New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No.

SED ID No.

Student’s Name:

Date of Birth:

District:

Hearing Requested by: Parents

Dates of Hearings: October 6, 2011

November 1, 2011

December 15, 2011

February 3, 2012

July 24, 2013

September 11, 2013

Record Close Date: October 18, 2013

Hearing Officer: Mindy G. Wolman, Esq.

On July 13, 2011, the parents (the “Parents”) (the “Student”), filed a due process complaint, under the Individuals with Education Act, 20 U.S.C. section 1415(f) and Section 4404(1) of the New York State Education Law, against the New York City Department of Education (the “DOE”). I was appointed as impartial hearing officer (“IHO”) on July 23, 2013, upon a remand from the State Review Officer (“SRO”).^[1]

This matter has a somewhat complicated procedural history. Hearings were held on October 6, 2011, November 1, 2011, and December 15, 2011. The IHO who presided at those hearings recused himself, and a new IHO was appointed. That IHO presided at a hearing held on February 3, 2012; he closed the hearing record on June 1, 2012, issued a decision on June 27, 2012, and a corrected decision on August 1, 2012 (IHO Ex. I) The corrected decision included corrections made to the exhibit list (IHO Ex. I at 18). The decision denied the Parents’ tuition reimbursement claim based the lack of standing. The Parents appealed that decision to the SRO, and the SRO issued a decision on July 5, 20132.

The SRO sustained the appeal, noted that there was an inadequate hearing record regarding certain deposits paid to the School, and remanded the matter for a determination on the merits of the Parents’ claims; in light of allegations made regarding IHO misconduct, the SRO directed that the matter be remanded to new IHO (IHO Ex. II at 14-15).

As noted above, I was appointed as IHO on July 23, 2013. A pre-hearing conference was held on July 24, 2013, and a substantive hearing was held on September 11, 2013.

The compliance date for issuing a decision in this case was extended to October 23, 2013 (see IHO Exhs. V and VI). Lists of the persons who appeared at the hearings and the 2 The SRO decision refers to the original June 27, 2012 IHO decision, it does not mention the August 1, 2012 corrected decision. It is not clear why the SRO decision was issued over a year after the June 27, 2012 decision. documentary evidence submitted are appended to this Order.

BACKGROUND AND POSITIONS OF THE PARTIES

is an year old female student who is classified as a student with a having “ years old when this action was commenced). Her classification and her eligibility for education supports and services are not in dispute. This proceeding involves the Parents’ request for tuition reimbursement and prospect/direct tuition funding for the Student’s 2011-2012 twelve month (extended school year, or “) unilateral . The Parents placed the Student at during the Summer of 2011, and at the School (“” ) for September 2011 through June 2012.

The Committee on Education (“CSE”) convened a review meeting for the 2011-2012 school year on February 2, 2011. As a result of that meeting, the CSE prepared an Individualized Education Program (“IEP”) which recommended that the Student be placed in a in a ized school, with a full- , The DOE maintains that the February 2011 IEP was prepared by a duly constituted CSE team that considered sufficient materials. The DOE further asserts that the CSE’s program recommendations were appropriate and were reasonably calculated to enable the Student to make , and that the Student’s education needs would have been met in The Parents also assert that the Summer 2011 at and the September 2011 through June 2012 wereas appropriate. They maintain that both programs provided the Student with education programs that were designed to enable the Student to make educational , and that the Student in fact made in both programs. In addition, the Parents maintain that equitable factors support their tuition reimbursement claim. In light of their financial situation, the Parents request that the DOE be directed to fund the and School programs by issuing payment directly to the programs in addition to reimbursing the Parents for whatever payments they have made to date.

The DOE presented the testimony of a school who performed a classroom of the Student and who participated in the February 2011 CSE meeting and of the education teacher from the Both of the Parents testified at the hearing. The Parents also presented the testimony of the principal from the Student’s program, the director and the Student’s education teacher from , the program director and the student’s education teacher from the School, and the Student’s Both parties submitted documentary evidence. The parties also submitted post-hearing memoranda of law.^[4]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The IDEA provides that children with are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of ized education and related services designed to meet a student’s needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982])

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. Department of 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].

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental has the burden of persuasion and burden of production on the appropriateness of such ( NYS Educ. Law § 4404(1)(c)).

