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: December 21, 2012

February 26, 2013

April 10, 2013

Actual Record Closed Date: June 7, 2013

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney DOE 12/21/12 02/26/13 04/10/13

School Psychologist DOE 02/26/13 Attorney PARENT 12/21/12 Attorney PARENT 02/26/13

Father PARENT 02/26/13 04/10/13

Teacher PARENT 04/10/13

On November 26, 2012, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of student attending a private school and the New York City Department of Education (“DOE”) - District: 02, concerning the student’s special education program. I was appointed after the recusal of at least one other IHO.

After adjournments were granted on consent or for good cause, the impartial hearing was held on December 21, 2012, February 26, 2012 and April 10, 2013. The parties opted to submit written closing statements which were due and received on May 9, 2013. (T-352) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student’s Individualized Education Program (“IEP”) dated July 2, 2012 is procedurally and substantively flawed. (See Parent’s Due Process Complaint - “DPC”) Accordingly, the Parent unilaterally placed the student in a private school for the 2012-2013 school year. (Id.) The Parent seeks reimbursement for the student’s tuition at for the 2012-2013 school year. (Id.)

THE DEPARTMENT OF EDUCATION’S CASE

The DOE argues that it offered the student a “free an appropriate public education” (“FAPE”) for the 2012-2013 school year in staffing ratio. (T-33-4) The agency issued a “Final notice of Recommendation” (“FNR”) on Jun3 13, 2012. (T-34) The Parent rejected the offered placement after visiting the school based upon “inappropriate speculation.” (Id.) This is a straight “FAPE” case in the eyes of the agency. (Id.)

The DOE called (1) witness to testify on its behalf and submitted (08) documents into evidence. The sum, substance and relevant part of the testimony and documentary evidence for and against the DOE is incorporated in the Findings of Facts & Decision below.

THE PARENT’S CASE

The Parent “reserved” on making an opening statement until beginning her direct case and ultimately declined to make one. (T-34-5 & 239) The Parent’s argument in support as gleaned from the DPC, is that the student’s has been denied a FAPE in her Individualized Education Program (“IEP”) dated July 2, 2012 on procedural and substantive grounds and her private school placement was approved by the State Review Officer (“SRO”) for the 2011-2012 school year. (DPC)

The Parent called (2) witnesses to testify on her behalf and submitted (27) documents into evidence. The sum, substance and relevant part of the testimony and documentary evidence for and against the Parent is incorporated in the Findings of Facts & Decision below.

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (See Rowley, 458 U.S. at 203) However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and Rowley, 458 U.S. at 189) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379) Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132) Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 37071; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-

105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at

364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)

As stated above, the inquiry begins at (a) whether the DOE complied with the procedural requirements set forth in the IDEA, and (b) whether the agency developed the IEP with a properly composed Committee on Special Education (“CSE”) through the IDEA's procedures, which is reasonably calculated to enable the student to receive educational benefits. (See Rowley and Cerra v. Pawling Cent. Sch., supra)

Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.

In this case, the record shows that the CSE team on May 3, 2012 was composed of the student’s father, a special education teacher, a school psychologist also acting as the district representative, a social worker, a parent member, a the student’s teacher from the student’s private school and a social worker from the student’s private school. (T-47 & D-2) Since it is well settled that an amended IEP supersedes a previous IEP (See SRO Nos.: 05-063, 05021 & 06-027), I find that the student’s June 26, 2012 IEP superseded his May 3, 2012 and was the IEP in effect at the time the hearing requests were made. The DOE submitted into evidence a “release” signed by the Parent on June 22, 2012 which states:

[Parent name] (Parent Name) on behalf of myself, and my son/daughter

[student name] (student name) in consideration of the agreement by the New York City Department of Education (“DOE”) to place my son/daughter at [name of summer camp] (name of summer placement) for the summer 2012 do hereby release and discharge the City of New York and the DOE, as well as its successors and assigns, and all its present and former officials, employees, representatives, and agents, from: any liability, claims and/or rights of action, including any and all claims for costs, and expenses, that I may have relating to the placement of my son/daughter for the summer 2012. And I further acknowledge that the placement of [student name] (student name) at [summer camp] (name of summer placement) does not constitute the Student’s pendency placement.

