Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student‟s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: June 8, 2011

October 5, 2011

December 20, 2011

Actual Record Closed Date: February 7, 2012

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 8, 2011

Attorney — Parents

Attorney — Parents

Aunt — Parents

via telephone Asst. — Parents

via telephone Psychologist — Parents

via telephone Department — Parents

via telephone Program Coordinator for Program — Parents

Parents

Esq. Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 15, 2011

Esq. Attorney — Parents

Esq. Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 20, 2011

Esq. Attorney Aunt — Parents

Program Coordinator for (via telephone) — Parents

Esq. Attorney — DOE

The matter of . came on for hearing before me on June 8, 2011, the date of my designation as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(b)(2). On February 23, 2011, I was appointed as impartial hearing officer. On April 4, 2011, I scheduled this hearing for June 8, 2011. On June 9, 2011, the attorney of the Dept. of Education (“DOE”) requested an adjournment of this case and the parent‟s attorney agreed to the adjournment. The hearing commenced on June 8, 2011, continued on October 15, 2011 and concluded on December 20, 2011. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than the detriment of any delay in the resolution of the matter. Accordingly the requests for extensions of the compliance dates were granted. The current record close date is February 7, 2012 and the compliance date for issuing a decision is February 21, 2012. This hearing was convened at the request of the parent through her attorney. The request was received on February 23, 2011. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

This proceeding arose under Article 89 of the New York State Education Law and Commissioner‟s Regulations as set forth in Part 200 of Title 8 of the New York Code, Rules and Regulations (“N.Y.C.R.R.”). Specifically, Section 200.5 of the Regulations provides the mechanism whereby a parent may challenge the validity of the recommendation made by a public school district‟s Committee on Special Education (“CSE”). The hearing was initiated by the parent of ., who challenges the May 26, 2010, review and recommendation of the CSE.

The parent unilaterally placed her daughter in the for and (“ ”) School, the in its (“ ”) program for and , located at , New York. The program is the school program for students aged . It provides vocational training and functional academic skill and like the is a private entity State Education Department approval (Exh. A; trans 41).

BACKGROUND

is - years old. She experienced and programs since grade and both and grade (Exh. P at 1). She attended and schools for and school (Id.). She was classified as in , but received no additional services until she attended the , a special education school (Id.). She was with ( ) and (Exh. Q at 4). has attended the since 2006. The DOE had agreed to pay ‟s tuition prospectively to the for the 2006-2010 school years (Exh. A at 1). For the 2010-2011 school year on May 26, 2010, District ‟s CSE classified as and recommended that be placed in a school in a special class with a staffing ratio of special education teacher and students and receive testing modifications, and related services of individual counseling a week for - minutes, counseling a week for - minutes in a group no larger than and individual and once a week for - minutes (Exh. 1 at 13). The parent challenged the May 26, 20101 IEP review and disagreed with CSE‟s placement. The parent maintained that District failed to provide a free and appropriate public education (FAPE) and she placed at the . The parent does not have the financial resources to pay the tuition for the for the 2010-2011 school year and so requests prospective payment to in the amount of $ for the 2010-2011 school year (Exh. A at 3).

, Ph.D., School Psychologist at the (trans. 51) conducted a Psycho-educational report on March 17, 2010, and administered the of Cognitive Abilities and estimated that scored in the , Fluid Reasoning, Processing Speed, Short-Term Memory and General Intellectual Ability (Exh. P at 2). The evaluator noted that scored in the in Oral Language, Broad Reading, Broad Mathematics and Broad Written Language on the W-J III Tests of Achievement (Exh. P at 3). The evaluator noted that had basic , reading comprehension, and math ; however, those well and she exhibited with in problem solving, comprehension and (Exh. P at 7).

, M.A. and , Ph.D., conducted a Assessment in February and March 2006, and noted 's overall was on the Wechsler Intelligence Scale for Children – Fourth Edition was in the . She achieved the following scores: in Verbal Comprehension, in the range; in Perceptual Reasoning, in the range; in Working Memory, in the range; in Processing Speed, in the range (Exh. R at 3). The evaluators noted that had “ perceptual reasoning, but more development of verbal reasoning and comprehension” (Exh. R at 8). The evaluator further noted that her scholastic were , but were “ than would be predicted by her overall ” (Id.). The evaluators summarized that had perceptual , executive function problems consistent with that her acquisition of scholastic (Exh. R at 10).

