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 5, 2012

January 18, 2013

June 10, 2013

June 28, 2013

July 31, 2013

September 9, 2013

November 8, 2013

Actual Record Closed Date: December 9, 2013

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 5, 2012

ESQ., Attorney — Student

ESQ., Attorney (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 18, 2013

ESQ., Attorney — Student

Parents

Parents

ESQ., Attorney — DOE

DOE Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 10, 2013

ESQ., Attorney — Student

Parents

Parents

ESQ., Attorney — DOE

DOE Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 28, 2013

ESQ., Attorney — Student

Parents

Parents

ESQ., Attorney — DOE

DOE Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 31, 2013

ESQ., Attorney — Student

Parents

Parents

Sister — Student

Law Clerk — Student

DR., Neuropsychologist (via telephone) — Student

Guidance Counselor (via telephone) — Student

ESQ., Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 9, 2013

ESQ., Attorney — Student

Parents

Special Education Teacher (via telephone) — Parents

Speech Pathologist (via telephone) — Parents

ESQ., Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 8, 2013

ESQ., Attorney — Student

Parents

Parents

Law Clerk — Student

ESQ., Attorney — 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 originally requested by the attorneys for the student and the parents in a due process complaint notice dated September 12, 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 and/or directly pay for costs associated with the student’s unilateral private placement at the in Manhattan for the 2012/13 school year (Exs. P-A, P-C).^[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 appeal that decision 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

Following the filing of the September 12, 2012 due process complaint, I was appointed by the DOE to hear this matter on September 14, 2012 (Ex. P-A). See 8 NYCRR §§ 200.5(i)(1), (j)(1), (j)(3)(i). In a due process response dated September 21, 2012, the DOE denied each and every allegation contained in the complaint (Ex. P-X). See 8 NYCRR §§ 200.5(i)(4), (5). A pendency hearing with the parties was held on October 5, 2012 (R. 3-12). See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). The parents filed an amended due process complaint on October 22, 2012 (Ex. P-C). See 8 NYCRR § 200.5(i)(7). In a due process response dated October 23, 2012, the DOE denied each and every allegation contained in the amended complaint (Ex. P-Y). See 8 NYCRR §§ 200.5(i)(4), (5). On November 13, 2012, I rendered an Interim Order on Pendency which directed the DOE to provide the student with certain related services at public expense pending the completion of this proceeding (Ex. IHO-I at 6-7). See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). A pre-hearing conference with the parties was held on January 7, 2013 to clarify the issues, set dates for the hearing, and address subpoena objections (R. 16-65). See 8 NYCRR § 200.5(j)(3)(xi). Hearings in this matter were thereafter held on: January 18, 2013; June 10, 2013; June 28, 2013; July 31, 2013; September 9, 2013; and November 8, 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 October 22, 2012 amended hearing request, the student was old and was diagnosed with . The student also presented with deficits in the areas of (Ex. P-C at 1). For the 2012/13 school year, the student attended the tenth grade at the Aaron School (Exs. P-L, P-P). The Commissioner of Education has not approved the Aaron School 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 speech or language impairment is not in dispute in this hearing (Exs. P-A, P-C). See 34 C.F.R. § 300.8(c)(11); 8 NYCRR § 200.1(zz)(11).^[3]

The student received home- therapy and occupational therapy beginning at age 2. The student attended pre-kindergarten classes at from ages 3 to 4. The student attended kindergarten through second grade at . The student attended at the School. The student attended fifth and sixth grades at the . The student began attending School in seventh grade (Ex. SD-3 at 1-2).

In November 2006, when the student was , she was referred for reevaluation to determine her then current level of cognitive functioning and to assist in educational and treatment planning. When administered the Wechsler Intelligence Scale for Children Fourth Edition (“WISC-IV”), the student demonstrated significant weaknesses, particularly on language-based tasks. Although a Full Scale IQ score could not be validly calculated, she obtained a Verbal Comprehension Index of 75 (borderline range), a Perceptual Reasoning Index of 84 (low average range), a Working Memory Index of 77 (borderline range), and a Processing Speed Index of 80 (low average range) (Ex. P-W at 2).

The student was also given selected subtests of the Wechsler Individual Achievement Test (“WIAT”) and the Woodcock-Johnson Tests of Achievement (“WJ”) to determine her academic functioning. On the whole, results from the student’s academic achievement tests indicated that she needed help attaining fundamental skills. She fell below grade level on all measures of reading, signifying that she had not mastered basic reading skills, such as decoding and sight word recognition. Her written language score was also below grade level; analysis of written work indicated that she had not grasped punctuation and grammatical rules. Her mathematical skills were likewise found . Specifically, she was in word problems and on addition and subtraction computation exercises (Ex. P-W at 3-6).

The student presented with which affected the development of her verbal/language skills. The student’s overall performance on tasks of attention within the Test was consistent with inattention and impulsivity. The student’s adaptive skills were assessed using the Adaptive Behavior Assessment System - Second Edition (ABAS-II) and were age-appropriate in all areas of functioning (Ex. P-W at 4, 6-7).

On December 5, 2011, the parents provided their written consent for the student’s reevaluation by the CSE (Ex. SD-8). In February 2012, the student participated in a evaluation. On the WISC-IV, the student obtained a Full Scale IQ of placing her in the . The student’s Verbal Comprehension skills measured in the high end of the Borderline range (79). The student’s Perceptual or Nonverbal Reasoning was significantly lower, in the low end of the Low range (61). In contrast, both Working Memory (83) and Processing Speed (83) were in the lower end of the Low Average range. Thus, the student’s nonverbal reasoning appeared to be a relative weakness, compared to other skill areas, where were more evenly developed. Academically related skills such as verbal abstract reasoning were almost average. The student’s vocabulary and language ability, however, were significantly impaired and deficient. The student’s such as working memory and processing speed (Ex. SD-1 at 4).

