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: October 17, 2011

November 14, 2011

November 17, 2011

December 14, 2011

December 23, 2011 Actual Record Close Date: April 2, 2011 Hearing Officer: Edgar De Leon, Esq.

CORRECTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 17, 2011

Attorney — Student

Father — Student

Interpreter — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 14, 2011

Attorney — Student

Father — Student

Interpreter — Student

District Representative — DOE

Case Manager — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 17, 2011

Attorney — Student

Father — Student

Interpreter — Student

District Representative — DOE

Principal (via telephone) — DOE

Teacher (via telephone) — DOE

ABA Director (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 14, 2011

Attorney — Student

ABA Director (via telephone) — Student

Interpreter — Student

CSE Designee — DOE

Father — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 23, 2011

Attorney — Student

Father — Student

ABA Director (via telephone) — Student

Director– (via telephone) — Student

Interpreter — Student

District Representative — DOE

On August 1, 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 involving the special education program of a (10) year old student attending a private school and the New York City Department of Education (“DOE”) Home District , Service District After adjournments were granted on consent or for good cause, the impartial hearing was held on October 17, 2011, November 14, 2011, November 17, 2011, December 14, 2011 and December 23, 2011. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parents alleges that the student’s Individualized Education Program (“IEP”) dated March 25, 2010 is procedurally and substantively flawed. (See Parent’s Due Process Complaint - “DPC”) The Parents further alleges that they wrote letters to the DOE on April 26, 2010, July 8, 2010, July 28, 2010, August 4, 2010 and August 25, 2010, voicing their concerns about the student’s progress at this public school and requesting certain services. (Id.) As a result, a new IEP meeting was held on October 7, 2010, which also produced a procedurally and substantively flawed IEP. (Id.)

The Parents further allege that on January 10, 2011, they notified the “school based support team” that they would be removing the student from his public school and placing him in a private school for autistic students. (Id.) The student started at the private school on February 17, 2011. (Id.) The Parents now request the following relief at this impartial hearing:

(a) Direct and/or prospective funding for the student’s attendance at the private school, including tuition and any other related cost of fees for the 2011-2012 school year; and

(b) Reimbursement for any transportation costs incurred to date; and

(c) Provision of transportation to the private school for as long as necessary until such time as the DOE is able to offer an appropriate program; and

(d) Compensatory education for occupational therapy which the DOE failed to provide during the 2009-2010 and 2010-2011 school years; and

(e) Compensatory physical therapy services for failure to provide such services during the 2009-2010 and 2010-2011 school years; and

(f) such other relief as the IHO determines to be fair and just.

During the hearing, the Parents amended their request for relief stating that the hearing just concerned funding for the 2010-2011 school year. (T-95-6) The transportation issue had been resolved. (T-96)

THE DOE’S CASE

The DOE argues that in 2009 the Parents requested that the student have a services. (T-28) The agency felt that these services were not appropriate for the student. (Id.) On February 14, 2011, the Parents placed the student in a non-approved program that is inappropriate for him. (Id.) The DOE agrees with the student’s classification as autistic. (T-33) The DOE concedes “Prong I” of the Burlington/Carter analysis for tuition reimbursement. (T-230)

The DOE did not call any witnesses to testify on its behalf and did not submit any documents into evidence. (T-5-10 & 34)

THE PARENTS’ CASE

The Parent argues that the student has . (T-29) The student lacks basic skills in reading, writing, spelling and math. (T-29-30) He requires a full-time support throughout the school day from an individual qualified to work with children who have autism. (T-30) The Parents’ private psychological testing reinforces the student’s need for a full time one-on-one support. (T-31) The student’s private school is a small structured school for children . (T-31) The Parents agree with the student’s classification as autistic. (T-33)

The Parents called (5) witnesses to testify on her behalf and submitted (36) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parents is as follows:

The Parents’ first witness is the student’s father. (T-35) He stated that the student is very slow and needs special education. (T-35-6) At the public school the student attended for three years, he did not know how to read and write and did not know math. (T-36) The student needs one person to sit with him all day. (Id.) The student’s case manager told him that the student has to go to a school that provides support. (T-40) He realized that the student was having . (T-41) The student really did not like to attend the public school. (T-42) The student was The witness stated that they had a conference at the public school and the DOE told him that they could not provide support. (T-44) He cannot and so the student’s case manager wrote the letter to the DOE and explained to him what they are doing (T45 & P-B) Sometimes he signs his last name and then his first name, but the signatures on exhibits P-D and P-E are his. (T-46)

The witness stated that the student has progressed a lot since he started at the private school. (T-50) He understands math, knows the holidays, knows how to read and write and knows how to use a computer. (Id.) In 2010, he earned $12,000. (T-51 & PAA)

On cross examination, the witness testified that he rents his apartment. (T-52) His tax return has a different address because he used to live with his mother-in-law. (T-

53) He moved about three years ago. (Id.) The student’s case manager participated in the IEP meeting. (T-56) He heard about the private school from “ear to ear.” (T-57) At the private school, he saw that there was special attention given and that there was oneon-one support with each student. (T-58) He decided that the student had to go to the private school in 2010. (Id.) He visited the private school in 2009. (T-61) The attorney wrote the letters for him. (Id.)

The witness stated that the tuition and fees at the private school is $77,500. (T-64 & P-O) The student started to attend the private school in February of 2010. (T-64) The private school is a ten-month program. (T-64-5) The student attended the public school from September 2009 until February 2010. (T-65) Maybe his wife attended the March 25, 2010 IEP meeting and he does not remember if he attended the October 7, 2010 IEP meeting. (T-67-8 & P-EE) He did not get a copy of the October 7, 2010 IEP. (Id.) He agrees that the student needs a special class in a special school. (T-70) He also feels that the student needs special education programming during the summer. (T-71) The student attended the public school in the summer of 2010. (T-72) The private school does not have a summer school, although the student needs to study all of the time. (Id.)

The witness stated that he did not pay the $17,500 non-refundable enrollment deposit. (T-73) He did not pay any money to the private school for the 2010-2011 school year. (T-73) The private school sent letters asking for the money. (Id.) He does not remember signing a contract with the private school for the 2011-2012 school year. (T-75) He did not sign anything with the private school this year. (T-75-6) The student

(T-76 & P-V)

On re-direct examination, the witness testified that he notified the DOE that he would be removing the student from the public school on January 10, 2011. (T-78 & P-J) He visited the private school program in 2010. (T-80) He attended the June 13, 2011 IEP meeting. (T-81 & P-FF) He understood that he was responsible to pay the private school. (T-83) He did not have any conversations with the student’s case manager about the impartial hearing process and how funding would be handled. (T-85) At this impartial hearing he hopes that the student will stay with his teacher. (T-86) He wants the student to stay at the private school because the student is very happy with the teachers and the program. (Id.) There was no re-cross examination of the witness. (Id.)

The Parent’s second witness has a B.S. in Psychology and works for a not-forprofit social organization that assists with all sorts of mental, food, financial assistance and government entitlements. (T-100-1) They work mainly with the new Syrian immigrants. (T-101) She is a case manager at the organization. (T-102) They also assist and advocate for students. (T-103)

The witness stated that the student’s Parents were insisting that the public school was not a good environment for the student and that he was not progressing thereat. (T-

104) She first met the student about 2005. (Id.) She has seen the student at her office and at home. (T-105) The student exhibits . (T-106) The student does not recognize letters or numbers and does not follow directions. (Id.) He is and would not initiate any conversation. (T-108) The student cannot read or write. (T-109)

The witness stated that the principal of the public school said that the student was improving and progressing. (T-110) The student was in a class at the public school. (Id.) She visited the student’s public school classroom and whenever the paraprofessional would sit with the student and redirect him, he would do better. (T-113) The student received at the public school, but she is not sure about “ (Id.) During the 2009-2010 school year, she spoke with the student’s public school teacher who told her that the student was last in his class. (T-114) She helped the Parents write a letter to the DOE. (T-115 & P-B) In that letter, the Parents were asking for a paraprofessional for the student. (T-116)

The witness stated that the student did not know how to go up and down the stairs. (T-117) At the public school, the student was on the fourth floor and need the assistance of a paraprofessional to go up and down the stairs. (T-118) Despite that, the DOE did not provide physical therapy for the student. (Id.)