The Parents raise several substantive and procedural challenges to the CSE’s program and recommendations. I reject their contention that the proposed program and was inappropriate because the CSE met in February, which before the school year began. The Parents assert that the goals would have been stale before the new school year began in July. Although February 2 was a little on the early side, the reason proffered by the DOE (Tr. at 29) was reasonable. Had the Student made significant between February and the end of the school year, the Parents could have requested that the CSE reconvene to update the goals. Therefore, the timing of the CSE meeting does not, in and of itself, render the CSE’s recommendations inappropriate.

The Parents also challenge the substance of the IEP goals. They maintain that the goals did not address all of the Student’s needs. The IEP contained goals to address The Parents note that the IEP goals and objectives (Ex. B) were pretty much taken directly from the School December 2010 report (Ex. E), and that although the report included twenty objectives, the IEP contained only 14 objectives. The fact that the IEP included fewer goals and objectives than contained in the School report, does not, in and of itself, render the IEP deficient. The Parents’ post-hearing memorandum of law did not identify the specific areas of need that were not addressed in the CSE’s IEP goals and objectives. Although it is true that the IEP prepared by the CSE did not include all of the goals and objectives contained in the School report, the goals were sufficiently comprehensive.

That being said, several of the Parents’ remaining challenges render the CSE’s program and recommendations inappropriate. The CSE’s proposed school for the Student would not have been appropriate. There was considerable debate over which Final Notice of Recommendation (“FNR”) is the relevant FNR for the purposes of determining whether the CSE offered the Student an appropriate .5

There was also considerable debate over whether the June 9, 2011 FNR for P.K@P. (Ex. AA) should be admitted into evidence (see IHO Exs. VII, VIII, IX, , and XI).

I reject the DOE’s contention that DOE Exhibit 3 was the FNR that was sent to the Parents. The Student’s mother testified that she received Parent Exhibit R, and that she did not receive DOE Exhibit. 3. Her testimony was uncontroverted and I have no reason to doubt it. By contrast, the DOE did not offer any testimony to support its contention that DOE Exhibit 3 was actually sent to the Parents. Simply put, there is no proof that Exhibit 3 was ever mailed to the Parents. Moreover, the Parents were in possession of Parent Exhibit R. The only way that they could have been in possession of the document was if someone at the DOE had in fact issued it and mailed (or otherwise delivered) it to them.

As such, I find that that was included in the hearing record as Parent Exhibit R was the FNR that was actually sent to the Parents. I further find that the FNR was defective because it did not set forth the address of the school. As such, the Student’s mother was unable to ascertain where the was. She was unable to tell which borough the school was located in and was unable to obtain additional information despite having made numerous telephone calls to the telephone contact number listed on Parent Exhibit R (Tr. at 485-486, 488-489).

During cross-examination, the DOE asked the Parent about her familiarity with Yahoo and Google, and whether she had tried to find the school’s location on Yahoo.com or the DOE’s website (Tr. at 497-8). The Parent indicated that she had not, and that she was not very “ Tr. at 498). As a preliminary matter, in order for an FNR to provide appropriate notice of the offered , it must clearly identify the location; it must include the school address or some other sufficiently clear information about the school’s location. By simply listing the school not even clearly identify the borough in which P . Moreover, the DOE cannot shift the responsibility for identifying the school location by implying that the Parent (regardless of whether or not the Parent is well- to find the DOE’s website or to seek out in order to obtain information about where a given school is located. The Student’s mother properly, and diligently, to get more information regarding the location of the proposed by calling the telephone number set forth on the notice. She was unable to obtain any additional information.

Although the CSE may bifurcate the program and process, and while it need not list the actual school on a student’s IEP, it must still identify the proposed in a written communication to parents (to wit, the requirement for “prior written notice” for a proposed change in a student’s education program or ). The notice that was sent to the Parent (Ex. R) did not do so. As such, the DOE did not timely notify the Parent of the CSE’s proposed . The Parent did not learn the location of the P. until the first hearing date in this proceeding.

Even assuming that the defect in the FNR that was sent to the Parents was a procedural defect that did not give rise to a FAPE deprivation, the proposed at was not appropriate for the Student. This constituted a substantive deprivation of FAPE.

The IEP would not, and indeed could not, have been properly implemented at the proposed .

Based on the foregoing, I find that the DOE did not offer the Student a FAPE for the 2011-2012 school year. Having made that finding, I need not address any of the Parents’ other challenges to the CSE’s program and recommendations. The Parents have met the first of the three Burlington/Carter criteria for tuition reimbursement.

