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: September 12, 2013

October 2, 2013

Actual Record Closed Date: October 18, 2013

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 12, 2013

For the Student:

, ATTORNEY

, PARENT

For the Department of Education: Representative (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 2, 2013

For the Student:

, ATTORNEY

PARENT

For the Department of Education: Representative (Via Telephone)

INTRODUCTION

On June 27, 2012, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Education Act (IDEA), 20 U.S.C. §1415(f).

A pre-hearing conference was conducted on August 26, 2013 where dates were set to commence hearing. appeared for the Department of Education (DOE) and no appearance was made for the student.

A hearing on the merits was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence. Post hearing submissions were not requested, nor submitted.

Parent commenced this matter through hearing request, dated July 18, 2013, seeking tuition reimbursement for parental placement at the School ( ), and provision of related services, for the 2012-2013 school year. As hearing commenced after the conclusion of the 2012-2013 school year, only the issue of reimbursement remained. (Ex A)

On September 11, 2013, the DOE representative, , requested aournment of the September 12, 2013 hearing date due to her being just assigned to the Impartial Hearing Unit the previous day. Aournment request was denied.

A motion to extend the compliance date, an additional thirty days, was made on Sepetmber 12, 2012, by parent attorney, based upon the need for parties to obtain witnesses and for case preparation. Motion was granted, on September 12, 2012, and the compliance date was extended to October 30, 2012.

Motion made on September 12, 2013 did not appear in the Impartial Hearing officer system.

A motion to extend the compliance date, an additional thirty days, was made on September 30, 2012, by parent attorney, based upon the need for parties to prepare their respective case presentation. Motion was granted, on September 30, 2012, and the compliance date was extended to 10/30/2012.

DOE offered four documents to the IHO, intended as evidence. Parent objected to these documents as they had not been previously disclosed to the parent. IHO upheld the objection and denied the submission of the DOE documents. (T 10-11)

BACKGROUND

At the time of the (January 2013) the student years of age, diagnosed with ), , in partial remission, and .

THE PARENT’S POSITION

( ) presented the case for the parent and student.

Parent position was outlined in Due Process hearing request, dated 07/18/2012, seeking tuition reimbursement for , for the 2012-2013 school year. (Ex A)

, in an opening statement, alleges the parent referred the student to the Committee on Education (CSE) on 03/20/2013, the student had previously exhibited while in public school, the DOE did nothing to meet its obligation to and provide services to the child, in violation of the Individuals with Education act, and DOE should be held to reimburse parent for placement at and tuition relative to student attendance at , for the 2012-2013 school year. (IDEA) (T 12 & 130 & Ex G)

Regarding the testimony of , contends that despite the child ending his attendance at public school, the DOE had an obligation to continue the process. (T 60)

In closing contends that the parent had numerous conversations with the school regarding their concerns for their son. Parent did not receive a response to their request of 03/20/2013 for s. (T 134-135 & Ex G)

DOE failed its affirmative duty under child find to identify the student as requiring an and the development of an IEP. (T 135)

PARENT WITNESS

() reviewed her professional and educational background and testified as a of . (T 64-65)

met the student in the spring of the current school year, 04/03/2013. (T 65-66)

PARENT WITNESS

DEPARTMENT OF EDUCATION POSITION

), DOE representative, presented the DOE case.

clarified some information regarding the and testimony of . The process of conducting the student’s stopped once the student left the . (T 57 & 59)

In closing contends the parent sent a letter to the DOE requesting an and unilaterally removed the student on 03/20/2013, therefore not giving the DOE enough time to respond to the request. (T 132)

Parents were aware of their child’s needs as far back as 2009, when they had obtained s, and were well aware that the school could do more in the way of education services for their child. (T 133)

is a certified and was available to the student whenever needed. initiated the process and the section process. The form was never returned. (T 133)

The DOE position is that they had until 06/24/2013 as a compliance date and parent are entitled only to tuition after that date. (T 133)

is not appropriate since it has not tried lesser intermediate measures for the student. (T 13)

DOE WITNESS

(), reviewed her professional and educational background, and testified as the the DOE. (T 14-15) describes her duties as: “Seeing and meeting with children, transcript s, program s, discharges and incoming students, finding alternate placements for them, attendance issues…And also I work with the education portion of our school, which is .” (T 15)

clarified her meeting with the children as: “…it could be basic . You know, it could be anywhere from answering a questions to changing a program, to seeing how they're doing. I check in with them.” (T 16)

was the student’s while he attended grade. (T 16)

In the grade the student’s schedule was arranged, for the first , so that he had one extra class where he could “get his work done”. (T 18)

DOE WITNESS

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Education Act (IDEA) (20 U.S.C. §§ 1400- 1482) are (1) to ensure that students with have available to them a FAPE that emphasizes education and related services designed to meet their needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A student is offered a FAPE when (a) the board of education 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, 458 U.S. at 206-07; 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 (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhineck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y.

F. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative hearing 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 (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]; 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]).

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 (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" (Rowley, 458 U.S. at 203). The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, but school districts are not required to "maximize" the potential of students with (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). 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'" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (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]; 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]).

An appropriate educational program begins with an IEP that accurately reflects the results of s to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), 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 education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a , Appeal No. 06-059. Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a child with a , Appeal No. 08-087).

The burden of proof is on the school district of demonstrating the appropriateness of the program recommended by the CSE. A parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

Boards of Education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and;

(3) equitable considerations support the Parent's claim (School Committee of the Town of Burlington v, Department of Education, Massachusetts, 471 U.S. 359 [1985]; Application of a Child with a , Appeal No. 01 -052). Further, t he fact that t he facility selected by t he Parent t o provide education services to the Child had not been approved as a school for children with by the State Education Department of the State of New York is not dispositive. (Florence Co. School District Four v. Carter by Carter, 510 U.S . 7 [ 1993] ).

The parent bears the burden of proof concerning the appropriateness of their unilateral placement. A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; 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]). 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 (Carter, 510 U.S. at 14). The private school need not employ certified education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a , Appeal No. 07-038; Application of a Child with a , Appeal No. 02-014; Application of a Child with a , Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]; see also Educ. Law § 4404[1][c]). "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…'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every service necessary to maximize the student's potential (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" (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 ly designed to meet the needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided education, the evidence did not show that it provided education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010]).

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 service necessary to maximize their child's potential. They need only demonstrate that the placement 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; see Frank G., 459 F.3d at 364-

65).

Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see 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. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that 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 by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *1314 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. F. 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, 41718 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-079; Application of the Dep’t of Educ., Appeal No. 07-032).

The IDEA allows that 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 student 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" (20 U.S.C. § 1412[a][10][C][iii][I]; see 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, the child, devise an appropriate plan, and determine whether a [FAPE] can be provided

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement 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 (Burlington, 471 U.S. at 370-71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).

Parent attorney refers to Section claims. These claims enforce the position that the DOE should have continued the process, even though the student was removed from the public school.

Section contains its own child find requirement which requires districts to annually "undertake to identify and locate every individual with a residing in the district's jurisdiction who is not receiving a public education." 34 CFR 104.32. The obligation extends to privately enrolled students and also to those children residing in hospitals and universities. The regulations implementing Section state that districts must "undertake to identify and locate every qualified person residing in the recipient's jurisdiction who is not receiving a public education." 34 CFR 104.32 (a). In addition, districts must take appropriate steps to notify students with and their parents or guardians about this child find duty. 34 CFR 104.32 (b). Section also states that a district must conduct an of students "who, because of , need or are believed to need education or related services." 34 CFR 104.35 (a). A school district, private or public agency or institution, or a parent may initiate a referral for a pre-placement , the same as under the IDEA. See generally 34 CFR 104.32. Unlike the IDEA, Section regulations do not address when, or whether, districts must obtain prior parental consent for initial s. Such consent has been deemed required because parental discretion is "an appropriate and necessary policy component at the initial phase." Letter to Durheim, 27 IDELR 380 (OCR 1997). See also OCR Senior Staff Memorandum, 19 IDELR 892 (OCR 1992) (indicating that districts may use Section due process hearing procedures when parents refuse to consent to initial s).

EDUCATION ELIGIBILITY

A determination must be made as to the student’s eligibility for education services.

The IDEA regulations define a "child with a " as a child with a specific physical, mental or condition, "who, by reason thereof, needs education and related services" (20 U.S.C. § 1401[3][A]. Regulations include is defined, as relevant here, as: having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that— (i) Is due to chronic or acute problems such as . . . diabetes . . .; and (ii) Adversely affects a child's educational performance. (34 C.F.R. § 300.8[c][9]; see 8 NYCRR 200.1[zz][10]). Accordingly, a child with a having an means "a child . . . as having . . . another . . . and who, by reason thereof, needs education and related services" (34 C.F.R. § 300.8[a][1]; see 20 U.S.C. § 1401[3][A]).