The witness stated that she explained to the Parents that there is a tuition fee at the private school and that ultimately, they were responsible for the fee. (T-124) She also told them of the option of having an impartial hearing. (Id.) She has seen the student every few months since February of 2011 and finds that he is . (T-125)

On cross examination, the witness testified that she did not evaluate the student. (T-129) She has no background in working with children that have . (T-131) However, several of the student’s IEPs stated that he learns best on a basis with refocusing and redirection. (T-131) At the private school, the student receives instruction from a teacher. (T-132) The student does not have a one-on-one paraprofessional assigned to him at the private school. (Id.) The private school became an option for the student around the middle or end of 2010. (T-133) The student was assessed in June of 2010. (T-135 & P-F) There was no re-direct examination of the witness. (T-136-7)

The Parent’s third witness is the Principal of the student’s private school. (T-144) The private school is small and has (21) students, (4) classes and provides instruction in addition to related services. (T-148) The students are on the spectrum. (Id.) Every student has an individualized program and has an assessment done in various domains. (Id.) They use “DIR” and “ABA” as methodologies. (T-149) The two methodologies are integrated, but goal driven through the various lenses. (T-150)

The witness stated that the student is unable to respond to why questions, so a program is written to address his inability to do that. (Id.) That goal would follow the student throughout the day with all of his service providers. (T-151) The student to teacher ratio is . (T-152) The class is run by a special educator and there is a therapist, occupational therapist, a Floortime therapist, a music therapist and classroom instructors. (Id.) Every student has their own individualized schedule. (T-153) The curriculum varies from student to student based on their individual profile. (Id.) Related services occur throughout the day. (T-154)

The witness stated that she first met the student in September of 2010. (T-155) They showed his mother and the student’s case manager the program. (Id.) It was clear that the student was The witness stated that and perseverations are addressed through Floortime therapy, the student is given (T-158-9)

The witness stated that the student’s father came in to speak with the Board of Directors to discuss the parameters of the student’s tuition contract. (T-160) She cannot say for sure whether the student’s father understood the contract. (T-161-2) The “impartial hearing” process was discussed with the family. (T-162) Statements are sent out once every month to all of their families. (T-162-3) There have been cases where students have been forced out of the program due to the families’ financial obligations not being met. (T-163) The student’s family was not successful at this impartial hearing; they would still have an obligation to come up with the money owed. (Id.)

The witness stated that the student’s profile is similar to those of the other students in his class in that they all have a similar academic and range. (T-166-7) She was responsible for grouping the class. (T-167) She observes the student daily in class and he has definitely made progress across the board, most notably in academics and . (T-168) The told her that the student made significant improvements in his body confidence, his body awareness and his gravitational insecurity has gotten better. (T-169) In the area of social skills, the student continues to need support, but he is less afraid of approaching a peer and asking them a question. (T-170-1) She attributes this to the fact that the student is getting much more intensive one-on-one instruction. (T-171) The student needs redirection and a lot of support to learn. (T-172)

On cross examination, the witness testified that the private school is in a school building. (T-173) There are four rooms that are used as classrooms. (T-174) A methodology is a way that you approach a program, not something that you “pull in” or “push out.” (T-175) For the most part, related services happen in another location. (T-

176) Floortime is a related service, but it’s part of the DIR methodology. (T-177) “TEACCH” falls under the rubric of ABA. (T-180) They do not take data on TEACCH. (T-181) They do take data in their ABA trial program. (Id.) Anybody working with the student is using both the ABA and DIR methodologies. (T-182) The student’s classroom teacher is not a “BCBA.” (Id.)