The parent maintained that the DOE failed to conduct required evaluations since the April 24, 2006 IEP meeting so the May 26, 2010 IEP was developed without sufficient information (Exh. A at 2). The parent further maintained that the transitional goals on the May 26, 2010 IEP were not based on any vocational assessment as required by 8 NYCRR Section 200.4(b)(6)(viii); and Section 200.4(d)(2)(ix)(a-c) and that the placement offer at the was not appropriate for safety reasons (Id.). The parent visited the proposed placement at the for the in September 2010 and was told the proposed class was full (Exh. A at 3). The parent enrolled at the for the 2010-2011 school year (Id).

THE DEPT. OF EDUCATION‟S CASE

The Department of Education‟s case was presented in the testimony of Mr. , Esq. who conceded that FAPE was not provided for the 2011-2012 school year (trans. 14). Mr. further conceded prong one of the Burlington/Carter test (trans. at 238).

THE PARENT‟S CASE

Ms. ., , , Ph.d., Assistant Head of , , Director of and at the , , Social Worker and Chair of the Department at the , , Program Coordinator of the Program at the , and , at the Program of the testified in support of the parent‟s claim for direct funding for her unilateral placement of at the . The parent is seeking $ for tuition for the academic year 20102011.

Mr. , a doctor of psychology and a certified special education teacher employed by the since 2006, testified that he had observed for the past years since grade everyday and worked closely to transition from her year to the at the for school students (trans. 42). He stated that the program at the campus was in its second year (trans. 74). He described ‟s problems included her to plan a of . He noted she , but her was by her and and her (trans. 44). He related that who opted to continue their education at the Program were able to receive and academic as well as to obtain (trans. 45). He stated that ‟s as well as her and her required and and that the Program provided small group instruction with individual support to assist her learning needs (trans. 46;62). He noted that attended the Program at the campus entitled “ at from 2009-2010 and 2010-2011 (trans. 65). He opined that she progressed at the Program during the 2010-2011 school year in her ability to be independent and work confidently in her internship at her job (trans. 67). He noted that a job coach provided individual assistance to at her jobsite twice a week (Id.).

On cross Mr. stated that worked at the Library days a week in the morning or afternoon and she was able to travel independently to work and school (trans. 74, 78). He further stated that was in a small class size with a large amount of teacher attention and support (trans. 77).

, a doctor of educational psychology employed by the for the past five years, testified that he had known since she started school and she required frequent and individual teacher attention to address her in functioning and learning and to stay on task (trans. 88, 95, 100).

, a licensed social worker employed by the for the past six years, testified that she had worked with for the past five years (trans. 110). She further stated that she and worked to transition in the spring of 2010. She related that she assisted for the 2010-2011 school year by obtaining evaluations (Exhs. P,Q) to develop educational planning and vocational planning goals (trans. 116). She stated that for the 2010-2011 school year, was placed in a class of students and that she met with a week for - minutes per session to work on goals; once in a small group of to students and (trans. 112,128). She further stated that she taught the class and that the Program was designed to meet and support a vocational track and the academic instruction was designed to assist the students in obtaining a vocational outcome at the conclusion (trans. 121; 127).