Whether a student's condition adversely affects his or her educational performance such that the student needs education within the meaning of the IDEA is an issue that has been left for each state to resolve (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 66 [2d Cir. 2000]). New York has chosen to resolve the issue on a "case-by-case" basis. (Corchado v. Bd. of Educ., 86 F. Supp. 2d 168, 176 [W.D.N.Y. 2000] [holding that the effect of each child's particular on his or her educational performance requires individual analysis as to whether the student's necessitates education]; Application of the Bd. of Educ., Appeal No. 10-005; Application of a Child Suspected of Having a , Appeal No. 07-086; Application of the Bd. of Educ., Appeal No. 02-066; see N.C. v. Bedford Cent. Sch. Dist., 2008 WL 4874535, at *1-*2 [2d Cir. Nov. 12 2008]; Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282, 294 n.6 [S.D.N.Y. 2010]; see also A.J. v. Bd. of Educ., 679 F. Supp. 2d 299, 306-11 [E.D.N.Y. 2010]).

. (Ex I-4, 7-7 & 10)

Parent testified as to the student’s school history, including services and issues. (T 111-113)

No explanation is given as to why the DOE took no action in December 2012 to move forward and complete s, determine eligibility, and draft an IEP for the student. Parent had moved forward and completed an and clasoom , while was in touch with the .

I find the student suffered from a condition that adversely affects his educational performance such that the student needs education services.

DOE FAILURE TO PROVIDE FAPE

Parent first sought of their child in December of 2012. (T 114 & 126) confirmed that the parent aed for an of the student in December of 2012. (T 18)

Parent was given a form the school staff provided, which was to be completed and returned to the school. (T 119-120)

was not sure if the report was given to the school. (T 119-121)

Parent was contacted regarding the , which was canceled and not rescheduled. (T 120)

clarified some information regarding the , and testimony of . The process of conducting the student’s stopped once the student left the public school. (T 57 & 59)

Appointment for the student was first scheduled for May 6, 2013. months after the parent first requested s. (T 50 & 52)

testified: “If I had seen a or an from a , I might have then suggested to then move on to the IEP. You don't start with an IEP. You try to do everything you can for the child and then eventually you would move on to the IEP. That would be--that's the least restrictive environment. Everyone is supposed to have a free and appropriate education.” (T 30)

No evidence is presented indicating what form was delivered to the parent and what process was moving forward within the DOE from December 2012

No evidence is provided to indicate the school sought a copy of the report, or contacted the NYU Child Study Center for a copy of any or report. does state that she was in touch with the student’s throughout his time at her school. (T 22-23)

No evidence was provided by the DOE indicating parental consent. (34 CFR 300.300)

DOE failed to complete s within 60 days of the request, sometime in December 2012, as required. (34 CFR 300.301 (c)(1)(i)

No evidence is provided that the DOE complied with procedures as outlined at 34 CFR 300.304, which state, in part: “(a) Notice. The public agency must provide notice to the parents of a child with a , in accordance with § 300.503, that describes any procedures the agency proposes to conduct.” (34 CFR 300.304 (a))

includes and recommendations for the student regarding his education. DOE process never moved forward appropriately to allow an opportunity for review of the report and implementation of any appropriate recommendations. (Ex I 12-14)

Even without the parent obtained reports the DOE was obligated to move forward on their own and complete the process and convene a team to determine eligibility and draft an IEP as appropriate. IEP must be assembled as indicated at 34 CFR 300.321.

DOE never completed the administration of so that the process to determine eligibility could be completed. “Determination of eligibility. (a) General. Upon completion of the administration of and other measures—(1) A group of qualified and the parent of the child determines whether the child is a child with a , as defined in § 300.8, in accordance with paragraph (b) of this section and the educational needs of the child…” (34 CFR 300.306)

School staff acknowledged student and acted in some way to address them, without the process and without an IEP. Student sought out and interacted on a regular basis with school staff members for support and was provided, in the class where he could “get his work done”. Testimony . (T 18 & 44)

I find the DOE failed to provide the student with a FAPE for the portion of the 2012/2013 school year after which the DOE was requested to the student and failed to do so. DOE acknowledges a request was made in December of 2012 and no evidence was provided that that request prompted DOE action, besides aing the parent to fill out a form.

