a program and the teaching assistants have bachelor degrees with (45-50%) of them enrolled in a master’s program. (Id.) Everyone receives special training once they are hired. (T-494)

The witness stated that on Wednesdays they do a case conference which includes one individual child. (Id.) Personnel at the private school are trained in DIR. (T-495) Team meetings are separate from case conferences where the team of related service workers may meet weekly after the students go home to discuss each child individually. (T-496) IEPs are used as guide. (Id.) The intake process involves the family sending in an application and any other supporting documents and a “functional emotional assessment” being conducted by the private school clinical . (T-497) It is not a “point by point” criterion, but really about whether they believe their model would be able to meet the student’s individual needs to help them move up the developmental ladder. (T-499)

The witness stated that the private school is ratio although there are opportunities to be individual. (T-500) They are not the best school for students who need a lot more very intensive , who have or who have community. (Id.) The student started at the private school in January of 2010. (Id.) He presented as a student with delays in relating and communicating. (T-501) They have seen him progress up the developmental ladder. (Id.)

The witness stated that there are (8) students in the student’s class, a teacher and teacher assistants. (T-502) The student is challenged in the classroom but is also a role model. (Id.) From July 2011 to present, the student has , not as much, being less , increased his , increased his , , is more effective in the . (T-504-5) The private school does not utilize BIPs because behaviors are and once they understand what the student needs and address those needs, the . (T-506-7)

The witness stated that for the student. (T-508) However, he is . (T-509) They bring in students from and the private school students also interact with typically developing peers when they go and when they go into the community. (Id.)

The witness stated that the student is like a “ ” because he is seeking. (T-510) The student is on a . (Id.) He also has and receives an for that. (T-510-1) The private school has and a the classroom. (T-511) The classroom has a board but not a because they are for almost all of their students. (T-514) They do have that they bring into the classroom to teach functional . (T-515) Two out of the ( ) students in the student’s class are and the . (T516)

The witness stated that the providers at the private school have Master’s degrees and majority of them have finished their licensing. (T-517) of them are full time. (Id.) All of the “ ” providers at the private school but one is fully licensed. (Id.) of them are full time. (T-518) is provided by a social worker, a or a depending on the student’s needs. (Id.) Progress reports are done a year. (T-519) They use “Handwriting Without Tears”, which is a developmental model that the public schools use as well. (T-520) They take the standard curriculum and adapt it. (T-521) The literacy program at the private school is based on “Balanced Literacy”, “Readers Theatre”, “Reading from A to Z”, “Lindamood-Bell”, “Talkies”, “Seeing Stars” and “visualizing and Verbalizing.” (Id.) For math they use “Everyday Math” and “Growing with Math.” (T-522) For transitioning they use “Transitions Learning Program” for all of their students aged (15). (Id.) The student started the program in September of

2011. (Id.)

The witness stated that they look at “ ” skills as all . (T-523) They have a that gives the students the ability to and then take that knowledge out into the community. (T-524) “ facilitators” work on travel training and on being effective independent persons in the environment. (T-525) The student has opportunities to generalize within the school environment with things like and/or . (T-526) When a student is out of the program, they work with the family and set up books or descriptions of what the program is going to look like. (T-527) They will go and visit the new program with the student. (T-528) She has never met a paraprofessional. (Id.)

The witness stated that TEACCH is similar to ABA in that it is based in behavior methodology or philosophy. (T-529) It looks to change behavior and not at the developmental milestones or ladder to understand why a child is having difficulties. (T529-30) Tuition at the private school for the 12-month school year starting in July 2011 and going until June of 2012 is $94,750. (T-530) The student was allowed to attend the private school before making any tuition payments. (Id.)

On cross examination, the witness conceded that she is not a licensed special education teacher, is not “BCBA” certified and not certified to use the TEACCH methodology. (T-531) The student’s private school teacher participated in the student’s IEP meeting by telephone. (Id.) She bases her opinion of the student’s progress on observing him in the classroom, meeting with his providers and reading his progress reports. (T-532) She does not go out into the community with the student. (Id.) The student does not have a paraprofessional at the private school. (T-533) The student’s private school teacher is not certified in DIR. (T-534) They do not take formal data of the students, but they do them and the teacher does an observation of each individual student once a week. (Id.)