, a school counselor with a master‟s level in school counseling employed at the since 2009, testified that she had known since April 2010 and stated that she attended the Program in the 2010-2011 school year. She further stated she was the Program Director of the Program and that she supervised ‟s two teachers: Ms. , who taught the core academic subjects and Ms. , who coordinated the of the program (trans 132). She explained that the core academics included functional math relating to budgeting and money management and functional literacy involving reading news articles and interpreting the news (trans. 133). She further explained the life curriculum focused on decision making and selfcare as well as self-advocacy and internship programs (Id.). She stated that she provided with counseling in a group of three once a week. She noted that ‟s class had students with of , and with three teachers (trans. 135). She further noted that the class size for academic subjects was to students with Ms. (trans. 135). She stated that resented with , and at the beginning of the 2010-2011 school year, but the program focused on and and improved in those areas (trans. 136). She noted that benefited from and in the small class (trans. 137). She further stated that based on the evaluation conducted in March 2010, ‟s and levels pointed towards a vocational training program (trans. 139). She related that and the Program placed her in a at the from June 2011 and that she had at the Library from September until May 2011 (trans. 142). She further related that was in her at the library and that her work review was and her were to the extent that she was offered a job over the summer of 2011 (trans 143). She stated that was unable to travel to the independently at first, but she was accompanied by a community inclusion assistant for several months of her internship and in early spring, was able to travel independently (trans. 144). She further stated that expressed desire to work in a large book store as a full-time employee (trans. 147). She opined that the Program was an appropriate program for the 2010-2011 school year.

On cross Ms. stated that was taken through a process called “ planning” which consisted of two months of work in a small group to develop her and interests and strengths and then to develop a team of people who could assist her to achieve her goals (trans. 164). She further stated that only the related service of counseling was provided at the Program as it had no licensed or (trans 168).

Ms. further stated that even though attended her program, she received all her academic classes and her classes (trans. 246;249; Exh. U). She described the person-centered-planning portion of the schedule encompassed adaptive and transition planning to teach the students to set goals for their future and learn how to self-care and budget (trans. 248).

, a licensed special education teacher, testified that she taught literacy, math and in a classroom of to students (trans. 174-175). She stated that there were students in the gym class with a teacher and two community inclusion assistants (trans. 176). She further stated that she assessed ‟s reading level by the Qualitative Reading Inventory and the Star Math informal assessment and found erformed on a grade or grade level (trans. 178). She explained that since the Program focused on life the class managing and (trans. 183). She stated that required and she taught to use her to (trans. 186). She opined that in her - and and her academic in reading and her comprehension. She further opined that benefited from a small class where she received focused individual attention (trans. 190). She stated that was grouped with students with similar functioning levels and age level (trans. 191).

On cross Ms. stated that she taught life three times a week to learn map reading , household management, food management and community responsibility (trans. 201).

Ms. ., testified that she was and that lived with her (trans. 253). She stated that used her address to receive her mail and she frequently conferred with regarding ‟s program (trans.

254). She described as and (trans. 257). She recalled that both she and visited the proposed program for the 2010-2011 during the summer of 2010 (trans 265). She opined that the Program was an appropriate program for during the 2010-2011 school year because she observed in her daily living and in her reading and math . She stated that prior to attending the Program was able to up, or her teeth, or her hair without and at the end the 2010-2011 school year, she was able to living without . She further stated that prior to attended the Program was unable to and at the end of the 2010-2011 school year, was able to a and signs and (trans. 269). She noted that prior to attended the Program was go to the and change and the of the 2010-2011 school year, was able use her to (Id.). She further noted that and was excited to be placed in the in the because to books and in her - because of her excitement in the her . She opined that in her reading comprehension by (trans 270).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Initially I will address a procedural issue raised by the parties. The first issue is whether had standing to bring this due process. The counsel for the DOE argued that “a parent that has agreed to or been deprived of permanent and exclusive custody of a child has no standing to bring a suit under IDEA. Fuentes v. Bd. of Educ. of New York, 12 N.Y.3d 309 (2009), certified for review by Fuentes v. Bd. of Educ. o New York, 54 F.3d 145 (2d. Cir. 2008)” (IHO Exh. I at 1). He argued that the motion to dismiss should be granted because the parent was without standing to bring this hearing. The DOE‟s counsel maintained did not have custody of and had given the authority to make decisions for to . He further stated that the parent did not financially support (IHO Exh. I at 2). He argued that the parent was the parent and did not retain educational making for . He provided affidavits from the parent indicating her history and that her provided her with support and no one depended on her for financial support (IHO Exh. I at 5) and that she her to act on her behalf regarding and her . He argued that both the holding in Fuentes and the SRO decision in Application of a Child with a Disability, Appeal No., 07-011, supported his position that the parent lacked standing (IHO Exh. I at 2).