EQUITIES

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see 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. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that 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 by the district, or upon a finding of unreasonableness with respect to theactions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see J.P. v. New York City Dep't of Educ., 2012 WL 359977, at *13-*14 [E.D.N.Y. F 2, 2012]; W.M. v. Lakeland Cent. Sch. Dist., 783 F. Supp. 2d 497, -06 [S.D.N.Y. 2011]; G.B., 751 F. Supp. 2d at 586-88; Stevens, 2010 WL 1005165, at *10; S.W. v. New York City Dep't of Educ., 646 F.Supp.2d 346, 363 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. F. 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]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61[S.D.N.Y. 2005]; see also M.C., 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of a Student with a , Appeal No.12-036; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

The IDEA allows that 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 student 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" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 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, the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (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 reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see Frank G., 459 F.3d at 376 [2d Cir. 2006]; M.C., 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

As previously stated herein the DOE failed to respond appropriately t the parent request for , first made in December 2012.

The DOE, at the time of the , seems to have accepted the student in his current state and took no action to or otherwise seek to provide any appropriate education services. includes a teacher report that the student takes up the most time and effort of any other student.

School personnel, aware of the services received by the student and in contact with the student’s , and aware of the , took no action to obtain any reports related to these parties or their actions. (T 22-24)

Parent, though acting upon the recommendations, of the , that were made for the home and environment, failed to provide a copy of the report to the school. (Ex I 12-14, T 119-121)

Parent testimony shows they were involved and active in their child’s education, remaining in communication with school personnel throughout their child’s education. (T 111-129)

Parent requested s in December 2012. Then the parent wrote to the CSE consenting for s on March 20, 2013. (Ex G)

Also on March 20, 2013, the parent wrote to the CSE advising that his child “…needs a that has an appropriate education program and services to meet his needs...” Parent continued to advise the CSE that he was unilaterally placing his child at and would be seeking tuition reimbursement. (Ex H)

Student started attending on 04/03/2013. (Ex E)

At any time from December 2012 the DOE could have provided consent documents, and s of the student and failed to do so. DOE did request the parent to have their complete what is testified to as a form and had an outside agency contact the parent for at social history to take place in May of 2013.

Parent testified that the student left the public school on 03/20/2013 and is not sure when he received the . did not consider keeping his son in the public school while he awaited the report. (T 124-125 & Ex I)

In this case the parents did not have the opportunity to provide notice of the unilateral placement at the CSE meeting prior to removing the student from public school. Notice was provided of various parent concerns throughout the student‘s public school attendance and by way of requesting s in December of 2012. Parent did not provide ten days written notice prior to removal of the student from public school, though the notice was provided ten days before the student entered the unilateral placement of .

Notice dated 03/20/2013 and student attendance commencing at on 04/03/2013. DOE could have at any time addressed parent concerns, which primarily centered upon having the child , at any time from December 2012 through 04/03/2013. (Ex H & E)

I find that equitable considerations favor the parents and justify an award of tuition reimbursement under the circumstances of this case. However, I find sufficient evidence to allow the discretion allowed to reduce, to some degree, the tuition reimbursement, based upon some of the action and inaction of the parent, as identified above. (see C.L. v. New York City Dep't of Educ., 2013 WL 93361, at *8-*9 [S.D.N.Y. Jan. 3, 2013]; B.R. v. New York City Dep't of Educ., 2012 WL 6691046, at *8-*9 [S.D.N.Y. Dec. 26, 2012]; R.K., 2011 WL 1131522, at *4).

APPROPRIATENESS OF THE PLACEMENT

TUITION REIMBURSEMENT AMOUNT

tuition for student attendance for the 2012-2013 school year is $15,300.00. (Ex B 1)

tuition amount of $15,300.00 has been paid to . (Ex F)

Based upon the equities as described above the I find the tuition amount to be reimbursed to the parent to be $12,000.00.

ORDER

1. The DOE shall reimburse parent for placement and student attendance at for the 2012-2013 school year, in the amount of $12,000.00.

2. DOE shall provide parent with any forms required to complete the reimbursement process within ten days of receipt of this Order.

3. DOE shall reimburse parent within 30 days of receipt of any required documents and proof of payment by parent of the 2012-2013 tuition.

4. This decision is subject to appeal and review by the State Review Officer. Dated: October 30, 2013

DANIEL AJELLO, ESQ.

Impartial Hearing Officer DA:gc

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 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 wsite: www.o.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Hearing Request, 7/18/13, 2 pages B , 3/18/13, 1 page C School program description 12-13, 3 pages D Class Schedule, 12-13, 1 page E Attendance Record, 12-13, 1 page F School Affidavit, 7/22/13, 1 page G Referral Letter, 3/20/13, 3 pages H Notice Letter, 3/20/13, 3 pages I , 1/13, 20 pages J School Report, 2/28/13, 3 pages

DEPARTMENT OF EDUCATION

None

HEARING OFFFICER

NONE