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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: June 11, 2012
July 2, 2012
Actual Record Close Date: November 11, 2012
Hearing Officer: Edgar De Leon, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 11, 2012
Attorney — Student
Mother — Student
CSE Representative — DOE
(via telephone) — DOE
IEP Teacher (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 2, 2012
Mother — Student
Director (via telephone) — Student
Principal (via telephone) — Student
Administrator (via telephone) — Student
CSE Representative — DOE
On February 22, 2012, 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), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a ( ) year old student and the New York City Department of Education (“DOE”) - Home District , regarding the student’s special education program. After adjournments were granted on consent or for cause, the impartial hearing was held on June 11, 2012 and July 2, 2012. The parties opted to submit written closing statements which were due July 31, 2012. (T-259-60) The DOE’s closing statement was received on or about August 3, 2012. The Parent’s closing statement was received on or about August 7, 2012. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.
BACKGROUND
The Parent herein request tuition reimbursement for the student’s attendance at his private school for the 2011-2012 school year. (See Process Due Process Complaint “DPC”) The Parent alleges that the student’s June 13, 2011 Individualized Education Program (“IEP”) is procedurally and substantively flawed. (Id.) The Parent further alleges that there was no parental consent given for the evaluations conducted by the DOE, that the evaluations themselves are insufficient and that the “Parent Member” left the student’s Committee on Special Education (“CSE”) meeting on June 13, 2011 early. (Id.) The Parent visited the recommended DOE school and found it inappropriate. (Id.) Accordingly, the Parent unilaterally placed the student at his current private school. (Id.) The Parent requests tuition reimbursement and reimbursement for the student’s related services at the private school for the 2011-2012 school year. (Id.)
THE DOE’S CASE
The DOE states that it defends the student’s IEP dated June 13, 2011. (T-19) The student is a “ ” who has a history of . (T-19-20) The DOE attempted to remedy the situation by providing the student with a crisis paraprofessional, conducting a “Functional al Assessment” (“FBA”) and a “ Intervention Plan” (“BIP”). (T-20) The student has but also significant . (Id.) The DOE conducted a of the student in 2009, a psycho-educational evaluation in 2012, and an Educational Evaluation on March 2, 2011. (Id.) The recommended DOE school could have met the student’s every need. (T-20-1) The student could have also received a paraprofessional. (T-21) Student’s is not uncommon. (Id.)
The DOE called (2) witnesses to testify on its behalf and submitted (12) documents into evidence. The sum, substance and relevant part of the evidence on behalf of the DOE is incorporated in the decision below.
THE PARENT’S CASE
The Parent reserved on making an opening statement and ultimately did not do so. (T-21 & 143-5) The Parent’s arguments in support of her requests for relief is gleaned from the DPC as detailed above.
The Parent called (3) witnesses to testify on her behalf and submitted (15) documents into evidence. The sum, substance and relevant part of the evidence on behalf of 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; 02014 and 01-105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).
The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)
The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)
In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)
I first turn to the question of whether the 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. (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 , 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 IEP dated June 13, 2011 indicates that the CSE team was composed of a special education teacher/related service provider, the Parent, a district representative, a social worker, a , a Parent Member and a special education teacher. (T-31, 223-4 & D-1) In the DPC and at the hearing, the Parent alleges that the student’s then current teacher did not participate for the entire review meeting and that the Parent Member left the meeting left the meeting for over an hour. (T-31, 224-5 & DPC)
8 NYCRR § 200.3(a)(1)(viii) states:
200.3 Committee on special education and committee on special education.
(a) Each board of education or board of trustees shall appoint:
(1) committees on special education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely evaluation and placement of students. The membership of each committee shall include, but not be limited to:
(viii) an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years. Such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting; (emphasis added)
In this case, the student the student was being reviewed by the CSE for the first time as she was aging out of . (DPC) The Parent alleges that she was not really given the opportunity to review the student’s Educational Evaluation at the CSE meeting or prior to the meeting. (T-226 & D-12) The record also indicates that the student’s teacher was not given the opportunity to review the evaluation prior to the meeting. (T-225 & D-12) The student’s is a central issue in the case, but the Parent testified that she had never heard of the term “FBA” and that is was not discussed at the meeting. (T-235-7) The Parent stated that she did not see that student’s FBA or BIP until after the CSE meeting. (T-237) These facts and circumstances evidence a lack of opportunity for the Parent to meaningfully participate in the CSE meeting on June 13, 2011.
It was the duty and responsibility of the CSE to ensure the Parent could effectively participate at the CSE review. SRO Decision 02-013 provides relevant analysis in this regard:
It is well settled that an IEP prepared by an invalidly composed CSE is a nullity (Application of a Child with a Disability, Appeal No. 99-27;
Application of a Child with a Disability, Appeal No. 95-8). Respondent argues that petitioner did not raise the issue of a parent member of the CSE at the hearing. I note, however, that petitioner’s attorney inquired of respondent’s witnesses whether a parent member was present.