The witness stated that for the 2011-2012 school year, the private school did not conduct an FBA of the student. (T-535) The student received over the , but not any longer. (Id.) He does receive . (Id.) The student does not use and is not receiving at the private school. (T-536) The Parent has not paid any money towards the student’s tuition. (Id.)

On re-direct examination, the witness testified that it takes about (4) to (5) years to get certified in DIR. (T-537) You do not need to be certified in DIR to administer

DIR. (Id.) There is no DIR certification for administrators. (Id.) Whatever portions of the student’s tuition that have been paid were by the DOE under “pendency.” (T-538) There was no re-cross examination of the witness. (Id.)

The Parent’s second witness was the student’s therapist at his private school from September to December of 2011. (T-539) She received her New York State license in June of 2011. (T-543)

The witness stated that the student had . (T-545) He needed a lot of and she worked on different activities and using his vision as a tool in the environment. (T-546) She received training in DIR prior to the beginning of school and then for six weeks after school. (T-547) She also reviewed the student’s progress report from May 2011. (T-548) She did not make any changes in the student’s treatment for the 2011-2012 school year. (T-549) She looked at the student’s IEP as a guide but used his progress reports and discussions with the student’s prior therapist as a guide for her treatment. (Id.) She drafted the student’s therapy section of his December 2011 report. (Id.)

The witness stated that by December the student . (T-551) The student improved his through the obstacle course. (Id.) During “scavenger hunts” the student needed to . (T-552-3) By the end of the year he only needed support. (T-553) She saw the student a week, one time individually, time in a dyad and one time in a group. (T-554-5) The student needs “ ” sessions and has . (T-556) She through . (T-557) The student requires . (T-558) For a , the student is provided with a in the classroom, a ,a and each classroom has a . (T-559)

The witness stated that there is a on staff at the private school. (T-560-1) The student has made progress in . (T-562) She communicates with the student’s mother through the classroom teacher, permission slips that she sends home and at parent/teacher conferences. (T-563) Typically, she did not work on the student’s skills during her sessions. (Id.) They had team meeting once a week. (T-564)

On cross examination, the witness testified that the student had three different therapist for the 2011-2012 school year. (T-565-6) There was no re-direct examination of the witness. (T-568)

The Parent’s third witness is the student’s since September of 2011. (T-569) She has experience in working with children on the . (T-573) Once a week at the private school they do case presentations and on Fridays they have staff trainings. (T-574) She has received DIR training. (T-574-5) She sees the student three times a week for 30-minute sessions, two of those in a dyad and one as an individual session. (T-575) The student has . (T-577) He also has appropriately . (T-578) The student has . (Id.) He is more consistently referencing . (T-579-80)

The witness stated that she drafted the section of the student’s December 2011 progress report. (T-580) The student is more consistently . (T-581) He is also more . (T-583) The student is also . (T-586) Sometimes she will provide the student with . (T-587) She is trained in PROMPT. (T-590) The student now than when she started with him and takes . (T-591) The is to the student’s putting his . (T-592)

On cross examination, the witness testified that the student was receiving in July and August of 2011. (T-593) The transition of has been successful for the student. (T-594) She has not reviewed the student’s February 2011 IEP. (T-594-5) There was no re-direct examination of the witness. (T-595)

The Parent’s fourth witness has been the student’s teacher since September of 2010. (T-610) She has her initial teaching certification from New York City. (T-613) This is her fourth year at the student’s private school where she is now a head teacher. (T-614) She had previously worked at a public school in New Jersey in a classroom of ) year old students with . (T-615)

The witness stated that the student’s private school uses the “DIR/Floor Time method in a “ ” setting, where there is a lot of building relationships and the social aspects of being in school. (T-616) She believes that the model does benefit the student. (T-617) The student has to staff members and has himself . (T-618) His interactions with and he with them. (T-618) There are ( ) students in his class and ( ) teaching assistants until January when they received a one. (T-622) The students are starting to go into the community a lot more as part of their goals. (T-623) When they go into the community, they are with one other person. (Id.) In January of 2010, the student would and his . (T624-5) His have . (T-625)

The witness stated that they have some tools in the classroom like . (T-628-9) They also have a door which leads to an empty classroom which they call a “ space” with , tools. (T-629) Too on the can the students. (Id.) They have one general lesson plan which they modify for each student’s goals. (T-