On the WJ-III, the student’s academic skills measured in Compared to others at her age level, her standard . The student’s short term memory and reading comprehension was . The student also had and with verbal word problems (Ex. SD-1 at 4).

On a May 7, 2012 speech/language progress report, the student’s speech/language pathologist noted that she presents with “ difficulties, as well as moderate pragmatic impairments.” Although the student had made “steady progress toward her annual goals,” continued speech therapy was recommended (Ex. SD-2 at 2-3).

On a May 15, 2012 occupational therapy progress report, it was noted that the student received individual occupational therapy two (2) times per week to improve sensory processing, organization, attention to task, cognition, fine motor and visual motor skills. At that time, the student displayed sensory processing deficits which made it difficult for her to attend and follow directions in a large classroom setting. The student had difficulty copying 6-10 sentences in a timely manner, which would “add significant educational implications in high school.” The student had difficulty with reading comprehension and spelling. She involving both text and visuals. The student easily forgot what she had just read and required passages to be read to her to understand content. The student and reading time on an analog clock. Given these weaknesses, continued occupational therapy was recommended for the following school year (Ex. PZ).

At a meeting held on May 14, 2012, the CSE convened to develop an IEP for the student for the 2012/13 school year. The CSE recommended that the student receive instruction in English/Language Arts, math, social studies and science in a special class setting in a community school on a ten (10) month basis. The CSE recommended that the balance of the student’s instruction would occur in a general education (mainstream) setting. The CSE recommended that the student participate in the same State and districtwide assessments of student achievement that were administered to general education students and be evaluated against a standard promotion criteria. The student’s general and special education instruction was to be supported by related services of: specialized transportation; group therapy, group , and individual and (Exs. SD-5 at 7-11, SD-6, P-AA, P-GG).

In a Final Notice of Recommendation (FNR) dated July 30, 2012, the DOE advised the parents that the student’s recommended program would be implemented at Forest Hills High School in Queens and advised the parents of “the right to visit this site” (Ex. SD-7). In a letter dated August 21, 2012, the parents advised the CSE that they had attempted to arrange a site visit of , but were informed by an assistant principal that school was out for the summer and that a site visit could not be arranged until classes resumed in September. The parents also noted that had been recommended for the student for the 2010/11 and 2011/12 school years and based on previous visits School, they had concerns about the appropriateness of that site for the student. The parents stated that in the event that the recommended program could not provide the student with an appropriate education, they intended to unilaterally enroll the student at School at public expense (Ex. P-D).

Following a site visit to , the parents wrote to the CSE on October 18, 2012, to state that they had determined the proposed program was insufficient to meet the student’s educational needs and reiterated their intent to make a unilateral placement of the student at the Aaron School at public expense (Ex. P-E).

IV. POSITIONS OF THE PARTIES

A. The DOE

The parents’ claim for tuition reimbursement and/or direct payment for the student’s unilateral placement at the for the 2012/13 school year should be denied. The CSE’s proposed program offered the student a free appropriate public education in the least restrictive environment. The recommended IEP goals were appropriate and measurable. The absence of a general education teacher from the May 14, 2012 CSE meeting did not result in a denial of a free appropriate public education. The parents’ objections related to the size of are speculative. The was an inappropriate and overly restrictive program for the student. The relevant equities also mitigate against a reimbursement/direct payment award as the parents signed a contract with the School before the May 14, 2012 CSE meeting. Alternatively, the DOE argues that the parents do not have a legal obligation to pay the . Lastly, the parents’ claim for an independent neuropsychological evaluation at public expense should be denied (R. 115-118; Ex. IHOXV).

B. The Parents

The DOE should be ordered to reimburse the parents and/or directly pay for the student’s unilateral placement at the for the 2012/13 school year. The CSE had inadequate evaluative information upon which to premise its recommended program for the student. The May 2012 CSE improperly lacked a general education teacher, a and an . The CSE’s proposed program for the student was deficient and served to deny the student a free appropriate public education. The proposed IEP goals were vague and the transition plan inadequate was during the 2012/13 school year and would have been an inappropriate placement for the student. The appropriately addressed the student’s unique educational needs. The relevant equities also support an award of tuition reimbursement and/or direct public funding of the student’s tuition to . The DOE should also be ordered to fund an independent of the student at public expense. The parents’ claim for after-school related services was withdrawn in light of the November 13, 2012 Interim Order on Pendency rendered in this matter (R. 446-458; Exs. IHO-I, IHO-XIV, PA, P-C).

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.

The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(I), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).

B. Composition of May 14, 2012 CSE Meeting

Turning to the first prong of the Burlington/Carter test, I must determine whether the DOE complied with the procedural protections of the IDEA. See Cerra, 427 F.3d at 192. The parent alleges that the May 14, 2012 CSE was not properly constituted in light of the absence of a speech/language therapist, an occupational therapist and a general education teacher (Exs. P-A, P-C).