The witness stated that she distinguishes Floortime from DIR. (T-187) However, Floortime comes under the DIR heading the way discrete trial would come under an ABA heading. (T-187-8) Floortime is provided to the students through the school day. (T189)

The Parent’s fourth witness is the private school ABA Director. She stated that during the 2010-2011 school year they “might” have started the “touch math program” with the student. (T-196) She considers it progress that they were able to get the student to focus on numbers in math without being distracted by his letters. (T-197) The student had some in the beginning like . (T-198) The improved during the 2010-2011 school year. (T-199) The student also improved in his play. (T-201)

The witness stated that when grouped with four to five students, there is a huge . (Id.) They do want to expose the student to large groups. (Id.) The student has a lot of anxiety which they are addressing through their . (T-204) Any data that is taken of the student is transferred to a graph and then viewed on a weekly or bi-weekly basis. (T-208) In 2010-2011, changes were made to the student’s program based on the data. (T-209) Data is recorded every time that they sit down with thee student for an academic setting. (T-211)

On cross examination, the witness testified that she is not yet a “BCBA.” (T-222) She has a New York State certification in special education. (Id.) There is no one at the private school that is a BCBA. (T-223) She is involved with writing all of the ABA programs with input from the staff and trains the staff. (Id.) She is responsible for all of the student at the private school. (T-224) They begin to put the programs together in September and by the beginning of October the majority of the programs are completed. (T-226) In March of 2011 she completed the student’s assessment and had established his goals. (T-227)

The witness stated that the student had a that had been done within the last three years as required. (T-228) They got the student’s IEP from his previous placement. (T-229) The only time she contacts a school is when they did not receive the student’s records. (T-231) For the student, they used parts of the ABLS because he was showing more readiness skills. (T-232) They did the ABLS in the beginning of March. (Id.) The private school is a ten-month program that has contracts with many of the DOE approved camps that their students attend for the summer. (T-233) They wrote goals based on the

ABLS. (T-234) They did not conduct any formal evaluations of the student. (T-236)

The witness stated that she worked with the student twice a week on a regular basis during the 2010-2011 school year. (T-238) The student’s classroom teacher and all of his instructors used Aba with the student. (T-239) ABA was used “in some parts of speech”, not with Floortime and “could be used” with . (T-240-1) She has seen data taken by the occupational therapist. (T-241) She has not received data from the speech therapist or Yoga instructor. (T-244-5) She also has not received data from the swimming instructor. (T-247) She believes that the student was receiving ABA two to four periods per day for (45) minutes per period. (T-247-8)

On re-direct testimony, the witness testified that she is working towards her

BCBA. (T-251-2) Teacher written assessments are their informal assessments. (T-255) A (“FBA”) was conducted for the student. (T-259) The informal assessments have shown that the student has progressed. (T-264) He has mastery of lower and upper case letters of the alphabet, letter sound correspondence and has increased his sight words. (Id.)

On re-cross examination, the witness testified that the ABLS is not a standardized test. (T-265-6) It is not a developmental test either. (T-266) It is an assessment. (Id.) They did not use any test or measures to “informally” test the student. (T-269-70)

The Parent’s fifth and final witness is the student occupational therapist. (T-277) She has a doctoral degree in occupational therapy. (T-279) She is also a licensed occupational therapist in New York City. (T-281) She is the Director of Occupational Therapy at the private school. (T-282) When the student came to the private school, she did an evaluation. (Id.) The student has a . (T-283) His main difficulty was his gravitational insecurity . (T-284)

The witness stated that she worked with the student three times per week from February to June on a basis. (T-286) From time to time, she pushed into the classroom and taught. (Id.) They work on two methodologies, DIR and ABA and she is not certified in either of them. (T-287) She does not use the ABA so much because it is too strict for her. (T-288) The student definitely progressed from February to June. (T-

289) She sees progress in the student’s . (T-290) The student can now ride a scooter and climb, which is a huge accomplishment for him. (Id.) The student has gained in confidence and is more able to focus. (T-290-1) The witness stated that the student has also progressed with his visual perception. (T-294)