This Release may not be orally modified.

THE UNDERSIGNED HAS READ THE FOREGOING RELEASE

AND FULLY UNDERSTANDS THE TERMS THEREOF

______________________________

____________________

Parent signature Date (D-3)

The Parent asserts that the student’s IEP on May 3, 2012, was not properly constituted because the agency did not present any evidence that the school psychologist acting as the district representative had knowledge of the availability of any District resources, nor the authority to commit them. (P-AA) Additionally, the DOE special education teacher was not the student’s teacher at the time and there was no evidence presented that she had taught during the 2011-2012 or 2012-2013 school year. (Id.)

The amended June 26, 2012 IEP was not submitted in evidence. According to the school psychologist, the IEP was amended “…to reflect that [student name] was attending a summer program, a summer camp program that I believe was being , you know, funded, or reimbursed, though, you know, from the Department of Education.” (T-44) The school psychologist further testified that the revision to the IEP was done “administratively” and that a “…waiver to hold a meeting was sent to the parent and they agreed to waiving a, you know, formal sit-down meeting.” (T-44-5) As indicated above, the “wavier/release” signed by the Parent does not contain any language waving the requirement that a formal CSE meeting be held to amend the student’s IEP.

The law provides that a Parent may waive the participation of the additional parent member at any meeting of the CSE. (See 8 NYCRR200.5[c][2][v]) I know of no section of the law that allows for the waiver of the entire CSE team to amend an IEP. As stated above, an IEP must be developed by the CSE through the IDEA's procedures. (See Rowley and Cerra, supra) Additionally, no such explicit waiver in contained in the purported “Release.” (Supra) Finally, it stands to reason, that any agreement which is contrary to the policy of the law, or public policy, because of its mischievous nature or just its tendency, is illegal and void, even though the acts contemplated may not be expressly prohibited either by the common law or by statute. Such is the case here, where the DOE proffers that the purported “Release” relieved the CSE of its legal obligation to convene and amend the student’s IEP.

The student’s June 26, 2012 IEP was not properly prepared. However, IHOs are constrained by federal and State regulations from finding that a FAPE is denied by a procedural violation unless the procedural inadequacy impeded the student's right to a FAPE, significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a FAPE, or caused a deprivation of educational benefits. (See 20 U.S.C. § 1415[f][3][E][ii], 34 C.F.R. § 300.513[a][2], 8 NYCRR 200.5[j][4][ii], E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]) While I do find the purported “Release” to be invalid, I cannot find that the mere addition of a summer placement to the IEP at the Parent’s request, just short of two months after the May 3, 2012 IEP was developed, amounts to a denial of FAPE in and of itself.

I turn next to the question of whether the student’s June 26, 2012 IEP accurately reflects the results of the student’s evaluations. (See 34 C.F.R. § 300.320[a][1] and 8 NYCRR 200.4[d][2][i]) However, the June 26, 2012 IEP was not submitted in evidence and the document cannot be reviewed. It would be purely speculative and improper for this IHO to “assume” that the June 26, 2012 completely mirrors the student’s May 3, 2012 IEP, received in evidence as “D-2.” DOE exhibit “D-2”, indicates that the date of the IEP meeting encompassed by the document is May 3, 2012. (D-2 @ pg. 16)

As stated above, under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-

62) However, on August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007)

It may be that the student’s June 26, 2012 IEP was not submitted in evidence because it does not exist. Nevertheless, New York State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination. The decision shall reference the hearing record to support the findings of fact." (See 8 NYCRR 200.5[j][5][v]) Because I have already found that the relevant IEP in this case is the student’s IEP dated June 26, 2012, and that the June 26, 2012 IEP was improperly prepared, and because the June 26, 2012 IEP was not submitted in evidence, I must find that the DOE has not met its burden of proof showing that the June 26, 2012 IEP offered the student a FAPE.