An IEP must be prepared by a CSE having each of its required members. See, e.g., Application of a Child with a Disability (Byram Hills Cent. Sch. Dist.), Appeal No. 99-54 (SRO July 31, 2000). A CSE must consist of: the parents of the student; at least one regular education teacher of the student (if the child is, or may be, participating in the regular education environment); at least one special education teacher of the student, or if appropriate, at least one special education provider of the child; a school psychologist; a representative of the school district qualified to provide or supervise the provision of special education; and an individual who can interpret the evaluations being reviewed by the CSE. See 20 U.S.C. §§ 1414(b)(4)(A), (d)(1)(B); 34 C.F.R. § 300.321; N.Y. Educ. Law §§ 4402(1)(b), 4410(3), 8 NYCRR § 200.3(a).

The parents argue that the district failed to secure the participation of the student's speech/language therapy and occupational therapy providers at the May 2012 CSE meeting (Ex. P-C at 3). New York State law provides that a CSE shall include "persons having knowledge or special expertise regarding the student, including related services personnel as appropriate, as the school district or the parent(s) shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual." 8 NYCRR § 200.3(a)(1)(ix). Although the request by a district for the participation of a student's related service providers is to be encouraged, it is discretionary under State law and I find that the CSE did not violate any procedural requirements by not inviting the student's speech/language therapy and occupational therapy providers to participate. Further, I note that the May 2012 CSE was in possession of a May 7, 2012 speech/language progress report describing the student’s receptive, expressive and pragmatic language needs (Exs. SD-2, SD-5). I also note that parents were not precluded from inviting the student's related service providers to attend and participate in the meeting. See 8 NYCRR § 200.3(a)(1)(ix).

The parents also allege that the lack of a regular education teacher seriously impeded the ability of the CSE to properly consider how the student would function in the general education setting when not participating in 15:1 special classes (Ex. IHO-XIV at 16). Federal and State law also provides that the regular education teacher of the child “shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and supports and other strategies and supplemental aids and services, program modification, and support for school personnel.” 20 U.S.C. § 1414(d)(3)(C); 34 C.F.R. § 300.324(a)(3); 8 NYCRR § 200.3(d).

The hearing record reflects that no regular education teacher participated in the May 2012 CSE meeting although the CSE recommended that the student be educated for a portion of her instructional day in general education classes (R. 191; Ex. SD-5 at 11). Given the CSE’s recommendation that the student was to receive some instruction in a general education setting, I find that a regular education teacher of the student was required at the May 14, 2012 CSE meeting, cf. 34 C.F.R. § 300.321(a)(2); 8 NYCRR § 200.3(a)(1)(ii); W.T. v. Board of Educ., 716 F. Supp. 2d 270, 287-88 (S.D.N.Y. 2010); M.N. v. New York City Dep’t of Educ., 700 F. Supp. 2d 356, 365-66 (S.D.N.Y. 2010), and that the absence of a general education teacher from the meeting significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, 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 parents’ opportunity to discuss the student’s ability to meet New York State grade level instructional standards, the student’s eligibility for alternate assessment, the student’s ability to study a foreign language and the applicable promotion criteria were all significantly compromised by the absence of a general education teacher from the May 14, 2012 meeting.

C. Adequacy of Evaluations

The parents allege that the CSE failed to rely on adequate evaluative information when crafting its IEP for the student for the 2012/13 school year (Exs. IHO-XIV, P-A, PC). An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).

A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).

I find that the CSE had adequate evaluative information of the student’s functional, developmental and academic needs upon which to premise its program for the student for the 2012/13 school year (Exs. SD-5 at 1-2). See Application of a Student with a Disability, Appeal No. 12-017 (SRO February 22, 2012). At the May 14, 2012 meeting, the CSE considered a January 11, 2012 classroom observation, a February 29, 2012 assessment, a March 15, 2012 social history update, a May 7, 2012 progress report and narrative reports cards from the for the first and second terms of the 2011/12 school year (Exs. SD-1, SD-2, SD-3, SD-4, SD-5, SD-9, SD-10). Ms. , the student’s teacher at the Aaron School, was also present at the May 14, 2012 CSE meeting, participated in the meeting’s discussion and gave input regarding the student’s thencurrent functioning (R. 128-132, 515; Ex. SD-5 at 12).

D. Adequacy of IEP Goals

The parents allege that the annual goals developed for the student were vague and inadequate (Exs. IHO-XIV at 9, SD-5 at 3-6, P-A, P-C). An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs that result from the student’s disability to enable the student to be involved in and make progress in the general education curriculum, and meet each of the student’s other educational needs that result from the student’s disability. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.320(a)(2)(i); 8 NYCRR §§ 200.4(d)(2)(iii), 200.16(3)(3). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).

I find that the CSE’s IEP for the student for the 2012/13 school year established annual educational goals which were reasonably related to her educational deficits. The May 14, 2012 IEP included annual goals in: receptive language, written expression, reading comprehension, sequencing, vocabulary, math skills, money skills, visual tracking skills, motor skills and social/emotional functioning which were consistent with those educational deficits identified in the IEP and described what he could reasonably be expected to accomplish within a ten (10) month period. The annual goals also included the evaluative criteria, evaluation procedures and schedules to be used to measure the student’s progress toward meeting each annual goal (R. 141-142, 157-160; Exs. SD-5 at 1-6, SD-6 at 2, P-AA, P-GG at 7-9). See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).

Alternatively, while the CSE erred in omitting a goal from the May 2012 IEP to address the student’s documented attentional issues (Exs. IHO-XIV at 9, SD-1 at 1, P-W at 4, P-Z at 1), I find that the omission of such a goal from her IEP did not impede her right to a FAPE or cause a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).