On cross examination, the witness testified that a “sensory” diet is not closer to either DIR or ABA methodology. (T-299-00) The was used in the classroom. (T-

301) The administration determined how many occupational therapy sessions the student would have. (T-303) The student mastered riding a scooter. (T-305)

On re-direct examination, the witness testified that every child at the private school has occupational therapy three times per week. (T-308) If a student needed more or less occupational therapy, the administration would value and follow her advice. (T-

309) They send a write up to the Parents every day of the student’s sessions. (T-311-2) There was no re-cross examination of the witness. (T-317-8)

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).

Here, the DOE has conceded “Prong I” of the above analysis. (T-230) Accordingly, I find that the DOE failed to offer the student a FAPE for the 2011-2012 school year.

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

The student psychological evaluation was conducted from February to August of 2010. (P-F) It notes that the student’s “…academic progress is significantly below his age level…” and that the student “…requires a special education teacher or paraprofessional qualified to work with autistic children….” (Id.) The report also calls for the student to have a “behavior modification chart” and to receive speech, occupational therapy and social opportunities from “social skills therapy.” (Id.) Finally, the report recommends “parenting courses” for the student’s Parents. (Id.)

The student’s IEP dated March 25, 2010 states that the student “…seems focused and is his most productive when in 1 to 1 instruction.” (P-DD) His IEP dated October 7, 2010 states that he needs “…consistent redirection and prompting….” (P-EE) His June 13, 2011 IEP calls for the student to have a “highly structured environment.” (P-FF)

At the private school, the student receives instruction from a teacher. (T-132) The private school services students on the . (T-148) Every student thereat has an individualized program. (Id.) The student’s class is run by a special educator and there is a speech therapist, occupational therapist, a Floortime therapist, a music therapist and classroom instructors. (T-152) The curriculum at the private school varies from student to student based on their individual profile and related services occur throughout the day. (T153-4) The student’s profile is said to be similar to those of other student’s in his class in that they all have a similar academic and . (T-166-7) There is ample evidence in the record that the student is progressing at the private school. (T-50, 168-72, 197-01, 264 & 290-4)

I find that the student’s placement at the private school 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)) I further find that the student was appropriately placed thereat for the 2011-2012 school year.

There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. The Parent served notice of his intention to place the student at the private school on January 10, 2011. (T-78 & P-J) He attended the IEP meeting held on March 28, 2010. (P-DD) As stated above, in the absence of evidence demonstrating that the Parent 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). Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parent.

The Parent herein request “direct and/or prospective funding for the student’s attendance at the private school…for the 2011-2012 school year.” (DPC) Later, the Parent amended his request for funding for only the 2010-2011 school year. (T-95-6) However, the record indicates that the student started to attend the private school on February 14, 2011. (P-II) The tuition owed to the private school for the period of February 14, 2011 to June 23, 2011 is $38,750.00. (Id.)

There is ample evidence in the record that the Parent is responsible for the cost of the student’s tuition at the private school. (T-64, 83, 124 & 163) Yet, the Parent only earned $12,000.00 in 2010, did not pay any money to the private school for the 2010-2011 school year and has not paid the $17,500.00 non-refundable enrollment deposit for the current school year. (T-51, 73 & P-AA) Under the circumstances, it is hard to fathom how the private school and the Parent could believe that the Parent could ever pay the private school tuition which totals $77,500.00 for a full 10-month school year. (T-64 & P-O)

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 1415, 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 Parent did testify that the private school has sent him letters asking for the money owed. (T-73)

Additionally, the private school Principal testified that the student’s father came in to speak with the Board of Directors to discuss the parameters of the student’s tuition contract. (T-160) She said that she could not state for sure whether the student’s father understood the contract. (T-161-2) The private school discussed the “impartial hearing” process with the family an statements are sent out once every month to all of their families. (T-162-3) The Principal further stated that there have been cases where students have been forced out of the program due to the families’ financial obligations not being met. (T-163) She affirmed that if the student’s family was not successful at this impartial hearing; they would still have an obligation to come up with the money owed. (Id.) Nevertheless, the hearing record clearly demonstrates that the Parent has not paid any tuition or incurred out-of-pocket expenses. Under the circumstances, I must find that the Parent does not have standing to seek tuition reimbursement or retrospective relief on behalf of the private placement.