Counsel for the parent argued that there was no legal prohibition that barred ‟s parent to bring a due process hearing. She noted that the parent provided the three affidavits in response to the DOE‟s proposed settlement of this case. She further noted that the affidavits were provided to the DOE regarding her of ability to pay the tuition; however, upon receiving the affidavit district‟s counsel moved to dismiss. The parent‟s counsel argued “under New York law, the custody of a minor expires when the minor reaches the age of majority, which is 18 years. (New York Family Ct. Act § 119(c) Section 651); see Lisnitzer v. Lisnitzer (110 A.D.2nd 576, 500 N.Y.S.2nd 745) … Thus by operation of New York law, the expired on February 13, 2009, the date the Student reached the age of majority, more than two years before the Hearing Request in this case was filed” (IHO II at 4). The parent‟s attorney asserted that “under New York law, and consequently under IDEA, the Parent‟s custodial rights were restored when the Student reached the age of majority on February 13, 2009 (IHO II at 6).

The parent‟s attorney argued in the Fuentes case, custody was determined by a divorce decree. Further, she argued that in Fuentes, the custody order was silent as to the right to control educational decisions. (IHO II at 6) She further argued that ‟s parent did not have her parental rights terminated, nor was her right to make decisions for the Student in any way limited, reduced or extinguished by legal authority (Id.). She further argued that at no time did ‟s parent ever give her exclusive decision making authority, nor did she waive or limit her own rights by indicating that her had authority to act on her behalf when she was unavailable. It was undisputed that both the parent and her attended the IEP meetings (IHO II at 7).

The parent‟s attorney argued that the DOE had relied exclusively on divorce cases and cited two case: Fuentes and Application of a Child with a Disability, Appeal No., 07-

011. She asserted that neither decisions applied to the facts of the instant case. She asserted in the instant case, Parent‟s custodial rights were restored when the Student reached the age of majority (Id). Further, she argued that the parent never relinquished decision making authority and when personal and prevented her from directly participating in CSE meetings or visits to proposed placements, she ensured her attended and conveyed to her the information regarding . She noted that ‟s parent ensured was cared for by her when she was to for (IHO Exh. II at 8). The parent‟s counsel further noted that ‟s mother retained her and provided all required information (Id.) Moreover, the parent‟s counsel noted that the DOE provided no authority for its assertion that ‟s parent‟s to support deprived her of custody to bring this case (Id.). The parent‟s attorney presented legal authority for her position parent‟s to support did not deprive the parent of standing. In the holding of Application of a Child with a Handicapping Condition, Appeal No., 92-30, the SRO found that despite the fact that the Dept. of Social Services had financial responsibility and the child attended a residential school, the parent had not (IHO Exh. II at 9). The parent‟s attorney further argued that the parents who lack the financial resources to pay for private school tuition had a right to retroactive direct tuition payment relief. (Mr. and Mrs. A. v. N.Y.C. Dep‟t of Educ., 769 F.Supp.2nd 403, 428 (S.D.N.Y. 2011) (IHO Exh. II at 9). I find the parent‟s attorney provided legal authority to establish that the parent has standing to request this due process hearing.

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide “all children with disabilities” a “free and appropriate public education” (20 U.S.C. Section 1400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student‟s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13).

To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child‟s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent‟s claim. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c]. The District representative conceded that was not offered an appropriate program for the 2010-2011 school year and conceded the first prong of the three-prong Burlington/Carter analysis.

The parent has the burden of proving that the unilateral placement was appropriate. The parent bears the burden of proof with regard to the appropriateness of the services selected for the student during the 2010-2011 school year. In order to meet that burden, the parent must show that the private school offers an educational program that meets the student's special education needs (Burlington, 471 U.S. at 370 [1985]. The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-092). The parent must establish by a preponderance of the evidence that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the handicapped child” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007])

The parent‟s attorney argued in her closing brief the “private school need not meet the IDEA definition of a FAPE, formulate an IEP for the student, or provide the student with teachers certified in special education (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006)”(IHO III at 2). The issue of the private school's appropriateness depends on whether was „reasonably calculated to enable the child to receive educational benefits‟ (Frank G., 459 F. 3d at 364)( Id). Parent need not show that a private placement provides every special service necessary to maximize their child's potential in order to qualify for reimbursement (Frank G., 459 F. 3d at 365)(Id.). The parent‟s attorney further argued that the parent must provide an appropriate program not an ideal program “(C.B v. N.Y. City Dep‟t of Educ., No 02 CS 4620(CLP), 2005 WL 1388964 at *24 (E.D.N.Y. June 2005)(IHO Exh. III at 3).