E. Extended School Year Services

The parents seek a ruling that the May 2012 CSE erred in concluding that the student was ineligible for extended school year (twelve month) services for the summer of 2012 (Ex. P-C at 3).^[5] Given the passage of time since the May 2102 meeting, the student’s receipt of instruction at the Aaron School during the 2012/13 school year, and the student’s receipt of after-school related services pursuant to my November 13, 2012 Interim Order on Pendency, I find that the issue of whether or not the student required extended school year (twelve month) services during the summer of 2012 to prevent substantial regression of basic skills is now moot (Exs. IHO-I, SD-1, P-P, P-Q). See Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 (2d Cir. 2005); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008); see also Chenier v. Richard W., 82 N.Y.2d 830, 832 (1993); Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 (1980); Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 05-058; Application of a Child with a Disability, Appeal No. 04-027.

F. Substantive Appropriateness of Proposed Program

As noted earlier, 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. 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.

Based on the evidence submitted into the hearing record, I find that the CSE’s proposed program for the student was not reasonably calculated to provide her with meaningful educational benefit. According to the February 29, 2012 psychoeducational evaluation, the student possessed a Full Scale IQ of 70 (borderline) and was functioning academically at a third to fourth grade level (R. 128-139; Exs SD-1 at 4-5, SD-5 at 1-2). For the student’s tenth grade, the CSE recommended that the student receive four (4) periods daily of 15:1 special class instruction (in ELA, math, social studies and science) and five (5) periods per week of related services. The balance of the student’s instructional day was to occur in a general education setting (Ex. SD-5 at 7). According to Ms. Fochetta and the May 14, 2012 IEP, the student was expected to meet tenth grade level instructional standards, i.e., she was not designated for alternate assessment (R. 192193; Ex. SD-5 at 9).

Based on the credible testimony of Ms. and Dr. , I find that the student required more individualized instruction that that called for in the May 14, 2012 IEP to meet to meet her instructional goals and tenth grade curriculum standards. Ms. and Ms. testified that the student needed more individual instruction, information and direction than could be provided in a special class setting (R. 761-762, 810). Dr. concurred and testified that the student would be lost in a special class from a language and attention perspective, even before taking into consideration that the curriculum was substantially higher than her then-present level of academic functioning (R. 488-489). Dr. stated that the data supported the student’s continuing need for an environment where there would be small classes, a high staffing ratio and multiple educators in the classroom (R. 510511). He further stated that the student required a full-time small special education school and a class with a “tremendous amount of language support” (R. 509-511). Dr. also stated that the IEP’s program modifications and testing accommodations were insufficient to enable the student to successfully access the high school curriculum, particularly when she would be in a general education setting (R. 506-507, 828).

I also find that the coordinated set of transition activities included in the May 14, 2012 IEP was inadequate to facilitate the student’s transition into adulthood (Exs. IHOXIV at 13, P-A, P-C at 4). Under the IDEA, to the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enables the student to prepare for later post-school activities, including postsecondary education, employment, and independent living. See 20 U.S.C. § 1401(34); see also N.Y. Educ. Law § 4401(9); 34 C.F.R. § 300.43; 8 NYCRR § 200.1(fff). Accordingly, pursuant to federal law and State regulations, an IEP for a student who is at of age (15 under State regulations) must include appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, if appropriate, independent living skills. See 20 U.S.C. § 1414(d)(1)(A)(viii); 34 C.F.R. § 300.320(b); 8 NYCRR § 200.4(d)(2)(ix). It must also include the transition services needed to assist the student in reaching those goals. See id.

The IEP’s long-term goals and transition activities were insufficient, and failed to contain appropriate vocational objections. The long-term goals failed to include any travel training. The transition plan failed to include any required courses of study, a schedule of when the student would take mandatory Regents exams or a plan for how the student could attend college and/or be gainfully employed (Ex. SD-5 at 8-9). Dr. also testified that the transition plan was missing a vocational component and a program for learning prerequisite skills to obtaining and maintaining a job (R. 509).

G. Appropriateness of Proposed Placement

The parents allege that the would not have been able to implement the student’s proposed program and was too large to meet the student’s educational needs (Exs. IHOXIV at 16-21, P-A, P-C at 4-5).

Challenges to an assigned public school site are generally relevant to whether the district properly implemented a student’s IEP, which is speculative when the student never attended the recommended placement. Generally, the sufficiency of the district’s offered program must be determined on basis of the IEP itself. See R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 186-188 (2d Cir. 2012). The Second Circuit has explained that the parents’ “[s]peculation that the school district would not adequately adhere to the IEP is not an appropriate basis for unilateral placement.” R.E., 694 F.3d at 195; see F.L. v. New York City Dep’t of Educ., 2012 WL 4891748, at *14-*16 (S.D.N.Y. Oct. 16, 2012); Ganje v. Depew Union Free Sch. Dist., 2012 WL 5473491, at *15 (W.D.N.Y. Sept. 26, 2012) (finding the parents’ pre-implementation arguments that the district would fail to adhere to the IEP were speculative and misplaced), adopted, 2012 WL 5473485 (W.D.N.Y. Nov. 9, 2012).