630) The student had a schedule in July than in September. (T-631) The student is in a program at the private school for students. (Id.) The student is getting and it’s . (T-634) “ ” occurs throughout the school day. (T-635)

The witness stated that in the student has sowed an in his skills. (T-638) The student is that . (T-639) In answering “ ” he needs less support from staff and he seems more . (T-642) The student has also definitely shown with . (T-646) Social studies are a part of the private school’s programming throughout the day. (T-647) The student is able to to the , make . (T-649)

The witness stated that the student does not have a specifically assigned “ ” paraprofessional in class with him. (T-649-50) The student to . (T-651) She believes that the student is among an appropriate group of students. (T-652) The students in his class are from ( ) to almost ( ) years old. (T-653) The most important thing concerning the student’s is having the student . (T-655) The student has progressed in his needs in that he is able to do his . (T-657) His “ ” addresses his gross skills, his “ ” skills and helps him . (T-657-8) The “ ” are just another chance for the students to have , and . (T-659-61) “ ” are related to skills. (T-661)

The witness stated that she is trained in DIR/Floor Time which is a methodology that is used throughout the day at the private school. (T-663) She believes that this methodology is appropriate for the student because since she started to work with him, he is . (T-664-5) She is contact with the . (T-666) She has worked in an ABA setting before. (T-667) She does not believe that ABA would be appropriate for a student like the student for and . (T-668) She believes that DIR is most appropriate for the student. (T-671) The witness stated that a long term goal would be to have the student do an . (T-672)

The witness stated that she participated in the student’s February 2011 IEP meeting. (T-677) She remembers that a lot of goals were read that were similar to the student’s private school report goals. (T-678) She did not believe that the recommended “ratio” was appropriate. (Id.) She did not agree with recommendation. (T-679) A does not offer enough support for the student. (T-680) However, if the student had a “ ” for transition all the time, it would inhibit his confidence to be with his . (T-680-

1) She would not want the student to rely the day. (T-681) She offered an appropriate “ ” ratio for the student at the IEP meeting. (Id.) The student has been successful with that ratio at the private school. (T-682)

On cross examination, the witness testified that the private school social worker may have been with the student’s mother at the IEP meeting, but that she was at the private school on the telephone. (T-684) The goals were appropriate for the student’s 2011-2012 school year within the DIR setting/model. (T-684-5) She has not experience working with the student in another setting and has no training in TEACCH. (T-685) The discussed related service mandates for the student at the IEP meeting. (T-687) She does not remember if she agreed with the recommendations. (Id.) She also cannot remember if anyone disagreed with the related service recommendations. (T-688)

The witness stated that at the private school there is a written record of what they are accomplishing, but it is not on a graph or a specific chart. (T-688-9) She is a certified special education teacher. (T-689) For , the student receives therapy in a group. (T-689-90) The student is not receiving at the private school and they do not have a plan for him. (T-690) They have seen a in the student’s . (T-

691) The student is with his and a “ paraprofessional” might hold him back from those . (T-692) She has never seen the student in a public school setting. (Id.) The student does not receive any “ ” and is a . (T-692-3)

The witness stated that the student participates in “ ” other students. (T-694) The ( ) students in his class are classified on the . (T-694) The student’s levels in are from grade. (T-695) There are ( ) students in his class. (Id.) There is head teacher and teaching assistants. (T-696) The teachers are special education certified. (T-697) The student is able to work in groups of or when it is around the . (T-698) She did not agree with a placement for the student and believes she recommended an model. (T-701-2) The IEP team responded by offering a paraprofessional for the student to transition to public school. (T-702) At the time of the IEP meeting, the student was probably functioning around the grade level. (T-703)

On re-direct examination, the witness testified that the teaching assistants are responsible for keeping track of what goals the students are working on when they are outside of the classroom by keeping “antidotes.” (T-705) The has told her that they are really working on the student’s , his and his being able to in other ways. (T-707-8) If the student is showing , they give him time to process what is going on, talk about it and figure out what the most appropriate way of addressing it. (T-711) There was no re-cross examination of the witness. (T-712)

The Parent’s fifth and final witness is the student’s mother. (T-714) She stays at home because her “ ” is and is receiving Services at home. (T-715) She was in May of 2009 and is not . (Id.)