The private placement must be reasonably calculated to enable a child to receive educational benefits and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement … provides education instruction specifically designed to meet the unique needs of a handicapped child” Gagliardo, 489 F.3d 115 (IHO Exh. III at 2).

Testimony adduced at the hearing and evidence submitted by the parent established that the parent has met her burden regarding the unilateral placement of . I find her small class setting and small teacher to student ratio address her learning issues and focusing problems. I find credible the testimony of the classroom teacher regarding appropriateness of teaching literacy, math and life as basic functional and I find the in her classes. I credit the testimony of the program director and I find that as she improved in - , - and - . I find the program curriculum was modified according to her needs and I find credible testimony that she improved in academic subjects based individual and group assessments. I credit the testimony of the social worker and counselor that at was appropriately grouped with other students who with issues. I find was placed with students with similar . I find the program provided an assistant to accompany and I find this support enabled to . I find there were opportunities for mainstreaming in the paid at the libraries. I find the Program provided the appropriate program and she achieved success in improving her such as map reading and using her phone as a calculator. I find individualized instruction was provided in academic areas. I find her were addressed in the Program and the Program provided educational instruction that was specifically designed to meet her needs. I find made in her , and needs.

The DOE attorney asserted in his closing brief that the program was not an appropriate placement for because ( ) was not provided during the 2010-2011 school year and was a necessary related service due to her (IHO Exh. IV at 3). He provided legal authority to support his assertion that the failure to provide a necessary related service rendered the parent‟s unilateral placement inappropriate. “See Berger v. Medina City Sch. Distr., 348 F.3d 513 (6th Cir. 2003)(school did not offer S&L child any S&L therapy); see also and Green v. N.Y. City Dep‟t of Educ. No.^[07] Civ 1259, 2008 U.S. Dist. Lexis 32118 (Castel, U.S.D.J.)(school did not offer counseling services); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656 (S.D.N.Y. 2005)(school did not offer any related service)”(Id.).

The parent‟s attorney argued in her reply brief that the had repeated refused to find the lack of a recommended related service alone rendered a student‟s private placement inappropriate. “G.R. v. New York City Dep‟t of Educ., No.

instruction or programs and no psychological services or math assistance at the private school. Id. at *7 (IHO Exh. V at 2). She noted in Werner. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656 (S.D.N.Y. 2005), the private school did not merely lack a single service, rather the private school did not provide any special education services. Id. at

660. (IHO Exh. V at 2) She argued that the Program provided specialized classroom instruction and accommodations in a small class with other students on her functional level with counseling, was to meet ‟s unique needs in live training and functional academics (Id.) She further argued that was provided in , games, worksheets by the systems in math, life and reading map (Exh. M at 8) and rogressed in her (IHO Exh. V at 2).

I find the parent provided ample evidence to establish the appropriateness of the Program. I find the lack of did not render the program inappropriate. I find the parent established the second prong of the Burlington/Carter analysis.

The parent requested direct funding to of $ to for the 2010-2011. Direct retroactive payment is an appropriate remedy in proceedings under IDEA (Mr. and Mrs. A. v. N.Y.C. Dept. of Educ. 769 F.Supp. 2d 403, 406(S.D.N.Y. 2011) (IHO Exh. III at 10). I find the parent established that she was financial unable to pay as indicated in her affidavits (IHO Exh. I at 7,9). I find the parent cooperated with the DOE. I find the parent is entitled to an Order directing the DOE to pay for the 2010-2012 tuition by issuing direct payment. The parent‟s attorney asserted in her post hearing closing statement that “where parent have satisfied each of the Burlington/Carter factors, a court has broad discretion to "grant such relief as . . . is appropriate" including direct payment of private school tuition. Mr. and Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-429 (S.D.N.Y. 2011). (IHO Exh. V at 2) A court may require a school district to pay a private school directly and prospectively for special education. 20 U.S.C. 1415[i][2][C][iii].