While several district courts have, since R.E. was decided, continued to wrestle with the difficult issue regarding challenges to the implementation of an IEP made before the student begins attending the school and taking services under the IEP, see D.C. v. New York City Dep’t of Educ., 2013 WL 1234864, at *11-*16 (S.D.N.Y. Mar. 26, 2013) (holding that the district must establish that it can implement the student’s IEP at the assigned school at the time the parent is required to determine whether to accept the IEP or unilaterally place the student); B.R. v. New York City Dep’t of Educ., 910 F. Supp.2d 670, 677-678 (S.D.N.Y. 2012) (same); E.A.M. v. New York City Dep’t of Educ., 2012 WL 4571794, at *11 (S.D.N.Y. Sept. 29, 2012) (holding that parents may prospectively challenge the adequacy of a “placement classroom” when a child has not enrolled in the school because district are not permitted to assign a child to a public school that cannot satisfy the requirements of an IEP), the State Review Officer has found it necessary to depart from those cases, see Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 13-161 at 13 (SRO Nov. 20, 2013).

Since these prospective implementation cases were decided in the district courts, the Second Circuit has also clarified that, under factual circumstances similar to those in this case, in which the parents have rejected and unilaterally placed the student prior to IEP implementation, “[p]arents are entitled to rely on the IEP for a description of the services that will be provided to their child,” see P.K. v. New York City Dep’t of Educ., (Region 4), 2013 WL 2158587, at *4 (2d Cir. May 21, 2013), and, even more clearly that “‘[t]he appropriate inquiry is into the nature of the program actually offered in the written plan,” not a retrospective assessment of how that plan would have been executed,” K.L. v. New York City Dep’t of Educ., 2013 WL 3814669, at *6 (2d Cir. July 24, 2013) (rejecting as improper the parents’ claims related to how the proposed IEP would have been implemented). Thus, the analysis of the adequacy of an IEP in accordance with R.E. is prospective in nature, but he analysis of the IEP’s implementation is retrospective. Therefore, if it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of a FAPE due to the failure to implement the IEP. See R.E., 694 F.3d at 186-188; see also Grim, 346 F.3d 381-382 (holding that the district was not liable for a denial of a FAPE where the challenged IEP was determined to be appropriate, but the parents chose not to avail themselves of the public school program).

As explained more recently, “[t]he Second Circuit has been clear, however, that where a parent enrolls the child in a private placement before the time that the district would have been obligated to implement the IEP placement, the validity of the proposed placement is to be judged on the face of the IEP, rather than from evidence introduced later concerning how the IEP might have been, or allegedly would have been, implemented.” A.M. v. New York City Dep’t of Educ., 2013 WL 4056216, at *13 (S.D.N.Y. Aug. 9, 2013); see R.B. v. New York City Dep’t of Educ., 2013 WL 5438605, at *17 (S.D.N.Y. Sept. 27, 2013); E.F. v. New York City Dep’t of Educ., 2013 WL 4495676, at *26 (E.D.N.Y. Aug. 19, 2013); M.R. v. New York City Dep’t of Educ., 2013 WL 4834856, at *5 (S.D.N.Y. Aug. 14, 2013) (finding that the argument that the assigned school would not have been able to implement the IEP is “entirely speculative”); see also N.K. v. New York City Dep’t of Educ., 2013 WL 4436528, at *9 (S.D.N.Y. Aug. 13,

2013) (citing R.E. and rejecting challenges to placement in a specific classroom because “‘[t]he appropriate inquiry is into the nature of the program offered in the written plan.’”).

In this case, the argument that the DOE would have failed to implement the May 2012 IEP at the is speculative insofar as the parents did not accept the May 2012 IEP containing the recommendation of the CSE or the programs offered by the DOE and instead chose to enroll the student in , a private school of their choosing (Exs. SD-5, P-D, P-E). Therefore, the DOE was not required to demonstrate the proper implementation of services in conformity with the student’s IEP at the .

H. Appropriateness of the

Given my finding that the DOE failed to provide the student with a FAPE during the 2012/13 school year, I turn to the appropriateness of the parents’ private program. With respect to the second criterion for an award of reimbursement, the parents must show 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 evidence entered into the hearing record, including the credible testimony of Ms. Ms. , and the parents, I find that the was an appropriate placement for the student because it provided her with specifically designed, individualized instruction to meet her unique educational needs (R. 706).

The is a special education school of approximately forty (40) students in grades eight to twelve with impairments (R. 544; Exs. P-M, P-T). The curriculum is “grounded in the New York State and College Readiness Standards” and instruction is “guided by evidence-based research on all learning aspects” (Ex. P-M). The staff developed appropriate instructional goals for the student and utilized both formal testing (GRADE and GMADE) and informal testing to assess the student’s progress (Exs. P-P, P-PP, PTT, P-UU). At the , the student took English, math, science, history, art, reading remediation, physical education, health and transition classes (R. 560; Exs. P-M, P-T). The student was taught by a group of highly qualified teachers and providers, all of whom had Master’s degrees and many of whom were New York State licensed and certified (Ex. P-Q). The student’s class sizes ranged from two (2) to eleven (11) students, with an average of two (2) teachers per class (R. 560; Exs. P-R, P-T). The Aaron School’s small class sizes and staffing ratios allowed both significant individualized instruction, as well as functional grouping with other students having similar needs and abilities. The Aaron School staff communicated with one another about the student and used interdisciplinary strategies to address and target the student’s areas of deficit (R. 723-724, 731).

The student started each day with a fifteen (15) minute advisory period with a two-to-one student-to-teacher ratio and ended her day with a study hall. These classes were designed to help the student with her executive functioning skills, plan for the day and for homework, and receive additional assistance from teachers on lessons or homework (R. 570, 576). Over the school year, the student improved her organization and students skills, and developed a stronger work ethic (R. 589, 849).