The Parents have the burden of proving that the unilateral was appropriate. In order to meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral provides “educational instruction specifically designed to meet the needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d . Cir. 2007]. However, the private school “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private need not provide certified education teachers or an IEP. Parental s are not subject to the same mainstreaming requirements as school district s. The private school must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce , not regression.

The standard to apply is whether "[the] unilateral private ... provides educational instruction specifically designed to meet the needs of a child" Gagliardo, 489 F.3d at 115):

No one factor is necessarily dispositive in determining whether parents' unilateral 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 consider the totality of the circumstances in determining whether that reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private furnishes every service necessary to maximize their child's potential. They need only demonstrate that the provides educational instruction ly designed to meet the needs of a child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo. 489 F.3d at 112 (quoting Frank G , 459 F.3d at 364-65).

In this case there are two separate unilateral s. During the summer of 2011, the Parents unilaterally placed the Student at . During the period September 2011 through June 2012, the Parents unilaterally placed the Student at the School. Each of these s needs to be analyzed separately.

The program was based on the Student’s IEP and was individually tailored to meet her needs. It was designed to enable the Student to make , and she did, in fact, make . Although the age range was class, it was an appropriate class for her summer program. The students were placed in the class based on their levels, and were thus suitably grouped for instructional purposes. The hearing record included extensive (uncontroverted) testimony about the program and the manner in which it was designed to meet the Student’s education needs. Based on the foregoing factors, I find that the program was an appropriate for the Student for the Summer of 2011. The School

Having considered the testimony and documentary evidence presented at the hearing, I find that the Parents produced substantial credible and convincing evidence in support of their contention that the School met the Student’s education needs and provided her with instruction that was ly designed to meet her needs. The various challenges raised by the DOE do not warrant a finding that School was not appropriate. I therefore find that the School was an appropriate for the Student for the 2011-2012 school year.

The Parents have therefore met the second of the three Burlington/Carter criteria for tuition reimbursement for both the and the School .

Turning to Prong 3, I find that there is nothing in the Record that would preclude, or limit, reimbursement on equitable grounds. The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. Tuition reimbursement may be denied when a parent has (by action or inaction) interfered with the CSE , program and process.

The DOE maintains that tuition reimbursement should be denied on equitable grounds because the Parents did not establish financial need for prospective funding and because the Parents never seriously considered a public school . The issue of the prospective funding is best addressed after a determination has been made as to whether or not tuition reimbursement is warranted under the three-pronged Burlington/Carter analysis.

The DOE’s claim that the Parents never seriously considered a public school is not supported by the Record. The Parents received two FNRs for the 2011-2012 school year. On June 11, 2011, the CSE issued an FNR for P.K@P. (Ex. AA), and on June 15, 2011, the CSE issued two FNRs for P. at P (Exs. R and 3). The Parents received the P.K@P. FNR and one of the P.K@P FNRs (they received Exhibits R and AA). The receipt of two different FNRs caused considerable confusion for the Parents. Upon receipt of the FNRs, the Student’s mother followed up with telephone calls and correspondence. Based on the information that the Parents were able to obtain, it was their understanding that the P.K@P. was the one that had been offered. The Parents thought that the P. at P. offer was sent in error because the FNR was partly handwritten, and because it was issued by a different region. The Student’s mother visited the P.K after it opened and was operational in September of 2011 (the P.K@P.K was not yet operational when the FNR was sent in June of 2011).

The Parents wrote to the CSE about the P.K on four occasions (Exs. D at 1-3 and S at 1). There was no response from the CSE. The Student’s mother also made multiple telephone calls to the phone number that had been listed on the P. at P. FNR but was unable to obtain any information: “I ” (Tr. at 486). The Parents were not aware, until the October 2011 hearing in this case, that the DOE believed that the correct offer was the P. ; this was also the first time that the Parents were provided with contact information and location information for P. at P. (Tr. at 492; see also Exh. S at 2). Once they had this information, the Parents promptly scheduled a visit to P. at P.. The testimony at the hearing leads me to conclude that the Parents seriously considered a public school and diligently sought information about the CSE’s proposed s. Although the DOE maintains that only one offer was made, it is clear from the documents that the Parents received (Exs. R and AA) that two different s were offered.