The witness stated that the student has attended the private school since 2009/2010. (T-716) Prior to his current private school, the student had attended another private school. (Id.) The student has previously attended a public school. (Id.) He was diagnosed with when he was ( ) years old. (Id.) The student only attended a public school for a couple of months. (T-717) While at the public school, the student was . (T-717-8) She was told that she would have to put the student in another school. (T-718) The student then stayed at home for about three months before he began to attend his previous private school. (Id.) His previous private school was from age ( ) to ( ) and the student was ( ) years old. (Id.) The student school . (T-719)

The witness stated that the DOE could not find her a school and so she found the student’s current private school on the internet. (T-720) She then signed a paper and asked for an impartial hearing. (Id.) The “judge” decided that the student should stay at the private school. (T-721) The student started at his current private school in January of 2010. (Id.) She does not remember the last time that the student was evaluated by the

DOE. (Id.)

The witness stated that she attended the student’s February 2011 IEP meeting. (Id.) She received the IEP at the end of the meeting. (T-723 & P-L) The DOE did not share any reports with her at the IEP meeting. (T-723) The only document that she saw at the meeting was the IEP that was already typed. (T-725 & 728-9) The DOE did not discuss the student’s academic performance or learning characteristics with her. (T-729) The meeting lasted maybe (30) to (45) minutes. (T-730) They did not discuss the student’s . (Id.) They also did not discuss a intervention plan. (T-730-1) The student has some like and then , . (T-731) She told the DOE about these at the meeting. (T-734) She also asked for the student to therapy. (Id.) The DOE sent the student for an evaluation in March, April or May. (T-735)

The witness stated that the student also on the . (T-736) The DOE did not discuss the student’s annual goals and short-term objectives. (T-737) They did go over the student’s related services at the meeting. (Id.) The DOE did not make a recommendation that the student attend the private school. (T-738-9) She does not believe that she was understood very well at the meeting. (T-740) She said at the meeting that a ” was not good for the student and that he needed an “ .” (T-741) They did not explain to her what a paraprofessional is. (T-741-2) Everything was already typed on the IEP. (T-742) She sent the student’s private school report to the DOE prior to the meeting because they asked her to do so. (T-745) The DOE incorporated the student’s private school report in to the IEP. (T-746) The DOE did not have any other reports with them at the time of the meeting. (T-746-7)

The witness stated that the student does not have a paraprofessional at the private school and does not need one. (T-747) The student also does not need a paraprofessional to help him transition . (T-748) However, the student cannot integrate into the community with support because he needs someone with him all of the time. (T-748-9) training was not discussed at the meeting. (T-749)

The witness stated that the student will not be able to with to support. (T-750) He needs someone . (Id.) There was no discussion at the IEP meeting about for the student. (Id.) They did not discuss a at the meeting. (T-751) She received a copy of the “minutes” at the end of the meeting. (Id.) She was shown the “teacher observation” but did not agree with it. (T-752) She asked for an evaluation but they never discussed her parental rights with her. (Id.) They never discussed her receiving a copy of the student’s records or her right to appeal. (T-753) They also never discussed “parent training” with her. (Id.)

The witness stated that “ ” is an organization that works with “special needs.” (T-754) She does not know what the acronym stands for. (Id.) She also does not know what a “paraprofessional” means and did not ask what it meant at the meeting. (T-755-6) She received the placement notice around June 16, 2011. (T-756-7 & P-R) She wrote a letter to the DOE on June 15, 2011. (T-757 & P-S) She also got a note from the DOE school proving that she visited the recommended school. (T-758 & P-T) She met some teachers and saw some classrooms during her visit. (T-760) The first classroom had ) or ) students, was on the computer and there was . (T-760) The students looked . (T-761) She did not bring the IEP with her to the DOE school. (Id.) She saw ( ) students in at the DOE school. (T-762) She did not think that the DOE school was appropriate for the student. (T-763) The cafeteria would be for the student. (Id.) There was no “ ” at the DOE school, but they showed her where they do the and . (Id.) The students looked , but they were . (T-764)

The witness stated that she notified the DOE that the student was at the private school since they could not find an appropriate placement for him. (T-766 & P-V) She signed a contract with the private school and understands the financial obligation, but she . (T-766-7) If she loses this hearing she will have to go to a the private school because she is . (T-767) She has not met with the DOE for an IEP after February of 2011. (T-768)