The DOE attorney argued that parent failed to demonstrate she lacked the financial resources to pay the tuition for the 2010-2011 school year in her three affidavits (IHO Exh. IV at 4). The parent‟s attorney argued in her reply brief that the parent provided detailed and uncontradicted information as to her lack of income and financial resources (IHO Exh. V at 3) and attached the Custody Order, an affidavit and a copy of the parent‟s New York State Benefit Identification Card to her reply brief. I credit the submissions and I find the parent lacked the financial resources to pay the tuition for the 2010-2011 school year.

ORDER

I order that the DOE shall be directed to remit payment to in the amount of $ within thirty days of the submission of proof of attendance. Dated: February 21, 2012

_____________________________

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 8, 2011

A Request for Due Process Hearing, 2/23/11, 3 pp. Parent

B IEP, 6/26/10, 14 pp. Parent

C Letter from DOE Enrollment Planning and Operations, 8/2/10, 1 p. Parent

D Letter Fax to , 8/13/10, 1 p. Parent

E Letter to CSE , 8/24/10, 3 pp. Parent

F Letter to CSE fax date 9/30/10, 3 pp. Parent

G Minutes of CSE meeting, 5/26/10, 1 p. Parent

H Due Process Response, 2/28/11, 3 pp. Parent

I School Enrollment Contract, 2010/2011, 2 pp. Parent

J Program, 2010/2011, 5 pp. Parent

K at schedules,10/14/10, 4 pp. Parent

L Academy Progress Report, 2009/2010, 16 pp. Parent

M Fall 2010 Progress Report, 11 pp. Parent

N spring 2011 Progress Report, 5/20/11, 5 pp. Parent

O Planning, 1 p. Parent

P report, 3/17/10, 7 pp. Parent

Q Three-day l Academic Evaluation report, 5/10, 9 pp. Parent

R Assessment, 3/06, 11 pp. Parent

S report, 12/17/05, 7 pp. Parent

T History, 10/13/05, 3 pp. Parent

1 IEP, 5/26/10, 15 pp. District

2 CSE minutes, 5/26/10, 1 p. District

3 FNR, 8/2/10, 1 p. District

4 Classroom Observation, 11/19/09, 1 p. District

5 Progress Report, 6/10, 13 pp. District

6 Due Process Complaint, 2/23/10, 4 pp. District

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 20, 2011

U schedules, Spring 2011 through 5/6/11, Parent

Spring 2011 5/9/11 through 6/17/11, Spring 2011 master schedule,

5 pp.

I 's Motion to Dismiss, 11/23/11, 11 pp. IHO

II Answer to Motion to Dismiss, 12/13/11, 11 pp. IHO

POST HEARING SUBMISSIONS

III Closing Statement, 1/30/12, 10 pp. IHO

IV ‟s Closing Statement, 1/31/12, 6 pp. IHO

V , Reply, 2/7/12, 8 pp. IHO

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Footnotes

[07] Civ. 4711 (TPG), 2009 WL 2432369, at *3 (S.D.N.Y. Aug. 7 2009)(„[The parent] was no required to establish that offered and in order to prevail. Rather, when the program and are examined in their totalities, it is clear that the program was well designed to serve needs.‟); Gabel v. Bd. of Educ., 368 F.Supp. 2d 313, 32 (S.D.N.Y. 2005)(finding unilateral private placement appropriate even though the school did not provide student with and and recommended on IEP)” (IHO Exh. V at 1) I find the parent‟s attorney has distinguished the cases cited by the DOE and noted “in Berger v. Medina City Sch. Distr., 348 F.3d 513 (6th Cir. 2003), where the school district did not provide any special education services needed by a speech and language impaired student. Id. at 523 (IHO Exh. V at 2). She noted that “in Green v. New York City Department of Education , No. 07 Civ. 1259 (PKC), 2008 WL 919609 (S.D.N.Y. Mar. 31, 2008), an emotional disturbed student received no specially designed