I next turn to the question of whether the student’s private school placement is appropriate. Here, the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the student’s unique needs, supported by such services as are necessary to permit her to benefit from instruction. (See Gagliardo and Frank G., supra)

The student in this case is described as basically non-verbal with a limited ability to communicate with others, has significant , has difficulty relating to others and is always seeking sensory input. (T-186-7) A Psycho-Social Report dated August 12, 2010, deemed “remains appropriate” on February 3, 2011, states that the student has a diagnosis of Autism. (P-I) The student’s attention, concentration, perception and judgment are described as “severely limited” therein. (Id.)

At the private school, the student’s “sensory diet” is said to have allowed her to remain attentive during one-to-one activities. (T-254) The private school has occupational therapist to address the student’s sensory issues. (T-169) The private school is designed specifically for students with in relating and communicating where the majority of the students are on the autism spectrum. (T-154-5) The class rooms have a two to one teacher to student ratio with the average class having (8) students. (T-172)

The private school utilizes the “Developmental Individual Difference Relationship” (“DIR”) based model, which “…proceeds from the core belief that relationships are the foundation of learning.” (P-N) The student receives occupational therapy, counseling and speech and language services at the private school. (T-175) The related service providers jointly developed a program to address the student’s needs. (T-188) The private school is peanut and seafood free so that the student’s allergies to the same are not triggered. (T-189) The private school also works on the student’s daily living skills. (T-190) Generalization takes place at least once a week when the student is taken out into the community. (T-191)

The student’s mother states that the student has progressed to where she will play with others and get her own snacks. (T-302) The student’s progress report dated December of 2012 states that she has shown an increase in her ability to remain in more purposeful interactions with familiar adults in the classroom. (P-G) The report further states that “Progress is noted since September in [student’s name]ability to accept sensory input on a regular basis from staff and therefore she seeks less input throughout her day, most notably she spends less time in head stands and leaning on people and objects in her environment.” (Id.) The student’s ability to engage and relate is said to have increased. (Id.) Based on the record before me, I find that the private school is providing educational instruction that is meeting the student’s unique needs and that she is benefiting from instruction thereat. Accordingly, I find that the student’s private school placement is appropriate for the 2012-2013 school year.

Finally, I must consider whether equitable considerations bar an award on behalf of the Parent. Here, the Parent’s contract with the private school, its terms, his ability to perform under the agreement and his understanding of his obligation do raise a concern. The contract states that the tuition at the private school for the 2012-2013 school year is $81,417. (P-Q) The Parent testified that a worst case scenario for him was “Well, $14,000 I think I had to put down in payments or something.” (T-327) Subsequently he stated that his understanding was that he would have to pay the remainder of the money if he did not win at the hearing. (Id.) The Parent’s income for 2012 was “$2,000 a month gross” (i.e. $24,000 for the entire year). (T-328) The private school contract’s addendum states:

“Set forth below is the payment schedule as outlined in the Enrollment Contract for the 2012-2013 school year. Please note that all payments listed below are attributed to Student’s deposit and are non-refundable:

Non-refundable deposit: August 24, 2012 $2,500

Balance of Deposit: August 24, 2012 $2,500

Total Deposit $5,000

Payment 1 Due March 15, 2013 $1,500

Payment 2 Due June 1, 2013 $2,000

Payment 3 Due August 15, 2013 $2,000

Payment 4 Due November 15, 2013 $2,000

These payments will be waived if the DOE, or the Student’s local Board of Education if different from the DOE, prospectively pays tuition prior to the payment dates above.

The balance of the tuition will become due upon payment by the Department of Education of Student’s local Board of Education if different from the DOE.

If payment is not received by June 1, 2013, a new Payment Schedule may be put into place and the remaining balance may become due immediately. (Id. - emphasis added)

There is evidence in the record that the Parent made payments of $5,000.00 to the private school as of January of 2013. (P-T & P-U)

The Parent herein request direct to the private school for those portions of tuition the parents have yet to pay for the student’s attendance during the 20120-2013 school year.