The DOE notes that the Parents signed the contracts for the School and in May of 2011 and that they “failed to notify the CSE that they had done so” (IHO Ex. IV at 18). As of the dates of the two contracts, over three months had passed since the February 2, 2011 CSE meeting, and the CSE had yet to send the Parents an FNR for the school year that would be beginning on July 1, 2011.

The School contract clearly provides that the Parents would be released from the contract upon notice (to be sent no later than September 7, 2011) that the Student has been enrolled in a NYC DOE public school in accordance with an IEP prepared by the CSE (Ex. C at 2; see also Tr. at 247-248). The Parents’ only liability in such situation would be the $2,500.00 nonrefundable deposit (Ex. C at 5; Tr. at 248).

The May 5, 2011 contract cited by the DOE was not in fact a contract signed by both parties; instead it was a letter signed by the director indicating that the Student had been accepted for the program “pending SED approval” (Ex. L at 1). There is no contract that was signed by the Parents. The hearing record includes two invoices sent by on August 23, 2011 reflecting the amount that was due to the for the Summer of 2011 (Ex. O).

The Parents sent notices to the CSE regarding both the and the School s (Ex. D at 1, 2 and 3; Ex. S).

Tuition reimbursement may be denied if a parent never had any intention of sending a child to a public school and simply “went through the motions” of the CSE referral and process in order to obtain tuition reimbursement.^[7] However, that is not what happened in this case. The Parent cooperated with the CSE and expended substantial efforts in trying to obtain a public school for their child. They continued to work cooperatively with the CSE after receiving the two FNRs (phone calls, correspondence, etc.). There is no evidence to suggest that the Parents had decided to send the Student to and the School prior to the February 2, 2011 CSE meeting. That decision was not made until much later, when the Parents determined that the that had been offered was not appropriate for their child.

Moreover, there is no evidence in the hearing record that would suggest that the Parents interfered with or hindered the CSE and program / process in any way. The Parents did not withheld consent for s, , or s.

Based on the foregoing, I find that equitable factors support the Parents’ claim for reimbursement. The Parents have therefore met the third of the three Burlington/Carter criteria for tuition reimbursement. As such, the Parents are entitled to reimbursement for the cost of the Student’s Summer 2011 at and the Student’s September 2011 through June 2012 at the School. Prospective Funding/Direct Payment

The Parents request that the DOE be directed to reimburse them for any costs they have already incurred for the and School enrollments, and that it pay for the balance of the enrollment costs by issuing payment directly to and the School. “Prospective funding” (See Connors v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y., 1998)) and “retroactive direct tuition payment”(See Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011)) are appropriate remedies in due process proceedings seeking payment for unilateral s.

Prospective funding was addressed in Connors v. Mills: “Once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral in the non-approved school, the public school must pay the cost of private immediately" (Connors v. Mills at 805-806).

Retroactive direct tuition payment was addressed in Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ: “[W]here a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief. A contrary ruling would be entirely inconsistent with IDEA's statutory purpose, including the goal of ensuring a FAPE to the least privileged of the children in our nation” Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., at 428.

The Parents maintain that they do not have the financial resources to pay for the cost of the and School enrollments. Their 2010 income tax return reflects total adjusted gross income for the family in the amount of $13,129.00 (Ex. J). They borrowed the sum of $5,000.00 to pay the School deposit from the Student’s paternal (Tr. at 500). The Student’s mother is unemployed; she testified that the (Tr. at 504). They do not own a home (Tr. at 504). The Student’s mother testified that her The DOE makes much of the fact that the Student’s mother did not have information about the income and expenses of (IHO Ex. IV at 16). Notwithstanding her lack of knowledge about ’s finances, the Student’s mother did have knowledge about the family’s total income, which was reflected in the 2010 tax return. DOE’s allegations regarding hidden income are speculative, at best, and would require me to find that a prepared, and the Parents signed, a fraudulent tax return. There is no reason for me to believe that the tax return is inaccurate or fraudulent. As such, it appears that the total family income for 2010 was $13,129.00, which is much too low to be able to afford the School and tuition.

Since the 2010-2011 school year has long-since ended, the tuition award is more in the nature of retroactive direct tuition funding, as opposed to prospective funding. All services for the 2010-2011 school year were provided over two years ago.

