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: April 27, 2012

May 17, 2012

May 21, 2012

June 6, 2012

June 12, 2012

Hearing Officer: Edgar De Leon, Esq.

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

Attorney — Student

Attorney — Student

Mother — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2012

Attorney — Student

Attorney — Student

Mother — Student

Attorney — DOE

Teacher (via telephone) — DOE

Assistant Principal (via telephone) — DOE

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

Attorney — Student

Attorney — Student

Attorney — DOE

Assistant Principal (via telephone) — DOE

Teacher (via telephone) — DOE

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

Attorney — Student

Attorney — Student

Mother — Student

Educational Support Services (via telephone) — Student

Speech Therapist (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 12, 2012

Attorney — Student

Attorney — Student

Mother — Student

Teacher (via telephone) — Student

Headmaster (via telephone) — Student

Attorney — DOE

On March 2, 2012 I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parent of a attending a private school and the New York City Department of Education (“DOE”) - District . I was appointed to this case after the recusal of at least one other IHO. After the “resolution period” expired, the hearing was held on April 27, 2012 (“pendency hearing”), May 17, 2012, May 21, 2012, June 6, 2012 and June 12, 2012. The parties opted for the submission of written closing statements that were due and received on or about July 11, 2012. A list of the persons appearing at the hearing and the documents received in evidence is annexed hereto.

Prior to starting the hearing, the Parent made application for the issuance on an Order of Pendency pending the hearing and final determination of the matter. Both sides then made oral arguments on the record concerning the issue of pendency. The following Order on Pendency - “On Consent”, was issued in this case:

ORDERED on CONSENT and pursuant to the pendency provisions under the IDEA, the student shall immediately continue to receive the services provided under the decision of IHO Susan C. Lushing, dated August 1, 2006 and carried under New York City Case No. 105046, from the date of the filing of the DPC until the final disposition of this matter and any appeals therefrom, 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 Susan C.

Lushing’s decision dated August 1, 2006 and carried under New York City Case No. shall accompany this order for reference.

BACKGROUND

This case involves a (16) year old student that has attended a private school since 2006-2007 school year. (D-1) The Parent alleges that the student’s tuition at the private school has been paid since then by the DOE pursuant to Stipulations of Settlement & Discontinuance. (Id.) The Parent further alleges that the student has been denied a “free and appropriate public education” (“FAPE”) for 2011-2012 school year, that the student has , a IQ and . (Id.) The Parent is challenging the student’s March 10, 2011 Individualized Education Program (“IEP”) on mostly substantive grounds. (Id.) The Parent acknowledges receiving a Final Notice of Recommendation (“FNR”) from the DOE in June and serving “notice” to the agency on August 22, 2011 of her disapproval of the student’s recommended public school placement and unilaterally placement at the private school for the 2011-2012 school year.

The Parent alleges that she served the DOE notice after repeatedly trying to visit the recommended DOE school over the summer. (Id.) The also alleges that she visited the recommended DOE school on November 4, 2011 and found it inadequate. (Id.) She served additional written notice to the DOE on November 16, 2011. (Id.) At the hearing, the Parent seeks the following relief:

(a) that the IHO find the student’s current private school is his “pendent placement” for the period from the date of the filing of the DPC until the final disposition of this matter and any appeals therefrom, pursuant to the decision of IHO Susan Lushing dated August 1, 2006 and carried under New York City Case No. ; and

(b) that the IHO order the DOE to approve and fund the student’s placement at the private school, as well as transportation to and from school, from September 2011 through June 2012, and provide such other and further relief as may be warranted.

The Parent’s first request was granted on consent of the parties. (Supra) The decision on the Parent’s second request follows below.

THE DOE’S CASE

The DOE argues that it offered the student a FAPE for the 2011-2012 school year. (T-136) In an IEP dated March 10, 2011, the agency offered the student a 12-month school program with a staffing ratio with related services of therapy and (T-136-7) Members of the student’s private school participated in drafting the student’s IEP and the IEP’s goals are not being challenged. (T-137) The student’s private school placement is very similar to the placement offered by the DOE. (T-138) The Parent was sent an FNR on or about June 15, 2011 and the recommended DOE school could have implemented the student’s IEP. (Id.) The recommended DOE school is both “academic” and “vocational.” (T-139) Finally, the private school is inappropriate for the student and the Parent did not visit the recommended DOE school until November. (T-139-40)

The DOE called (3) witnesses to testify on its behalf and submitted (10) documents into evidence. The sum, substance and relevant part of the evidence presented by the DOE is incorporated in the decision below.