(DPC) However, as noted by the DOE, the private school tuition contract “…by its own terms is subject to future modification contingent upon the outcome of this impartial hearing.” (D-8) The fact that the student’s tuition under the contract “may” change in the future renders its present tuition terms ($81,417 for the 2012-2013 school year) illusory. (P-Q) The actual cost of the student’s tuition is unknown because it is only “$81,417” if the Parent wins the hearing, but could be more or less if the Parent loses.

The DOE rightfully cites the Benicorp case for the fundamental essence of a valid contract, i.e., that “the fundamental basis of a valid, enforceable contract is a meeting of the minds of the parties, and, if there is no meeting of the minds on all essential terms, there is no contract.” (D-8, citing Benicorp Ins. Co. v. National Medical Health Card Sys., Inc., 447 F. Supp. 2d 329, 337 (S.D.N.Y. 2006) Here, I do not see how there can be a meeting of the minds when the essential contract term, the tuition cost, is subject to change in the future, at what appears to be the sole discretion of the private school. It is important to note that the Parent’s testimony concerning his understanding of his contractual obligation is vague. When asked: “What is your understanding, and according to that contract you’ve mentioned the number $80,000 a couple of times. According to that contract you committed to paying the [name of private school] over $80,000, is that correct?” He replied: “A minimum of $14,000, that’s what it says over here, and in a worst case scenario--.” (T-327) The Parent only earned $24,000.00 in 2012. (T-328) Under the circumstances, it is hard to fathom how the private school and the Parent could believe that the Parent could ever pay the private school tuition which totals $81,417.

The DOE cites Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. Feb. 1, 2011) as follows: (in fashioning relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs; since the parents have selected the unilateral placement, and their financial status is at issue the parents have the burden of production and persuasion with respect to whether they are legally obligated for the student's tuition payments). (D-8 - emphasis added) “Collusion” in this sense, is not nefarious, but instead, the setting forth of an intentional plan to allege a denial of FAPE so as to have the agency pay a tuition cost that is subject to change if the effort does not prevail. In this case, for the reasons stated above, I find that the Parent has not met his burden to show that he is legally obligated to pay $81,417 to the private school for the 2012-2013 school year.

It is well settled that Parents who choose to unilaterally place their child at a private school without consent or referral by the school district do so at their own financial risk. (See Carter, 510 U.S. at 15, Burlington, 471 U.S. at 373-74 and Forest Grove, 129 S. Ct. at 2496) The United States Supreme Court in Burlington held that retroactive reimbursement of private educational expenses is appropriate as an available remedy under the IDEA. (See Burlington, 471 U.S. at pp. 370-71, Carter, 510 U.S. at 1415, Gagliardo, 489 F.3d at 111 (2d Cir. 2007), explaining that parents who believe that their child has been denied a FAPE may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school], Diaz-Fonseca v. Commonwealth of Puerto Rico, 451 F.3d 13, 32, 40 (1st Cir. 2006), concluding that reimbursement under the IDEA allows parents to recover only actual, not anticipated, expenses for private school tuition and related expenses, (emphasis added) Cerra, 427 F.3d at 192, noting the availability of "retroactive tuition reimbursement" under the IDEA, Muller v. Comm. on Special Educ. of East Islip, 145 F.3d 95, 106 (2d Cir. 1998), holding that compensation for "out of pocket expenses" was appropriate, Streck v. Bd. of Educ., 2009 WL 2163090, at * 2 (N.D.N.Y. July 17, 2009) and Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 299 (4th Cir. 2005))

While the IDEA provides that a court shall grant such relief that is determined to be appropriate (20 U.S.C. § 1415[i][2][C][iii], Forest Grove, 129 S. Ct. at 2488), the IDEA does not expressly provide for prospective payment of tuition costs. The IDEA does provide that “a court or a hearing officer may require the “school district” to reimburse the parents for the cost of “private school” enrollment if the court or hearing officer finds that the school district had not made a FAPE available to the child in a timely manner prior to that enrollment.” (See 20 U.S.C. § 1412[a][10][C][ii], 34 C.F.R. § 300.148[c] and SRO Nos.: 09-001, 07-032, 08-050 & 04-037)

The evidence contained in the hearing record supports a finding that it was the private school, not the Parent, who incurred the financial burden associated with the student's education for the 2011-2012 school year. (See S.W., 2009 WL 857549, at *7*9, parent had no financial standing to sue for direct retrospective payment to private placement where terms of enrollment contract absolved her of responsibility for paying tuition) However, the private school is not a party in this case and is, therefore, not entitled to relief under the IDEA. (Id.)