The fee was $9,000.00, with an additional $3,500.00 for the cost of a (Ex. O). The $9,000.00 fee is broken down into tuition for education: $6,000.00 for educational services, which includes $3,300.00 for educational services and $2,700.00 for services (related services) (Tr. at 548-550), and $3,000.00 for the after-school ( portion of the day (Tr. at 550). The Parents do not seek reimbursement for the $3,000.00 after school portion of the fees (Tr. at 550). The DOE has reportedly paid for $3,300.00 for educational services, but has not paid for the related services and services (Tr. at 549-550).

As noted above, the document that is described as being a contract for (Ex L) is not, in fact, a contract. Although the world “Contract” appears at the top of the document, it does not set forth the terms of any agreement. The cost is not set forth, and the document was not signed by either of the Parents. The document, which is addressed as a letter directed to “To Whom It May Concern,” reads as follows:

[ has been accepted to attend the , Summer Program for the period July/August 2011 pending SED approval.

will be providing services to [] according to his/her IEP goals.

(Ex. L)

The document was signed by the Director, but did not have any place for a parental signature. Since the Student’s acceptance was contingent on SED approval, it appears that as of the time of the “Contract,” was anticipating that the Student’s attendance at the program would be publicly funded. There is no evidence to suggest that the Parents were financially responsible for the cost of the as of the time of the Student’s acceptance into the program or as of the time that she began to attend the program.

In addition, only one of the invoices for the cost of the was actually directed to the Parents (Ex. O at 2). The other invoice did not list the party to whom the invoice was directed (Ex.O at1). The invoice for services (which was the invoice that did not list the person or entity obligated to whom it was directed) was issued on August 23, 2011 (Ex. O at1). The invoice for services and educational services (which was directed to the Parents) was issued much later, on October 5, 2011 (Ex. O-2).

As such, the record does not support a finding that the Parents were financially responsible for paying for the cost of the . Under the circumstances, I decline to award prospective funding or direct payment for the cost of that . Based on the Burlington/Carter analysis set forth above, the Parents are entitled to reimbursement for the cost of the educational services, services (which were related services), and services to the extent that they actually paid for the services.^[8] However, in the absence of any proof that the Parents are contractually obligated to pay for those services, prospective funding/direct payment is not appropriate.

The School contract (Ex. C) clearly sets forth the Parents’ obligation to pay for the Student’s 2011-2012 enrollment at the school. Both Parents signed the contract (Ex. C at 4). The total cost of the enrollment was $78,960.00 (Ex. C at 4 and 6). The addendum to the contract (Ex. C at 5-6) contemplated that the Parents would be seeking direct prospective funding by the DOE and provided that if payment were not received by June 1, 2012, “a new Payment Schedule may be put into place and the remaining balance may become due immediately” (Ex. C at 1).The agreement further provided that:

If Parent(s) does/do not qualify financially for prospective payment of tuition or Parent(s) are/is denied payment by a final decision resolving their claim for prospective payment of tuition, Parents will remain responsible for tuition costs per the Enrollment Agreement and the balance of the tuition will be due immediately.

(Ex. C at 6).

As such, unlike the enrollment, it is clear that the Parents are financially responsible for the cost of the 2011-2012 School enrollment. (Tr. at 504-505). She did not have any knowledge regarding the finances and expenses of (Tr. st 504-506). The DOE maintains that an inquiry into ’s finances is “necessary in any determination as to whether or not the family has the means to afford the tuition” (IHO Ex. IV at 17).

I find that an inquiry into is not necessary in order to rule on the Parents’ request for prospective payment. The Student’s mother testified about the family’s limited financial means and inability to afford the tuition.^[9] Since she is not involved in , it was not unreasonable for her to lack knowledge about its finances.

The Parents’ 2010 federal income tax return was a 1040A form, which was prepared by a , lists the family’s income under the “wages, salaries, tips, etc.” category. The income was not listed as self-employment income. Had it been self-employment income, the income and expenses would have to have been included in a schedule annexed to the return.^[10] Based on the tax return, it appears that ” in the legal sense of the word. Instead, he It is clear that the only income available to the family as of the 2010-2011 school year was the $13,129.00 wages or salary listed on the return (plus the earned income credit, making work pay credit, and additional child tax credit to which they were entitled based on their tax return). These tax credits entitled the Parents to additional income in the form of a tax refund in the amount of $7,985.00 (Ex. J at 2).