THE PARENT’S CASE

The Parent argues that the student is a . (T-140) The student’s mother did visit the recommended DOE school. (Id.) A “ ” program cannot possibly provide enough support for the student. (T-141) The recommended DOE school is a vocational school that did not show the student’s mother even one academic classroom. (Id.) The student’s IEP does not focus on vocational goals, but instead contains academic goals. (T-142) The DOE school also does not have an , does not offer internships, adaptive living programs or intensive language. (Id.) The students at the DOE school seem more sophisticated, older and tougher than the student and they are language. (T-143)

The Parent further argues that the student’s private school provides the support that the student needs. (T-143) There are often more than five adults in the classroom with (12) students and the student is in a (4) student math group. (Id.) The student receives , and at the private school, and they have an internship program and adaptive living programs. (T-143-4) The student’s mother did not visit the recommended DOE school until November 4th because she did not receive a return telephone call over the summer. (T-144) She then visited the wrong school in October. (Id.)

The Parent called (5) witnesses to testify on her behalf and submitted (19) documents into evidence. The sum, substance and relevant part of the evidence presented by the Parent is incorporated in the decision below.

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; 02-014 and 01105). 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)

There is an issue in this case concerning whether the Parent has standing to bring the claim. 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) Here, the DOE made its placement offer to the Parent on or about June 15, 2012 for the 12-month 2011-2012 school year. (D-6) The Parent did not visit the recommended school until November 4, 2011. (T-521 & 709) It is important to note that this is after the October 31, 2012 deadline that the private school imposes for withdrawal of the student’s placement and release of the Parent from her obligation under the Enrollment Contract. (P-H)

The hearing record reflects that for the 2011-2012 school year, the student's Parent entered into an enrollment contract with the private school applicable to the 20112012 school year, in which the Parent agreed in relevant part that “I am responsible for full payment of the tuition due under this contract.

My child will NOT begin school in September unless any deposit required by this contract has been paid…I further acknowledge that my child may

NOT begin school in September unless any tuition payments due…for the 2010-2011 school year or any previous school year have been paid in full….If the medical/health needs or behavior management needs of my child warrant the additional support of a Related Service Health Paraprofessional or Behavior Management Paraprofessional, I understand that such support is not included in the tuition under this contract, and may be recommended and arranged on a full-time basis by the [school name]. I agree to pay $28,000 for the additional cost of said Paraprofessional or to provide the [school name] a related service authorization (“RSA”) from the New York City Department of Education (“DOE”) and to sign the necessary documentation to enable the [school name] to obtain payment from the DOE for the Paraprofessional at the DOE approved rate, in lieu of payment from the Parent in the amount of $28,000….No deposit payment is required to be paid. Payment of the full amount of tuition is due on or before September 30, 2011. I understand that the [school name]

will permit payment of the tuition owed under this contract to be delayed beyond the due date in the event that I undertake to pursue my due process rights to seek direct or ‘prospective’ tuition funding from the New York City Department of Education (“DOE”) under applicable law….In the event that I am denied all or part of direct or ‘prospective’ tuition funding from the DOE…I agree to pay the tuition due under this contract within

(60) days of such final decision….I acknowledge that the [school name]

reserves the right to cancel this Enrollment Contract at any time for…lack of financial support for placement of my child….I understand that I will be released from this contract without financial penalty…should I choose to accept a school placement recommended by the New York City Department of Education…if I notify the [school name] in writing of my child’s withdrawal on or before October 31, 2011….I acknowledge that the failure of the [school name] to enforce…this Enrollment

Contract…shall in no way affect the [school name] right to later enforce….” (P-H - emphasis added)

The Parent signed the private school Enrollment Contract on September 16, 2011. (Id.) There is no evidence that the Parent has paid the required deposit or tuition for the 2011-2012 school year at the private school. Neither is there evidence in the record of the Parent’s financial status and/or her ability to pay the private school tuition. The tuition at the private school was $48,500.00 for the 2011-2012 school year. (P-H) There is no evidence that the Parent was able to pay the tuition at the private school when the enrollment contract was signed, or anytime thereafter. The Parent’s testimony that she would ask the private school to make a payment plan for her is not viable under the circumstances. (T-722) The private school contract does not contain any payment terms. (Id. & P-H) There is also no evidence in the record that the private school conferred any scholarship or other form of financial aid upon the student for the 2011-2012 school year.