The addressed the student’s significant deficits in math. The student’s math skills were very limited, and while she was able to complete basic addition and subtraction, she struggled with multiplication and division (R. 726). The student’s math class at the consisted of five (5) students with similar needs and abilities and focused on addition, subtraction, multiplication, division, as well as basic understanding of decimals, factions, percentages and geometry (R. 727-730; Exs. P-R, P-T). The student was taught through hands-on projects and real-word math problems such as buying items from a store (R. 729-729). The student’s math teacher also utilized technology-based learning, frequent repetition, modeling, and step worksheets with example problems (Ex. P-PP at 2).

The appropriately addressed the student’s reading and writing needs. As the student’s decoding and of her education, the student was provided two (2) daily classes for instruction in this area: a reading remediation class, dedicated to decoding and comprehension skills, and an English class dedicated to understanding texts and writing. In the reading class, the student’s reading comprehension skills were addressed in a small group format taught by a learning specialist (R. 574). The reading class focused on direct instruction of fundamental skills such as decoding (R. 575). At the beginning of the 2012/13 school year, the student’s reading class consisted of three (3) students, whose ability ranged from fourth to sixth grade (R. 796). In or around March of 2013, the student’s reading class was changed to group her with other students who more closely matched her reading profile (R. 781, 853). The student’s English class was based on a whole literature approach, and focused on reading short stories to identify story elements and writing skills (R. 779). The student’s English class consisted of one teacher and one other student functioning on a similar level (high fourth/low fifth grade) (R. 720-722, 730).

At the beginning of the 2012/13 school year, the student’s reading and decoding skills were on a high third to low fourth grade level, her sequencing and memory skills were very low, and she required a lot of repetition to recall what was previously taught to her (R. 711-713). To address the student’s inferencing skills, the staff guided her through the process of connecting story elements using graphic organizers and thinking maps (R. 716-718, 801). The staff also utilized an approach similar to “twenty questions” in which the student worked in a group of two to develop her inferencing skills (R. 717-718). To address the student’s sequencing deficits, staff utilized a “if somebody wanted, but so” chart, allowing the student to visually see the plot outline and to demonstrate cause and effect (R. 714). staff modified all materials to the student’s instructional reading level (approximately fourth grade) (R. 714-715). From the instruction the student received at , she made progress in various reading skills: she increased her reading level by half a grade, she increased her comprehension skills for reading independently, she was better able to make predictions and she was using more advanced reading materials by the end of the school year (R. 763, 782-783, 849; Ex. P-PP at 3).

The student also progressed in her writing abilities. At the beginning of the 2012/13 school year, the student was writing elementary sentences that consisted of threeto-four words, and struggled with grammar and punctuation, often forgetting to capitalize letters and use correct punctuation (R. 715). The student also struggled to link sentences together to form a cohesive paragraph (R. 798-799). The student’s writing skills were addressed through direct instruction and daily writing tasks in both her English and reading classes (R. 723-724, 801). To support the student’s writing skills, School staff utilized grammar checklists, teacher generated outlines, color coded graphic organizers, sentence check sheets, and one-to-one teacher support (Exs. P-PP at 1-2). In her English class, the student was taught to use a thesaurus to expand her vocabulary, utilized a thinking or “bubble map” to help the student brainstorm idea, and to elaborate on her thoughts (R. 723-724). The student progressed in her writing skills and by the end of the 2012/13 school year, she was writing more elaborate and consistently connected sentences with better examples and details and improved her ability to correctly use punctuation (R. 764, 793-784).

To address the student’s social deficits, provided the student with counseling services by a school psychologist, , which focused on verbal facilitation, perspective taking, peer interaction skills, classroom coping strategies and how to regulate emotions

(R. 553; Ex. P-PP at 4). Through counseling, the student developed a deeper sense of maturity and improved her ability to self-advocate (R. 589, 849; Ex. P-T). The student also improved her self-awareness so that when she had a problem or needed help with homework, she sought a teacher or counselor (R. 589, 850). The student improved her ability to generalize skills learned in a small group session to larger classes at the Aaron School and developed meaningful friendships with peers (R. 849-850).

For transition planning purposes, the student was enrolled in a “Responsibility and Choices” class which addressed social skills and relationships in a six-to-one ratio (R. 571-572). In this class the student received individualized teacher attention, participated in journal reflections, created a behavior log to develop self-awareness, and participated in role play (Ex. P-PP at 4). The student also went on field experiences, developed travel-training skills, discussed appropriate workplace communication, and took the Career Zone assessment (R. 556-557). In addition, each semester the student met with to discuss her ideas and plans following her graduation, to take informal vocational assessments, and to discuss the results of her career testing (R. 555). Through this process, the student developed a knowledge and awareness of possible career opportunities and the staff learned that the student was interested in working with children or in education (R. 555; Ex. P-PP at 4). With this knowledge, the staff was able to discuss realistic career options with the student, including educational requirements (R. 555-556).

staff worked collaboratively to address the student’s educational needs. They had weekly team meetings that addressed and assessed the student’s progress, effective strategies, whether the student’s goals were being met, and any needed trouble shooting (r. 554, 741-742). The student’s teachers also had informal meetings to discuss instructional strategies (R. 742-744). The evidence contained in the hearing record demonstrates that through a small, structured school environment, low student-to-staff ratios, and highly specialized instruction, addressed the student’s academic, social/emotional and attentional needs.