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, at *7*9, parent had no financial standing to sue for direct retrospective 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])

While the Parent here has standing to bring a complaint asserting that a FAPE has been denied, I note that even if the Parent had standing to seek tuition reimbursement, his notice to the DOE of his 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 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])

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, other than to state that the student’s private psychological evaluation showed that he needed one-to-one support and that the CSE team said that there was nothing that they could do. (P-J) 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 he 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 that he 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 conceded that it failed to offer the student a FAPE for the 2011-2012 school year. (T-230) However, the agency contests the Parent's claim that the unilateral placement at the private school was appropriate for the student. (T-28 & 230) Despite finding that the Parent has a viable claim under the Burlington/Carter test for tuition reimbursement, I must find that the Parent is not entitled to direct and/or prospective funding of tuition at the private school for all of the reason 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, 08-050, 07-032 & 04-037)

The Parent also request compensatory education payment for occupational and physical therapy that the DOE allegedly failed to provide for the 2009-2010 and 2010-2011 school years. (DPC) However, there is no evidence in the record that the alleged failure to provide these services did in fact occur and resulted in the student’s regression. Accordingly, the Parent’s request for compensatory education must also be denied. (See Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 181 F.3rd 84 (2nd Cir. 2000))

The is also no evidence in the record to support the Parent’s request for reimbursement for any transportation costs incurred to date and his request for provision of transportation for the student to the private school for as long as necessary until such time as the DOE is able to offer an appropriate program was resolved by agreement between the parties. (T-96)

NOW therefore, it is hereby

ORDERED that the Parent’s DPC request for relief is DENIED. DATED: April 19, 2012 Corrected Date: May 7, 2012 (Correction Made to Exhibit Listing)

____________________________________

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 Impartial Hearing Request, 8/1/11, 8 pp. B Parent Letter to /26/10, 3 pp. C Case Manager Letter to /18/10, 1 p. D Parent Letter to /8/10, 1 p. E Parent Letter to CSE, 7/18/10, 1 p. F Report, 2/2010-6/2010, 11 pp. G Parent Letter to /4/10, 1 p. H Parent Letter to /25/10, 1 p. I Parent Letter to /21/10, 1 p. J Parent Letter to /10/11, 1 p. K Parent Letter to /10/11, 1 p. L Letter from /8/11, 3 pp. M Parent Letter to /1/11, 2 pp. N Letter from /6/11, 2 pp. O Tuition Contract, 12/21/10, 13 pp. P Teacher Rating Scale, 6/2/10, 2 pp. Q Parent Letter to CSE, 7/8/11, 1 p. R Parent Letter to CSE, 8/24/11, 1 p. S Request for Transportation, 9/6/11, 4 pp. T Private School Program, 9/16/11, 1 p. U Private School Class Schedule, 2010-2011, 1 p. V Private School Attendance, 9/15/11, 1 p. W Educational Progress Report, 5/6/11, 7 pp. X Progress Report, 5/3/11, 6 pp. Y Review, 5/2/11, 6 pp. Z Affidavit of Payment, 9/14/11, 1 p. AA Tax Return, 2010, 14 pp. BB Education Progress Report, 10/12/11, 2 pp. CC Progress Report, 10/12/11, 2 pp. DD IEP, 3/28/10, 19 pp. EE IEP, 10/7/10, 21 pp. FF IEP, 6/13/11, 15 pp. GG IEP Waiver, 6/28/10, 1 p. HH , 10/7/10, 1 p. II Corrected Affidavit, 10/19/11, 1 p. JJ Update, 10/2011, 2 pp.