The family’s income of $13,129.00, even when supplemented by the $7,985.00 tax refund, was much too low to enable the family to pay the nearly $80,000.00 cost of the School enrollment. In fact, the income was below the federal poverty level.^[11] The Parents could not be reasonably expected to pay the School tuition. It is also clear, from the unrebutted testimony of the Student’s mother and father, that as a result of the family’s limited financial resources, the Parents needed to borrow funds from a third party in order to pay the School deposit and to make the subsequent payment required by the terms of the Contract Addendum (Tr. 500, 502,

536). The third party was the Student’s paternal .

The first two checks to the School for the 2011-2012 school year were issued by the (Exs. K and Z). The Company is owned by Mr. father (he is the sole ) (Tr. at 534). The payments were made as a back (Tr. at 534). As of the September 11, 2013 hearing, the Parents had paid back most of the borrowed funds (Tr. at 534).

The Parents paid a total of $12,500.00 toward the School 2011-2012 tuition (Tr. at 535). There were two payments, one in the amount of $5,000.00 and one in the amount of $1,500.00, with borrowed funds from (Exhs. K and Z), and three payments directly from the Parents in the amount of $2,000.00 each (Exhs. Y). The Parents are entitled to prompt reimbursement for the enrollment costs paid to date.

Per the School contract, the total enrollment cost for the 2011-2012 school year was $78,960.00 (Ex. C at 1; Tr. at 542). The balance remaining due is $66,460.00. Pursuant to the terms of the enrollment contract, the Parents are financially responsible for paying the entire School tuition. As is clear from the discussion above, they do not have the financial means to do so. Since the 2011-2012 school year has ended and all services to be provided pursuant to the enrollment contract for that school year have already been provided, funding would no longer be “prospective payment.” Instead, it would be “retroactive direct tuition payment” which is an appropriate form of relief in light of the Parents financial situation (see Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., at 428).

ORDER

IT IS HEREBY

ORDERED that the New York City Department of Education is directed to fund the Student’s 2011-2012 ten-month school year enrollment at the School in the total amount of $78,960.00 by making the following payments within twenty (20) days of the date hereof: reimbursement to the Parents in the amount of $12,500.00 and direct payment to the School in the amount of $66,460.00; and it is further

ORDERED that the New York City Department of Education is directed to reimburse the Parents for the $6,000.00 cost of the Summer of 2011 educational services at and for the $3,500 cost for services during the Summer of 2011 at ; reimbursement shall be issued to the Parents within twenty (20) days of the submission of proof of payment (however, the Department of Education will not be obligated to reimburse the Parents if it already made payment directly to for the aforementioned services.