Alternatively, while the DOE argues that was inappropriate because it did not offer the student (Ex. IHO-XV at 14), it is well settled that 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.

I. 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 letters dated August 21, 2012 and October 18, 2012, 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 2012/13 school years (Exs. P-D, P-E). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no 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 tuition to the Aaron School was unreasonable (Exs. P-KK, P-LL, P-SS), see Carter, 510 U.S. at 16.

Alternatively, while the DOE contends that the parents never intended to place the student in public school for the 2012/13 school year, based on their signing of an enrollment contract prior to the May 14, 2012 CSE meeting (Exs. IHO-XV at 14-17, SD5, P-LL), the parents’ pursuit of a private school is an insufficient basis for denying a claim for tuition reimbursement absent any evidence of their failure to cooperate with the development of an IEP or their interference with the selection of an appropriate placement by the DOE, see A.R. v. New York City Dep’t of Educ., 2013 WL 5312537 (S.D.N.Y. Sept. 23, 2013); New York City Dep’t of Educ. v. V.S., 2011 WL 3273922, at *15 (E.D.N.Y. July 20, 2011); cf. T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009); Carmel Cent. Sch. Dist., 373 F. Supp. 2d at 417-18, particularly where, as here, the DOE failed to provide the parents with prior written notice of its proposed program, see 8 NYCRR § 200.5(a), before August of 2012 (R. 911-913; Exs. SD-5, SD-7).

J. Prospective Relief

“Where . . . parents lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instance where 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 Burlington factors have a right to retroactive direct tuition payment relief.” Mr. & Mrs. A., 769 F. Supp. 2d at 428. Since the parents has selected the Aaron School as the unilateral placement, and their financial status is at issue, the parents carry the burden of production and persuasion with respect to whether they have the financial resources to “front” the costs of the Aaron School and whether they are legally obligated for the student’s tuition payments. See, e.g., Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 12-004 at 16 (SRO March 19, 2012).

The parents have established that there was a lack of financial ability to "front" the student's tuition costs for the 2012/13 school year. The parents incurred an obligation to pay the Aaron School tuition in the amount of $49,925, for the student’s enrollment there for the 2012/13 school year (Ex. P-LL). The student’s father unequivocally testified that his family are legally responsible for tuition, as they signed the contract and have assumed financial and legal responsibility for the tuition whether or not they prevail at the impartial hearing (R. 889). The parents’ 2012 household income was $77,484, they have three (3) dependent children, two (2) of whom have special needs, and they do not own their own home (R. 908; Ex. P-N at 1). As of November 2013, the parents had paid

$10,250 toward the student’s tuition to the for the 2012/13 school year (Exs. P-KK, P-

SS). They have not yet paid the full cost of the tuition because they cannot afford to do so (R. 991).

K. Independent Educational Evaluation (“IEE”)

The parents seek an independent at public expense (Ex. P-C at 6). Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. See 34 C.F.R. 300.502(a), (b); 8 NYCRR § 200.5(g)(1). A parent, however, is only entitled to one IEE at public expense “each time the public agency conducts an evaluation with which the parent disagrees.” See 34 C.F.R. § 300.502(b)(5); 8 NYCRR § 200.5(g)(1). If the parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See 34 C.F.R.

§§ 300.502(b)(2)(i)-(ii); A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 549 (D.

Conn. 2002). If a school district’s evaluation is appropriate, a parent may not obtain an IEE at public expense. See 34 C.F.R. § 300.502(b)(3); 8 NYCRR § 200.5(g)(1)(v).

I find that the parents are not entitled to an independent neuropsychological evaluation at public expense. There is no evidence contained in the hearing record that the parents disagreed with any evaluation conducted by the CSE either at the May 14, 2012 meeting (Exs. SD-5, SD-6, P-A, P-AA, P-GG). See R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d 222, 234-35 (D. Conn. 2005) (finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent’s claim for an IEE at public expense), or in their August 21, 2012 letter to the CSE (Ex. P-D), which would trigger an obligation by the DOE to either fund the independent evaluation or initiate an impartial due process hearing to demonstrate the appropriateness of its evaluations. Cf. 34 C.F.R.

§§ 300.502(b)(2)(i)-(ii).

VI. ORDER

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

IT IS

HEREBY ORDERED THAT:

(1) The parents’ claim for tuition reimbursement and/or direct payment of the student’s tuition to for the 2012/13 school year is GRANTED; and within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parents for all costs, including tuition, associated with the student’s private placement for the 2012/13 school year, and shall directly pay the private school for any outstanding costs associated with said placement; and

(2) The parents’ claim for an independent neuropsychological evaluation of the student at public expense is DENIED. Dated: December 26, 2013

JEFFREY J. SCHIRO, ESQ.

Impartial Hearing Officer JJS: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 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 5, 2012

PARENT

A. Impartial Hearing Request/Due Process Complaint Notice, 9/12/12, 5 pgs.

B. Individualized Education Program (IEP), 5/30/07, 18 pgs.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

None

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 18, 2013

PARENT

C. Amended Impartial Hearing Request/Due Process Complaint Notice, 10/22/12, 6

pgs.

