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: October 16, 2012

November 20, 2012

December 6, 2012

February 5, 2013

Record Close Date: March 1, 2013

Hearing Officer: Jeffrey J Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 16, 2012

Attorney — Student

District Representative — DOE

CSE Social Worker (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 20, 2012

Attorney — Student

Parents

District Representative — DOE

Psychologist (via telephone) — DOE

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

Attorney — Student

Parents

Parent (via telephone) — Student

Director, (via telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 5, 2013

Attorney — Student

Parents

District Representative — DOE

Teacher, (via telephone) — DOE

I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parents in a due process complaint notice originally dated November 22, 2011, and later amended on June 25, 2012. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parents for costs associated with the student’s unilateral private placement at the for the 2011/12 school year (Exs. P-B, P-K).^[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).

II. PROCEDURAL HISTORY

I was appointed by the DOE to hear this matter on November 23, 2011. In a due process response dated November 28, 2011, the DOE denied each and every allegation contained in the parents’ complaint (Ex. P-J). See 8 NYCRR §§ 200.5(i)(4), (5). The parents filed an amended due process complaint notice on June 25, 2012, which triggered a new resolution session period (Ex. P-B). See 8 NYCRR § 200.5(i)(7). Hearings in this matter were held on: October 16, 2012, November 20, 2012, December 6, 2012, February 5, 2013.^[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

At the time of the June 25, 2012 amended hearing request, the student was eight (Exs. SD-1, P-B).^[3] For the 2011/12 school year, the student attended the located in (Exs. SD-3, P-B, P-C, P-D, P-F, P-K). The Commissioner of Education has not approved the as a school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing (Ex. P-B). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).

appear to be an extension of problems first noted in early childhood. The student had significant , as well as , for which she , including therapy, therapy, therapy, and special instruction. At age one (1), the student was noted by a pathologist to have sounds. was also compromised, as she had and . Her production of , and her mother reported that the student was initially not responsive to , and that she saw no improvement for a long time. The student achieved milestones within the expected time frame, but was noted at her one (1) year evaluation. were also observed. At age three (3), the student was evaluated by the Committee on Preschool Education (the “CPSE”) and occupational and physical therapy services were recommended. She began preschool in an inclusion classroom at . There, she was noted to have difficulty with I , and was observed to be engaging mostly in parallel play. She was noted to be distractible, needing reminders to stay on task, and with transitions. She was also noted to run on and need help (Exs. SD-4 at 2, SD-6 at 2-3).

In Kindergarten (2009/10 school year), was found to be with skills (e.g., letter and number recognition, counting with one-to-one correspondence). She also began for extensions of the case compliance date were granted (Exs. IHO-I, IHO-II, IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX, IHO-X, IHO-XI). exhibiting , at which time she received evaluation (September-October 2009) by , Ph.D. Findings of this evaluation found her intellectual functioning to be in the overall Average range, which weaknesses noted in pre-academic skills, , and to new information, and recommendations were made for learning to occur in a small classroom setting. As recommended, the student attended play therapy (for 6-8 months) to address her difficulties with emotional regulation (Exs. SD-4 at 2, SD-5 at 2, SD-6).

At a meeting held on February 3, 2010, the CSE developed an IEP for the student which recommended a program of special education teacher support services (“SETSS”), ten (10) periods per week, as well as therapy services (SD-5 at 2).

The student switched to a special education program (i.e., the Westchester a/k/a the Carmel Academy) for the first grade (2010/11 school year). In addition to special education services, the student received times per week, and attended at school (Exs. SD-4 at 2, SD-5 at 2, SD-6).

In educational testing conducted on October 15, 2010, the student’s attention span, focus, concentration and compliance were inconsistent. A high activity level was reportedly evident. Results from an administration of the Woodcock-Johnson Tests of Achievement- Third Edition (“WJ III”) were probably lower than the student’s potential. She was overwhelmed by the experience and in being evaluated. Her overall reading and math skills were within measured as being within (Ex. SD-5 at 2).

On March 3, 2011, the student’s mother signed an enrollment agreement with the for the student’s instruction in the Academy’s Providing Alternative Learning Strategies (“PALS”) Division for the 2011/12 school year (Ex. P-E).

On June 20, 2011, the student was administered selected subtests from the Wechsler Individual Achievement Test - Second Edition (“WIAT-II”) to gain insight into her reading and math development and then-current level of functioning comparted to same-aged peers. Results of that assessment demonstrated that the student was beginning to master phonological processing. Her Word Reading standard score of 80 was just diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(10). below the first grade level. Math Reasoning was at that level (standard score 82), and the student needed to learn simple time and simple money concepts. The student’s numerical operations were at a beginning level (standard score 84). She needed to master multidigit addition and multi-digit subtraction problems. Spelling was at (Ex. SD-5 at 4).