Dated: October 23, 2013

MINDY G. WOLMAN

Impartial Hearing Officer

APPEARANCES AT THE OCTOBER 6, 2011 HEARING

Esq. Attorney — Parents

of Education — Parents

Esq. Attorney (by telephone) — Parents

APPEARANCES AT THE NOVEMBER 1, 2011 HEARING

Esq. Attorney — Parents

Mother — Parents

* (by telephone) — Parents

* Director of (by telephone) — Parents

Esq. Attorney — DOE

* (by telephone) — DOE

APPEARANCES AT THE DECEMBER 15, 2011 HEARING

Esq. Attorney — Parents

Mother — Parents

* (by telephone) — Parents

* Teacher (by telephone) — Parents

* (by telephone) — Parents

* Education Teacher (by telephone) — Parents

* (by telephone) — Parents

Attorney (by telephone) — DOE

* Testified at Hearing — DOE

APPEARANCES AT THE FEBRUARY 3, 2012 HEARING

Esq. Attorney — Parents

Mother — Parents

Attorney — DOE

APPEARANCES AT THE SEPTEMBER 11, 2013 HEARING

Attorney — Parents

Mother — Parents

Father — Parents

Program Director (by telephone) — Parents

Esq. Attorney — DOE

* Testified at Hearing — DOE

DOCUMENTS ENTERED INTO THE RECORD

Parent Exhibits

A. Impartial Hearing Request, 7/13/11, 4 pp.

A. Individualized Education Program, 2/2/11, 15 pp.

B. School Contract for 2011-2012, May 2011, 6 pp.

C. Parent Correspondence to CSE: Letter, dated 6/29/11; email dated 6/23/11, 3 pp.

D. of by School, December 2010, 12 pp.

E. of by School, may 2011, 13 pp.

F. OMIT

G. End of Term Educational Assessment , August 2011, 4 p p.

H. OMIT

I. 2010 Taxes, 2/20/11, 2 pp.

J. Check payable to the School, 5/4/11, 1 p.

K. Contract, 5/5/11, 1 p.

L. Report, 2/18/09, 3 pp.

M. , 1/2210 3 pp.

N. invoice, 8/23/11, 2 pp.

O. Schedule, 2011, 1 p.

P. School Schedule, 2011-2012, 1 p.

Q. Final Notice of Recommendation (“FNR”), 6/1/11, 1 p.

R. Additional Parent Correspondence, 9/27/11 and 10/17/11, 2 pp.

S. OMIT

T. List, undated, 1 p.

U. , December 2011, 12 pp.

V. I of , June 2012, 14 pp.

W. MARKED FOR IDENTIFICATION ONLY

X. Cancelled Checks, March 2013, 3 pp.

Y. Check, 3/29/12, 1 p.

Z. Final Notice of Recommendation (“FNR”), 6/9/11, 1 p.

Department of Education Exhibits

1. OMITTED

2. CSE Minutes, 2/2/11, 1 p.

3. Final Notice of Recommendation (“FNR”), 6/15/11, 1 p.

4. , 1/13/11, 3 pp.

Impartial Hearing Officer Exhibits

I. Corrected Findings of Fact and Decision, 8/1/12, 19 pp.^[12]

II. , Appeal No. 12-152, 7/5/13, 15 pp

III. Parents’ Closing Brief, 3/2/12, 31 pp.

IV. Closing Brief and Memorandum of Law for the Department of Education, 2/24/12, 18 pp.

V. Summary of Pre-Hearing Conference, 7/24/13, 1 p.

VI. Emails from IHO re Compliance Date Extensions, 10/2/13 and 10/18/13, 2 pp.

VII. Emails from IHO and re Hearing Record, 10/18/13, 1 p.

VIII. Email from , 10/18/3, 1 p.

IX. Email from , 10/18/13, 1 p.

X. Email from IHO, 10/18/13, 1 p.

XI. Email from IHO, 10/20/13, 1 p.

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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.

(8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

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Footnotes

[1] I note that I had been previously appointed in this case (prior to the appeal to the SRO and the SRO remand) on January 25, 2012. I recused myself at that time because I was not available on the scheduled hearing date and did not have any other available hearing dates within the regulatory time frame.

[4] The memoranda of law were submitted after the February 3, 2012 hearing (prior to the SRO appeal). Additional memoranda were not submitted a part of the remanded case.

[7] See J.P. v. NYC Dep’t of Educ., 2012 WL 359977 (E.D.N.Y. 2012); Werner v. Clarkstow Central Sch. Dist., 363 F.Supp.2d 656 (S.D.N.Y. 2005).

[8] The Parents are not seeking reimbursement for the 3,000.00 fee for the after-school “camp” portion of enrollment cost because that part of the day was not “education” (Tr. at 550). In addition to reimbursement for the educational services and ( ), the Parents are entitled to reimbursement for the cost services at . The Student required services during the Summer of 2011. She still had a feeding. In addition, the Student’s IEP mandated that she receive the services of a .

[9] Although I did not preside at the hearing at which the mother testified (February 3, 2012), I have no reason to believe (based on my review of her testimony and the documentary evidence in this case) that her testimony was not truthful (having not presided at the hearing, I cannot rely on my observations of the testimony in order to assess credibility). I did, however, have the opportunity to observe the testimony of both Parents at the September 11, 2013 hearing. I find them both to be credible and convincing witnesses.

[10] Self-employment income and expenses must be set forth on Schedule C to IRS Form 1040.

[11] The Student’s family consisted of As of August 2010, the federal poverty $25,790.00 (Federal Register, August 3, 2010, Vol 75, No. 148, pp 4628-45629).

[12] At the September 11, 2013 hearing, the parties advised me that no IHO exhibits had been entered into the Record. In addition, the 2012 Findings of Fact and Decision in this case did not list any IHO exhibits.. As such, I started marking my IHO exhibits with IHO Ex. I. However, when reviewing the Hearing Record in order to prepare this decision, I noticed that IHO had entered an Exhibit into the Record as IHO-I. I was not supplied with a copy of that exhibit, and do not know if it was included as part of the Record on Appeal in the 2012 appeal to the SRO.