D. Letter to from parents, 8/21/12, 3 pgs.

E. Letter to from parents, 10/18/12, 2 pgs.

F. [Reserved]

G. [Reserved]

H. [Reserved]

I. Newspaper Article, 9/25/12, 2 pgs.

J. NYC DOE Special Education Service Delivery Report, 1/20/12, 1 pg.

K. SESIS Event Log, 11/22/11 to 10/10/12, 3 pgs.

L. First Quarter Progress Report, 11/6/12, 1 pg.

M. Program Description, undated, 1 pg.

N. U.S. Individual Tax Return (Form 1040), 2011, 5 pgs.

DEPARTMENT OF EDUCATION

1. Evaluation, 2/29/12, 7 pgs.

2. Progress Report, 5/7/12, 3 pgs.

3. Social History Update, 3/15/12, 3 pgs.

4. Classroom Observation, 1/11/12, 2 pgs.

5. Individualized Education Program (IEP), 5/14/12, 12 pgs.

6. Meeting Minutes, 5/14/12, 2 pgs.

7. Final Notice of Recommendation (FNR), 7/30/12, 1 pg.

8. Request for Consent for Assessment, 11/22/11, 1 pg.

9. Report Card Narrative (Term 1), 12/13/11, 11 pgs.

10. Report Card Narrative (Term 2), 3/15/12, 16 pgs.

IMPARTIAL HEARING OFFICER

I. Interim Order on Pendency, 11/13/12, 9 pgs.

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 10, 2013

PARENT

None

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

None

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 28, 2013

PARENT

None

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

None

DOCUMENTATION ENTERED INTO THE RECORD ON JULY 31, 2013

PARENT

Q. Faculty Description, 2012/13, 2 pgs.

R. Class Schedule, 2012/13, 1 pg.

S. [Reserved]

T. [Reserved]

U. [Reserved]

V. [Reserved]

W. Psychological Evaluation, 1/3/07, 12 pgs.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

None

DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 9, 2013

PARENT

O. Related Service Authorizations, various dates, 4 pgs.

P. Report Card Narrative, 2012/13, 9 pgs.

T. Report Card, 2012/13, 1 pg.

U. Consent for Evaluations, 3/15/12, 1 pg.

V. Home Language Identification Survey, 3/2/12, 1 pg.

X. Due Process Response, 9/21/12, 3 pgs.

Y. Due Process Response, 10/23/12, 3 pgs.

Z. Occupational Therapy Progress Report, 5/15/12, 4 pgs.

AA. CSE Meeting Notes, 5/14/12, 8 pgs.

BB. . Bell Schedule, undated, 1 pg.

CC. [Reserved]

DD. Exam, 1/24/13, 28 pgs.

EE. Global History & Geography , 1/25/13, 24 pgs.

FF. Exam, 1/22/13, 14 pgs.

GG. CSE IEP Meeting Notes, 5/14/12, 13 pgs.

HH. Occupational Therapy Progress Report, 4/10/11, 4 pgs.

II. Site Visit Notes ( ), 9/24/12, 2 pgs.

JJ. [Reserved]

KK. Proof-of-payments, various dates, 8 pgs.

LL. Enrollment Contract & Addendum, 5/3-4/12, 4 pgs.

MM. Related Service Progress Report (Speech/Language), 1/10/13, 3 pgs.

NN. Occupational Therapy Progress Report, 1/5/13, 4 pgs.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

None

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 8, 2013

PARENT

F. Letter to , 10/7/11, 3 pgs.

G. Letter to , 8/22/11, 2 pgs.

PP. , High School Report Card Narrative, 2012/13, 5 pgs.

QQ. [Reserved]

RR. [Reserved]

SS. Additional Proof-of-Payment, 8/20/13, 1 pg.

TT. Aaron School Results of GMADE and GRADE Assessments, 5/2012 & 5/2013, 2

pgs.

UU. Interpreting GRADE/GMADE Assessment Results, undated, 2 pgs.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

None

POST-HEARING SUBMISSIONS

PARENT

None

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

II. Confirmation of Extension, 1/3/13, 1 pg.

III. Confirmation of Extension, 2/9/13, 1 pg.

IV. Confirmation of Extension, 3/9/13, 1 pg.

V. Confirmation of Extension, 4/10/13, 1 pg.

VI. Confirmation of Extension, 5/11/13, 1 pg.

VII. Confirmation of Extension, 6/10/13, 1 pg.

VIII. Confirmation of Extension, 6/28/13, 1 pg.

IX. Confirmation of Extension, 8/1/13, 1 pg.

X. Confirmation of Extension, 9/2/13, 1 pg.

XI. Confirmation of Extension, 9/19/13, 1 pg.

XII. Confirmation of Extension, 11/4/13, 1 pg.

XIII. Confirmation of Extension, 12/2/13, 1 pg.

XIV. Parents’ Closing Brief, 12/6/13, 31 pgs.

XV. DOE’s Closing Brief, 12/6/13, 17 pgs.

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 and to allow for adequate time for the parties to submit post-hearing briefs 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 cited reasons justified the delay in the resolution of the matter and that extensions of time for the cited reasons were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 252-253, 438-439, 640-641, 1002-1003; Exs. IHO-II, IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX, IHO-X, IHO-XI, IHO-XII, IHO-XIII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

[3] Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(11).

[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] Twelve-month special service and/or program means a special education service and/or program provided on a year-round basis, for students determined to be eligible in accordance with sections 200.6(k)(1) and 200.16(i)(3)(v) of this Part whose disabilities required a structured learning environment of up to 12 months duration to prevent substantial regression. A special service and/or program shall operate for at least 30 school days during the months of July and August, inclusive of legal holidays, except that a program consisting solely of related service(s) shall be provided with the frequency and duration specified in the student’s individualized education program. 8 NYCRR § 200.1(eee).