A social history, also completed on June 20, 2011, stated that:

This year [2010/11 school year], [the student] has made steady gains academically. As a result, she had become more confident in her ability and now participates in class. She is a happier child who gets along well with other students and enjoys going to school. [The student’s mother] is overjoyed with this dramatic transformation in her daughter (Ex. P-N at 1).

On July 5, 2011, the parents were invited to attend a CSE meting on July 13, 2011 (Ex. P-H). At the July 13, 2011 meeting, the CSE developed an Individualized Education Services Program (“IESP”) for the student for her second grade, the 2011/12 school year. The CSE recommended that the student receive SETSS, ten (10) periods per week, along with related services of: therapy, three (3) times per week for thirty (30) minutes per session; , one (1) time per week for thirty (30) minutes per session; and group counseling, one (1) time per week for thirty (30) minutes per session (Exs. SD-1 at 6-7, PB at 1-2)

In a letter dated August 24, 2011, counsel for the student and the parents advised the CSE of the parents’ rejection of its proposed program for the student and informed the CSE of the parents’ intent to make a unilateral placement of the student at the at public expense for the 2011/12 school year (Ex. P-A).

IV. POSITIONS OF THE PARTIES

A. The DOE

The parents’ claim for tuition reimbursement to the should be denied. As confirmed in a June 11, 2012 Parent Notice signed by the student’s mother, the parents voluntarily enrolled the student at the for the 2011/12 school year at their own expense and sought only the continuation of certain special education services (rather than a special education program). The special education services recommended by the CSE in its July 13, 2011 IESP were appropriate. The was an inappropriate placement for the student which failed to meet her special education needs. The relevant equities also do not support the parents’ claim (Ex. IHO-XII).

B. The Parents

The DOE should be ordered to reimburse the parents for the student’s tuition to the for the 2011/12 school year. The DOE failed to offer the student a free appropriate public education. The CSE incorrectly developed an IESP (rather than an IEP) for the student which failed to recommend any special education program. The Carmel Academy appropriately addressed the student’s educational needs. The relevant equities also support reimbursement of the student’s tuition to the (Ex. IHO-XIII).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. General Legal Standards

Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“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.^[4] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

A FAPE is offered to a student 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. See 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 and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). 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).

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.” 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, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; 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.’” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also 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), quoting Rowley, 458 U.S. at 192.

B. The District’s Estoppel Argument

The District argues that the parents should be equitably estopped from seeking tuition reimbursement from the DOE for the student’s unilateral placement at the prevent one party who by words or actions has represented that certain facts are true, thereby inducing another party to act to his or her detriment, from subsequently denying the truth of those facts. See Travelers Intern. A.G. v. TransWorld Airlines Inc., 722 F. Supp. 1087 (S.D. N.Y., 1989). It is an intentional relinquishment of a known right. See Orange Steel Erectors, Inc. v. Newburgh Steel Products, Inc., 225 A.D. 2d 1010 (3d Dept. 1996).

Here, the DOE argues that the execution of a “Parent Notice” on June 11, 2012 by the student’s mother which stated, inter alia, “I have placed my child in a non-public school at my expense and want the special education services to continue to be provided next school year” bars the parents from now pursuing a tuition reimbursement claim against the DOE (Ex. SD-2). Generally, prior written notice must be given to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, educational placement of the student or the provision of a FAPE to the student. See 8 NYCRR § 200.5(a)(1). The DOE failed to offer any evidence at the hearing of having shared with the parents prior written notice of their procedural safeguards under Federal and State law. As the DOE only provided the parents with written notice of their rights under the State’s dual enrollment law (discussed below) at the conclusion the disputed school year (i.e., 2011/12), I find that the DOE failed to give the parents adequate prior written notice of those rights. The DOE offered no evidence at the hearing (nor could it logically do so) that the July 13, 2011 CSE detrimentally relied on the signed June 11, 2012 notice form when it created an IESP for the student instead of an IEP. I also find the testimony of the student’s mother credible that she did not intend to waive any rights by signing the June 11, 2012 notice form (R. 267-9, 283).

C. Proposed Public Program/Dual Enrollment

Intertwined with the its estoppel argument, the DOE also argues that it was not responsible for developing an IEP for the student for the 2011/12 school year because the parents’ actions made it clear that they intended to continue the student’s enrollment at the . The DOE’s argument is misplaced.