The law requires that an additional parent member participate in the CSE meeting unless the student’s parents have affirmatively requested that the additional parent not participate (Educ. Law § 4402[b][1][a][viii]). I disagree with the hearing officer that the parent effectively waived the presence of a parent member simply on the basis of attending the meeting with an advocate, and because she failed to complain at the meetings or at the hearing. A parent must affirmatively request that the parent member not attend the meeting in order to waive the requirement, which is otherwise mandatory (8 NYCRR 200.5 [c][2][v]; Application of a Child with a Disability, Appeal No. 01-096;
Application of a Child with a Disability, Appeal No. 01-079)….There is nothing in the record to suggest that petitioner requested in writing that the parent member not attend the 2001-02 annual review….
Respondent argues that the role of the parent member was filled by the parent’s legal advocate, especially since she resided in the district and had a child with a disability. I do not find this argument persuasive, as it is the school district’s responsibility to have a properly composed CSE, including a parent member appointed by the Board of Education. Since there was no parent member of the CSE present any of the three annual review meetings, the 2001-02 IEP was not prepared by a validly composed CSE and is a nullity. I therefore do not need to discuss the other procedural and substantive issues related to the IEP.
I also find that the June 13, 2011 IEP in this case is a nullity because it was not properly constituted under law. Accordingly, I also find that the DOE failed to offer the student a FAPE for the 2011-2012 school year. Notwithstanding the same, I further note for the record that the June 13th IEP’s goals are generally focused on the student’s and although he tested within the “ . (D-1 & D-12) The private school provided an “ ” report, which recommended continuation of the student’s (D-5) The student’s June 13th IEP does include goals, but does not specifically proscribe a “ ” for the student. (D-1) It is also important to note that the student’s previous placement in the DOE recommended “ ” setting at the private school did not work according to the Parent. (T230-4)
While school districts are required to comply with all IDEA procedures, it is also true that not all procedural errors render an IEP legally inadequate under the IDEA. (See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE. (See J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]) The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement." (See Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), In other words, the IEP must be likely to provide some "meaningful" benefit. (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]) In the case at bar, I believe that the IEP’s procedural and substantive failures cited above also render the document legally flawed.
I next turn to the question of whether the student unilateral private school placement is appropriate. Here, the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)
As stated above, the student’s in this case. (T-170 & supra) At the private school, the student is in a class with a setting that allows for his managed. (T-171-2) The private school also has a specific plan to address the student’s s and a “token system.” (T-182-5) There is evidence that the student has progressed at the private school regarding his by learning how to appropriately get and in terms of his “ ” skills. (T-188) The student does not and has (Id.) The private school has and supports which have allowed the student to and . (T-191-2) The student’s is estimated to have ) minutes. (T-192) He also receives his and a week at the private school as well as . (T-189-92) Academically, the student’s at the private school and he is . (T-176-7) The student’s at the private school and he is now said to be . (T-178) Finally, the student’s at the private school and is . (T-181)
The private school has successfully targeted the student’s , his . The private school program also targets the student’s and his . What’s more, the student is benefiting from his private school instruction by and maintaining grade level academics. For all of these reasons, I find that the private school provides educational instruction specially designed to meet the student’s unique needs and allows him to benefit from instruction thereat. (Gagliardo and Frank G., supra)
There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. She attended the student’s CSE meeting on June 13, 2011 and provided the agency with access to the student’s private school teacher and reports. (T-228, 234 & D-1) She also visited the recommended DOE school and provided the agency with notice of her determination that the school was inappropriate for the student. (T-87, 239 & P-
E) Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parent. For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that she has met her burden under Schaffer to prevail in her request for tuition reimbursement.
NOW therefore, it is hereby
ORDERED that the Parent’s requested relief is GRANTED and upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent for the cost of the student’s tuition at the private school and for his receipt of related services thereat for the 2011-2012 school year; and it is further Dated: November 28, 2012
_______________________________
EDGAR DE LEON, ESQ.
Impartial Hearing Officer
ED:jj
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Impartial Hearing Request, 2/21/12, 3 pp. B Amended DPC, 2/27/12, 3 pp. C Letter from Principal, 5/5/12, 1 p. D Due Process Response, 3/8/12, 4 pp. E Letter from Principal, 2011-2012, 2 pp. F Proof of Payment, Various Dates, 3 pp. G Subpoena to Rosenstock, 4/12/12, 3 pp. H Subpoena to Nicoletti, 4/12/12, 5 pp. I Letter from Parent, 7/15/11, 1 p. J Education Plan, 2011-2012, 7 pp.
DEPARTMENT OF EDUCATION
1 IEP, 6/13/11, 10 pp. 2 Social History Update, 12/21/10, 1 p. 3 Educational Evaluation, 1/4/11, 3 pp. 4 Speech and Language Report, 12/22/09, 4 pp. 5 Annual Review, 12/6/10, 2 pp. 6 Physical Therapy Evaluation, 12/21/10, 2 pp. 7 Social History, 2/10/09, 2 pp. 8 Psychological Report, 2/5/09, 5 pp. 9 Psycho-Educational Evaluation, 4/16/12, 8 pp. 10 BIP and FBA, 6/13/11, 3 pp. 11 Parental Declination Letter, 8/23/11, 2 pp. 12 Educational Evaluation, 3/2/11, 2 pp.