The witness stated that the student is a . (Id.) He can . (T-769) The student has . (Id.) He . (T-770) She sees a different child since the student has been at his current private school. (T-771) The student . (Id.) He . (T-773) She communicates with the . (Id.) The private school has “parent training.” (Id.) The student’s siblings participate in trainings at the private school. (T775)

On cross examination, the witness testified that the February 2011 IEP meeting was not her first IEP meeting. (T-776) At previous IEP meetings she had been made aware of her rights. (T-777) She did not complain about the team members. (Id.) The social worker was able to participate at the IEP meeting but she did not participate. (T-

778) The private school social worker was with her because it’s the private school’s policy. (Id.) She requested special education transportation at the meeting. (Id.) The IEP team responded by giving her form. (T-778-9) She did not ask them what a “paraprofessional” was. (T-779) They did not send her a copy of the evaluation and she has never seen it. (T-780-2 & D-5) The goals were discussed with the private school teacher at the meeting, but not with her. (T-783) She told the IEP team that the student was going to “ ” for after school. (T-785) Her letter dated June 15, 2011 states that she would be placing the student at the private school and would seek payment for the same. (T-785-6 & P-S)

The witness stated that the first classroom she saw at the DOE school had students who looked ( years old. (T-788) The first classroom teacher said that she would be the student’s teacher. (T-789) She said the student’s in her class are . (Id.) There was only one teacher in the class. (T-791) She spent about (10) minutes in the classroom. (T-762) She saw a “ ” and they were having a , but she did not see . (T-792-3) She saw the children in the on the when she was coming into the school. (T-793) She asked that the student be evaluated for . (T-794) She does not know what is. (Id.) She did not ask about “parent training” at the IEP meeting. (T-795) There was no re-direct examination of the witness. (T-796)

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 Parent has standing to bring the claim in this case. The Parent herein request “reimbursement and/or prospective funding for the student’s 12-month school year” (2011-2012) at his current private school. (P-A) The tuition owed to the private school for the 2011-2012 school year is $94,750. (T-530) The Parent testified that she signed the private school contract and understands the financial obligation, but she is . (T-766-7) If she loses this hearing she will have to . (T-767) The Parent has been unemployed since May of 2009. (T-715) How she would qualify for a . There is also no evidence in the record that the Parent has made any payments to the private school for the 2011-2012 school year. Under the circumstances, it is hard to fathom how the private school and the Parent could believe that she could perform under the contract and pay the private school tuition.

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 Parent has made any payments to the private school, or that the private school has ever sought payment of the student's tuition for the 2011-2012 school year from the Parent, or that it has any intention of doing so. (See S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *8-*9 (S.D.N.Y. March 30, 2009]) The student has attended the private school since the 2009-2010 school year. (T-716) At a previous impartial hearing, the Parent was awarded payment for the student’s attendance at the private school in January of 2010. (T-721) The hearing record clearly demonstrates that the Parent has not paid any tuition or incurred out-of-pocket expenses at the private school. The evidence contained in the hearing record supports a finding that it was the private school, not the Parent, who incurred the financial burden associated with the student's education for the 2011-2012 school year. (Id.) However, the private school is not a party in this case and is, therefore, not entitled to relief under the

IDEA. (Id.)

Even if the Parent had standing to seek tuition reimbursement, her notice to the DOE of her intent to unilaterally place the student at the private school is inadequate. (P-J & 20 U.S.C. § 1412[a][10][C][iii][I][aa]) The Parent received an offer placement from the DOE around June 16, 2011. (T-756 & P-R) However, she had already written to the DOE on June 15, 2011, indicating that she would place the student at the private school for the 2011-2012 school year. (T-757 & P-S) The letter does not contest the CSE’s February 2011 recommendations, but instead states that the student is being placed at the private school because he needs services on a 12-month basis and that she has not yet received a placement for the student’s 2011-2012 school year. (P-S) It is important to note that the DOE did recommend a 12-month placement for the student. (T-129, 221 & P-O) The Parent also wrote a follow-up note to the CSE on June 23, 2011 objecting to the DOE recommended school, and again advising the she was going to place the student at the private school and seek tuition reimbursement. (P-V)

The notice requirement of 20 U.S.C. § 1412 “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]) Here, the Parent did not meet with the DOE for a new IEP after February 2011 and never asked the agency to reconvene a CSE team for a new IEP. (T-768)