In 2007, New York State amended Education Law Section 3602-c to comply with the reauthorization of 20 U.S.C. § 1412(a)(10) (“Children in Public Schools”) and its implementing regulations, 34 C.F.R. § 300.130 - 300.147. See N.Y. Educ. Law § 3602-c as amended by Ch. 378 of the Laws of 2007.^[5] Education Law Section 3602-c - commonly referred to as the dual enrollment statute - requires parents who seek to obtain educational services for students with disabilities placed in nonpublic schools to file a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. See N.Y. Educ. Law § 3602-c(2). The district of location’s CSE must review the request for services and develop an IESP based upon the student’s individual needs and “in the same manner and with the same contents” as an IEP. See N.Y. Educ. Law § 3602-c(2)(b)(1). In addition, the district of location’s CSE “shall assure that special education program and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” See id.

The DOE presumably relies upon the following question and answer provided in the September 2007 VESID guidance memorandum to support its assertion:

12. Must a district of residence develop an IEP for a student who is parentally placed and conduct annual reviews of this IEP?

USED has provided guidance that states: “If a determination is made through the child find process by the LEA (local educational agency) where the private school is located that a child needs special education and related services and a parent makes clear his or her intent to keep the child enrolled in the private elementary or secondary school located in another LEA, the LEA where the resides need not make FAPE available to the child.” Therefore, if the parents make clear their intention to keep the child enrolled in the nonpublic elementary or secondary school, the district of residence need not develop or annually review an IEP for the student. The DOE argues that the parents’ actions – by failing to reenroll the student in the New York City schools for the 2011/12 school year and by unilaterally enrolling the student at their responsibilities to provide special education services to students with disabilities who are enrolled in nonpublic elementary or secondary schools by their parents.” Available at – made it clear that they intended to keep the student enrolled at the , and thus, as the district of residence, it had no obligation to develop an IEP for the student. However, the DOE ignores the necessary condition precedent in order to displace its obligation to develop an IEP for the student in this case: namely, that the district of location has already determined “though the child find process . . . that the child needs special education and related services.” See Application of the Bd. of Educ., Appeal No. 10-049 at 37 (SRO June 28, 2010).

Here, the parents did not exercise their right to dually enroll the student in the district of location, did not seek to obtain special education programs and services from the district of location, did not have the student evaluated by the district of location, and did not accept an IESP developed by the district of location or accept services provided by the district of location. See Application of a Student with a Disability, Appeal No. 11011 at 9 (SRO April 1, 2011). On the contrary, on May 5, 2011, the parents requested that the DOE’s CSE, as the district of residence, develop an IEP for the student for the 2011/12 school year (Ex. P-L).

In addition, when on August 24, 2011 the parents notified the DOE, as the district of residence, of their intent to unilaterally enroll the student at the Carmel Academy for the 2011/12 school year, the parents alleged that the DOE failed to offer the student a FAPE and affirmatively placed a FAPE at issue (Ex. P-A). Under the facts of this case, the DOE, as the district of residence, remained responsible for developing an IEP for the student for the 2011/12 school year and its failure to develop an IEP consistent with its responsibilities denied the student a FAPE for the 2011/12 school year. Accordingly, I find in the parents’ favor on that issue.

D. Appropriateness of the

Given my finding that the DOE failed to provide the student with a FAPE during the 2011/2012 school year, I turn to the appropriateness of the parent’s private program. With respect to the second criterion for an award of reimbursement, the parent must show http://www.p12.nysed.gov/specialed/publications/policy/nonpublic907.pdf. VESID has since been reorganized and renamed, and is now referred to as the Office of Special Education. that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). 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.

In order to meet that burden, a private placement must be “proper under the Act,” see 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 special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “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, quoting Frank G., 459 F.3d at 364. 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 parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).

Based on the credible testimony offered by Ms. , Ms. and the student’s mother, I find that the was an appropriate placement for the student because it provided her with specially designed, individualized instruction to meet her unique educational needs, supported by such services as were necessary to permit the student to benefit from instruction (R. 255). The is an independent, private day school consisting of approximately 240 students from kindergarten through eighth grade (R. 199). The accommodates a variety of learning styles through differentiated instruction (R. 199).

In addition to its mainstream program, the offers the PALS program; a special education program designed for academically capable children with language-based . The method is interactive, interdisciplinary and integrated, utilizing a hands-on, multisensory approach to learning. The program caps all classes at ten (10) students with the support of two (2) educational professionals, one of whom is a licensed special education teacher. The program provides a carefully constructed, individually tailored program that meets the unique needs of each child. The content reflects age appropriate curriculum and is supported by internal scaffolding necessary to secure skill mastery. Instruction is guided by an initial evaluation of how the student learns best and an ongoing assessment of the effectiveness of that particular teaching style. The program employs a Child Study Team, which consists of experts, a school therapist, an therapist, consultants and parents, all of whom are responsible for reviewing each student’s progress and evaluate the efficacy of the support. The ultimate goal of the program is for every child to function effectively with typical peers in an age appropriate educational environment (R. 200-201, 203-204; Ex. P-C at 1).