Additionally, there is no evidence in the hearing record indicating that the Parent 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 absent a cold reading of the Enrollment Contract which intimates that the private school can take such action in the future. (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 enrollment contract states that the private school “reserves the right to cancel this Enrollment Contract at any time for…lack of financial support for placement of my child”, but there is no evidence in the record that the private school ever pursued this remedy, or has the intention of doing so. (P-H)

Because the hearing record demonstrates that the Parent has not paid any tuition or incurred out-of-pocket expenses, I must find that the Parent does not have standing to seek tuition reimbursement or retrospective relief on behalf of the private school. The Parent’s assertion that the private school has up to (6) years to sue the Parent to enforce the contract and that there is no record as to what the Parent’s income or assets might be in the next (6) years is merely speculative and not persuasive. According to the “Social History” dated May 9, 23010, the student’s parents are separated. (D-8) The student’s mother has an 11th grade education and was said to be on “mandatory bed rest” at the time. (Id.) The student’s father has a and was said to be working for the . (Id.) The record does not indicate what the father’s financial contribution support, well-being and education of the student is or is not. The student’s “stepfather” has an Associate’s Degree and works as a “ for the . (Id.) The record does not indicate whether he financially contributes to the student’s support and/or education.

With respect to the dismissal of the Parent’s claim for direct funding to the private school for the 2010-2011 school year, 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.)

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 a school district in its own right. (See Emery, 432 F.3d at 299, Piedmont Behavioral Health Center LLC v. Stewart, 413 F.Supp. 2d 746, 755-56 (S.D. W.Va. 2006) and Malone v. Nielson, 474 F.3d 934, 937 [7th Cir. 2007]) The Parent has also requested direct funding. (See Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998) 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, or that the Parent's unilateral placement at the private school was appropriate for the student. What’s more, the Parent’s request for tuition payment by the DOE is for the 2011-2012 school year, not the current school year or a future school year. Based upon the foregoing, I 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)

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 January 19, 2012, approximately (5-6) months after the start of the 2011-2012 12-month school year. (D-1) Prior to January of 2012, the Parent did not seek tuition payment from the DOE, 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.

As the law requires, the Parent asserts that she cooperated with the CSE. After having the student attend his current private school for (5) years, she would have considered placing him in an appropriate public school. The Parent acknowledges receiving the FNR in June, but states that she did not visit the recommended DOE school because no one returned her telephone call. (T-705-6) The Parent did not attempt visit the school. Instead, in August she sent a letter to the DOE advising that she was enrolling the student at the private school for the 2011-2012 school year, but ostensibly would continue to visit the recommended DOE school and enroll the student there if it was an appropriate placement. (P-Q) In October, she finally called the school directly and arranged for a visit, albeit to the wrong school. (T-521 & 706) The Parent did not visit the recommended the DOE school until November 4, 2011. (T-527, 709 & P-R) She did not file a DPC in this case until January 19, 2012. (D-1) The facts and circumstances evidence a perfunctory effort by the Parent at cooperating with the DOE’s effort to secure a FAPE for the student. It is important to note that the Social History report dated May 9, 2010 notes that the student is in a setting at the private school, reportedly doing excellent and that his mother hopes that he stays at that school. (D-8)

For all of the reasons stated herein, I must find that the Parent does not have standing to bring a claim on behalf of the private school and cannot prevail in her request for either “tuition reimbursement” or “direct/prospective” tuition payments to the private school for the 2011-2012 school year.

Nevertheless, I will consider whether the DOE offered the student a FAPE for the 2011-2012 school year. As stated above, a FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley and Cerra, supra)

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 psychologist; (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 psychologist; (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 psychologist, 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 physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 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 graduated for over five 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 student’s Committee on Special Education (“CSE”) on March 10, 2011 was composed of special education teacher acting as the district representative, a school psychologist, the student’s private school teachers, a member of the private school’s Educational Support Services, the Parent and a Parent Member. (T-155-6 & D-3) Accordingly, I find that the student’s CSE team was properly composed under law.