The “notice” in this matter provided the DOE notice of the unilateral placement intended at public expense, but it did not give adequate notice of the parents' procedural or substantive concerns with the proposed IEP. Whether under 20 U.S.C. § 1412 notice requirements, or general equity principles regarding notice (Frank G. 459 F. 3d. 356, 376), the notice did not adequately inform the DOE of the Parent's concerns. (SRO No. 08-088)

The Parent cannot assert a claim for the particular relief she has requested on behalf of a private entity that lacks standing under the IDEA to maintain a claim against 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 Parent might argue that she is entitled to direct funding under Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998). However, in Connors, the Court dismissed the Parents' claim for tuition and in dicta discussed the concept of “prospective” tuition payment after the Court made a finding that the school district conceded that it could not provide an appropriate education for the student and that the private placement could. (Id. at 34 F. Supp. 2d at 806)

In the case at bar, the DOE has not conceded that it failed to offer the student a FAPE for the 2011-2012 school year and contests the Parent's claim that the unilateral placement at the private school was appropriate for the student. (T-114 & 117) Because the hearing record demonstrates that the Parent has not paid any tuition or incurred out-of-pocket expenses, under the circumstances I find that the Parent does not have standing to seek tuition reimbursement or retrospective relief on behalf of the private school.

A Parent is not precluded, as a matter of law, from obtaining reimbursement for the cost of services which were provided prior to the date when the Parent initiated due process proceedings. (See Northeast Central School District v. Sobol, 78 NY 2d 598 (1992) However, the timeliness of a claim for tuition reimbursement is one of the elements which may be considered in determining whether the Parent's claim is supported by equitable considerations. (See Bernardsville Board of Education v. J.H. et al., 42 F 3d 149 (3d Cir.,

1994) and SRO No.: 95-25) Prompt resort to due process proceeding must be made, so that school authorities have an opportunity to correct mistakes or omissions in providing students with a FAPE. The timeliness of a Parent’s claim for reimbursement is one of the elements which may be considered in determining whether the Parent’s claim is supported by equitable considerations. (See Phillips v. Board of Educ., 949 F. Supp. 1108 (S.D. N.Y.,

1987) and SRO No. 95-25) Here, the Parent filed her request for tuition payment by the DOE on or about July 8, 2011, at close to the start of the 2011-2012 school year. Throughout the school year, the Parent did not make payments to the private school and the private school did not suspend or terminate the student’s enrollment or pursue any claim against the Parent for non-payment. The evidence contained in the hearing record supports a finding that it was the private school, not the Parent, who incurred the financial burden associated with the student's education for the 2011-2012 school year. (See S.W., 2009 WL 857549)

For all of the reason stated herein, I must find that the Parent is not entitled to direct and/or prospective funding of tuition at the private school for the 2011-2012 school year. (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, 08-050, 07-032 & 04-037)

I also find that the DOE did offer the student a FAPE for the 2011-2012 school year. Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school ; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school ; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school , the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school , if specifically requested in writing by the parent of the student or by a member of the school at least hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.

Here, the February 16, 2011 CSE team consisted of the school , a New York State certified special education teacher (“K” through “12”) as the district representative, a parent member, a social worker from the student’s private school, the student’s mother and his private school teacher by telephone. (T-124-5 & P-L) Accordingly, I find that the CSE was duly composed.

As stated above, 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) 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]) Finally, as stated 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)

At the IEP meeting, the CSE team reviewed the student’s private school report from December of 2010, the classroom observation she conducted, the evaluation from 2009 and an therapy evaluation. (T-127) The student’s evaluation dated July 9, 2009 found that the student’s . (D-4) He is said to require periods of time. (Id.) The CSE team recommended placement in a special class in a specialized school with a ratio, related services, a one-on-one paraprofessional and a 12month school year. (T-129) The student was also recommended to have and , , a full-time paraprofessional for education. (T-134-5 & 157)

There is no dispute that the CSE properly classified the student as . (T114 & 478) The student’s private school teacher asserted that the student did not have a “ ” assigned to have at the private school and did not need an from . (T-649-

1) She did not want the student the day and was concerned that a “ ” would inhibit the student’s to be with his . (T-680-1) A “ paraprofessional” back from his “ .” (T-692)

The student’s mother also stated that the he did not need a . (T-747-8) However, she also stated that the student to “because .” (T748-9) She also said that the student will not be able to support and needs time. (T-750) Based on the fact that the student is said to need “ and for brief periods of time” and “because he needs ”, I find the DOE’s recommendation of a “ ” paraprofessional for the student is appropriate.