During the 2011/12 school year, the student’s private program consisted of: a “home room” class with an eight-to-two (8:2) student-to-teacher ratio; small group instruction in a homogenous group for reading, writing and math; co-taught social studies and science classes; and an individually designed social skills curriculum. An intensive reading program utilizing an Orton-Gillingham methodology was developed for the student to address her difficulties with phonological awareness and visual processing. In this program, the student received ( ) support while grouped with two (2) other classmates who were at a similar reading level. The student also benefitted from small group instruction in math utilizing a multisensory approach. The student received instruction in social studies and science in an integrated co-taught setting with scaffolding and reinforcement support (R. 210-211, 214-215, 217-218; Exs. SD-4 at 20, P-D at 6-14).

To facilitate the student’s social/emotional functioning, the private school created an individualized social skills curriculum, which incorporated controlled social experiences and a token economy. Individual goals and strategies were developed to help the student build her . The student also received programmatic support throughout the school day to facilitate her growth (R. 211-212, 215, 219-220, 229, 232-233, 252, 256, 274, 330, 333-334).

The student make progress in all areas of development while attending the Carmel Academy during the 2011/12 school year (R. 218). The student made academic progress in reading, writing and math due to the structure and support offered to her in the program (R. 214; Ex. P-D at 6-14). Through instruction in an individualized social skills curriculum, the student made progress in and increasing her (R. 232, 277-278, 339, 342-343)

E. Relevant Equities

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 (10) 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); 34 C.F.R. § 300.148(d)(1).

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 evaluation 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); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 U.S. App. LEXIS 20967 (2d Cir. Aug. 9, 2006). “Courts fashioning discretionary equitable relief under [the] 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 placement was unreasonable.” Carter, 510 U.S. at 16.

In a letter from counsel dated August 24, 2011, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at the at public expense for the 2011/12 school year (Ex. P-A). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no contention or evidence indicating that the student’s parents were uncooperative with the CSE, see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student’s private school tuition and services was unreasonable, see Carter, 510 U.S. at 16.

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,

IT IS

HEREBY ORDERED THAT:

(1) the parent’s claim for reimbursement of the student’s tuition for her unilateral placement at the for the 2011/12 school year is GRANTED; and

(2) within thirty (30) days of the parents’ submission of adequate proof-of- payment, the DOE shall reimburse the parents $32,460, which represents the secular portion of the student’s private school tuition for the 2011/12 school year. Dated: March 15, 2013

______________________________

JEFFREY J. SCHIRO, ESQ.

Impartial Hearing Officer

JS:dl

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 16, 2012

PARENT

A Ten Day Notice Letter, 8/24/11, 3 pp. B Amended Due Process Complaint Notice/Impartial Hearing Request, 6/25/12, 3 p. C , Providing Alternative Learning Strategies (PALS), Description, Undated, 2 pp. D Student Progress Report, 2011/2012, 14 pp. E Contract, 3/3/11, 2 pp. F Student Schedule, 2011/2012, 1 p. G Credit Card Statements, Relevant dates, 4 pp. H Parent Invitation, 7/5/11, 1 p. I Subpoena ), 6/27/12, 1 p. J Due Process Response, 11/28/11, 3 pp. K Due Process Complaint Notice/Impartial Hearing Request, 11/22/11, 2 pp. L Parent Response to DOE Subpoena, 8/2/12, 1 p. M Subpoena ( ), 7/16/12, 1 p.

DEPARTMENT OF EDUCATION

1 Individualized Education Services Program (IESP), 7/13/11, 10 pp. 2 Parent Notice, 6/11/12, 2 pp. 3 Social History Update, 6/11/12, 1 p.

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 20, 2012

PARENT

N Social History Update, 6/20/11, 2 pp.

DEPARTMENT OF EDUCATION

4 Assessment Report, 5/14/12, 28 pp. 5 Evaluation, 6/20/11, 6 pp. 6 Evaluation, 10/5/09, 12 pp.

DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING

PARENT

None

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I Confirmation of Extension, 1/4/12, 1 p. II Confirmation of Extension, 3/7/12, 1 p. III Confirmation of Extension, 4/15/12, 1 p. IV Confirmation of Extension, 5/7/12, 1 p.

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”

[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to allow the parties adequate time to present their available witnesses on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that allowing the parties adequate time to present their available witnesses on the extensive issues raised in the parents’ due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests

[3] Other health impairment means 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 is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, lead poisoning, leukemia,

[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

[5] In September 2007, the Office of Vocational and Educational Services for Individuals with Disabilities (“VESID”) published a guidance memorandum - “Chapter 378 of the Laws of 2007 - Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the [IDEA] 2004 and New York State (NYS) Education Law Section 3602-c” - to “inform school districts of