As also 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).

Here, the student’s CSE team reviewed his prior IEP, his classroom observation from November 16, 2010, his private school progress reports, his evaluation dated May 9, 2010 and his social history update, also dated May 9, 2010. (T-158-9 & D-7, D-8, D-9 & D-10) The student’s private school teacher, testifying for the Parent, confirmed that the student’s March 10, 2011 IEP accurately describes the student’s present performance in March of

2011. (T-656 & D-3)

The student’s Evaluation does not recommend a program or particular service. (D-

7) The Social History report dated May 9, 2010 notes that the student is in setting at the private school, reportedly doing excellent and that his mother hopes that he stays at that school. (D-8) All indications are that he is doing well in that setting. (T-671-2, 677, 679, 755-6, 764, 778, 780-1, P-I, P-J, P-K, P-L & P-M) Nevertheless, the student is still said to require 1:1 instruction. (T-480, 614-5, 656-7, 666-7, 669-70, 793-4 & D-3)

Here, the DOE offered the student a 12-month school year in a setting, with related services of therapy, . (T-157-8 & D-3) As noted above, the private school agrees that the student’s March 10, 2011 IEP accurately describes the student’s present performance in March of 2011. (T-656 & D-3) There is also evidence in the record that the DOE school could have implemented the student’s March 10, 2011 IEP, either at the school or via RSAs. (T-262-3, 267-8 & 276)

With extensive input from the student’s private school providers, the CSE produced an IEP that almost mirrors and even augments the student’s services at the private school, where by all accounts he is doing well. (supra) By extending the student’s school year and providing for a paraprofessional in his class, the student can receive the instruction he still needs at the DOE school. I find that under the circumstances, the student’s IEP dated March 10, 2011 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]) Accordingly, I further find that the DOE offered the student a FAPE for the 2011-2012 school year.

Having found that the Parent does not have standing to bring this claim on behalf of the private school 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.

NOW therefore, it is hereby

ORDERED that because the Parent does not have standing to bring this claim on behalf of the private school and because the DOE offered the student a FAPE, the Parent’s request for tuition reimbursement for the 2011-2012 school must be DENIED. Dated: October 11, 2012

____________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO RECORD

PARENT

A Stricken - Duplicate B Stricken C Findings of Fact and Decision, 8/1/06, 7 pp. D Stricken - Duplicate E Evaluation, 2/9/06, 11 pp. F Stricken - Duplicate G Withdrawn on Consent H Enrollment Contract, 2011-2012, 2 pp. I Progress Report, 2010-2011, 20 pp. J Progress Report, 2010-2011, 21 pp. K Progress Report, 2010-2011, 21 pp. L Progress Report, 2011-2012, 16 pp. M Progress Report, 2011-2012, 16 pp. N Class Schedule, Undated, 1 p. O Stricken - Duplicate P Stricken - Duplicate Q Notice Letter to CSE, 8/22/11, 1 p. R Notice Letter to CSE, 11/16/11, 2 pp. S Stricken - Duplicate T Stricken U Stricken - Duplicate V Adaptive Behavior Report, 12/13/10, 32 pp. W Social Language Test, 10/6/10, 2 pp. X Grades, 9/20/11, 1 p. Y Grades, 9/25/11, 1 p. Z Mission Statement, Undated, 1 p.

AA Program Description, Undated, 1 p. BB Special Education Report, Undated, 1 p. CC Comprehension Education Plan, 2011-2012, 57 pp.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 1/19/12, 5 pp. 2 Due Process Response, 1/26/12, 4 pp. 3 IEP, 3/10/11, 14 pp. 4 CSE Meeting Minutes, 3/10/11, 2 pp. 5 Notice - Deferred Placement, 3/10/11, 1 p. 6 FNR, 6/15/11, 1 p. 7 Evaluation, 5/9/10, 5 pp. 8 Social History Update, 5/9/10, 3 pp. 9 Progress Report, 2010-2011, 25 pp. 10 Classroom Observation, 11/16/10, 1 p.

IMPARTIAL HEARING OFFICER

I Parent Subpoena, 4/9/12, 4 pp. II DOE Opposition to Subpoena, 4/13/12, 2 pp. III Parent Reply, 4/17/12, 6 pp.