The CSE team did not recommend for the student, which the Parent says she requested. (T-248-9, 734 & P-L) However, the CSE team contracted out for a evaluation after the meeting which was subsequently received a around March 26, 2011. (T-138-9 & P-S) The evaluation did not recommend services for the student. (T-140)

The CSE team did not draft a BIP for the student because his did not interfere with his instruction and the Parent did not request one. (T-147-8) An evaluation dated June of 2011 is said to have indicated that the student’s , but the CSE did not have that evaluation for the February 2011 IEP meeting. (T-231) The private school program director said the student is and in no way a that requires a BIP. (T-340) The student does not have a BIP at the private school. (T-506-7 & 690)

Finally, the proposed DOE teacher testified that similar students in and . (T-

351) The student also would have been placed with students within his age range. (T-384-5) Although a BIP was not recommended for the student and he is said not to need one, there is a“ ” person at the DOE school trained in how to manage . (T-457) “Parent training” is programmatic at the DOE school, meaning that it is a part of the program. (T149)

For all of the reasons stated herein, I find that the CSE’s recommendations are “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]) Accordingly, I also find that the DOE offered the student a FAPE for the 2011-2012 school year.

Having found that the Parent did not have standing to bring the instant claim and that the DOE offered the student a FAPE for the 2011-2012 school year, the necessary inquiry is at an end and I need not determine whether the student’s private school placement is appropriate or whether equitable considerations bar an award on behalf of the Parent.

NOW therefore, it is hereby

ORDERED that the Parent’s request for tuition reimbursement and/or prospective funding for the student’s 2011-2012 school year at the private school are DENIED; and it is further

ORDERED that the CSE shall forthwith re-evaluate the student and immediately reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related services that he should receive for the 2012-2013 school year. Dated: August 27, 2012

________________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

EDL:dl

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON JULY 19, 2011

PARENT

A Demand for Due Process, 7/8/11, 14 pages B Order on Pendency, IHO Mr. , 8/10/10, 6 pages C Findings of Fact and Decision, IHO , 12/29/09, 7 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 13, 2011

PARENT

E Therapy Evaluation, 6/11/10, 8 pages F DOE CA-1 Form, 6/15/10, 1 page G School Function Evaluation, 6/22/10, 11 pages J School Interdisciplinary Report of Progress, December 2010, 13 pages K DOE Notice of IEP Meeting, 1/7/11, 1 page L IEP, 2/16/11, 19 pages M DOE CCP-5 Case Material Checklist For 2011-2012 school year, 2/16/11, 1 page N DOE Minutes of CSE Meeting, 2/16/11, 2 pages O DOE 12-Month School Year Form, 2/16/11, 1 page P School Interdisciplinary Report of Progress, July 2011, 17 pages Q DOE Waiver of IEP Meeting to Amend IEP, 6/3/11, 2 pages R Final Notice of Recommendation, 6/14/11, 1 page S Letter to CSE from Parent, 6/15/11, 1 page T Letter to , 6/17/11, 1 page U Evaluation, 6/21/11, 11 pages V Letter to CSE from Parent, 6/23/11, 2 pages W DOE Due Process Response, 7/19/11, 4 pages X DOE Special Education Service Delivery Report 2010-2011, 1 page

DEPARTMENT OF EDUCATION

1 Annual Review Notice to Parents, 9/22/10, 1 page 2 Classroom Observation, 12/10/10, 3 pages 3 Notice of Recommended Deferred Placement, 2/16/11, 1 page 4 Report, 7/9/09, 6 pages 5 School Function, 3/26/11, 5 pages 7 Letter from School, 9/19/11, 1 page 8 School Summer Schedule 2011, 1 page 9 School 2011-2012 Schedule 1 page

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 11, 2012

PARENT

Y DOE School Survey District 75 Report, 2010 - 2011, 16 pages Z Overview of the School, 11/9/11, 2 pages AA Description of School Program, 11/9/11, 4 pages BB School Program Report of Progress, December 2011, 16

pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 1, 2012

PARENT

CC Class Schedule, 9/16/11, 1 page

DEPARTMENT OF EDUCATION

None