I do note; however, that the United States Court of Appeals for the Second Circuit has determined that under the pendency doctrine, school districts may be required to directly fund pendency placements (Bd. of Educ. v. Schutz, 290 F.3d 476, 482-84 [2d Cir. 2002] and Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d195, 200-01 (2d Cir. 2002) and that courts have awarded “prospective payment” to afford access to compensatory education. (See, e.g., Streck v. Bd. of Educ., 2008 WL 2229141 (2d Cir. May 30, 2008) and Draper v. Atlanta Indep. Sch. System, 518 F.3d 1275, 1286 (11th Cir. 2008)(emphasis added) Moreover, a public agency may, under certain circumstances, place a student in an approved private school, however if it does so, the placement must be a public expense and meet state standards. (See 20 U.S.C. §1412[a][10][B]) ]) Where a Parent is seeking “prospective” payment for their unilateral placement, the Parent bears the burden of production and persuasion with respect to whether the Parent has the financial resources to front the tuition costs. (See Mr. & Mrs. A. v. New York City Dep’t of Educ., 2011 WL 321137 at *22 (S.D.N.Y. Feb. 1, 2011)

While the Parent here has standing to bring a complaint asserting that a FAPE has been denied, I note that even if the Parent had standing to seek tuition reimbursement, his notice to the DOE of his intent to unilaterally place the student at the private school is inadequate. (P-J & 20 U.S.C. § 1412[a][10][C][iii][I][aa]) The notice requirement of 20 U.S.C. § 1412 “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a FAPE can be provided in the public schools.” (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])

The notice in this matter provided the DOE notice of the unilateral placement intended at public expense, but it did not give adequate notice of the Parents' procedural or substantive concerns with the proposed IEP, other than to state in relevant part that “The DOE has failed to offer an appropriate program for the 2012-2013 school year. I have not received a Final notice of Recommendation. The DOE failed to offer an appropriate program at the CSE I recently attended. The DOE has failed to appropriately educate my daughter when she was previously placed at school 77.” (P-D) Whether under 20 U.S.C. § 1412 notice requirements, or general equity principles regarding notice (Frank G. 459 F. 3d. 356, 376), the notice did not adequately inform the DOE of the Parent's concerns. (SRO No. 08-088)

The Parent cannot assert a claim for the particular relief he has requested on behalf of a private entity that lacks standing under the IDEA to maintain a claim against the DOE in its own right. (See Emery, 432 F.3d at 299, Piedmont Behavioral Health Center LLC v. Stewart, 413 F.Supp. 2d 746, 755-56 (S.D. W.Va. 2006) and Malone v. Nielson, 474 F.3d 934, 937 [7th Cir. 2007]) The Parent might argue that he is entitled to direct funding under Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998). However, in Connors, the Court dismissed the Parents' claim for tuition and in dicta discussed the concept of “prospective” tuition payment after the Court made a finding that the school district conceded that it could not provide an appropriate education for the student and that the private placement could. (Id. at 34 F. Supp. 2d at 806)

In the case at bar, the DOE has not conceded that it failed to offer the student a FAPE for the 2012-2013 school year. What’s more, the agency contests the Parent's claim that the unilateral placement at the private school was appropriate for the student. Accordingly, I must find that the Parent is not entitled to direct and/or prospective funding of tuition at the private school for all of the reason stated herein. (See 20 U.S.C. § 1412[a][10][C][ii], 34 C.F.R. § 300.403[c], Burlington, 471 U.S. 359; Carter, 510 U.S. 7, A.A. v. Bd. of Educ., 196 F. Supp. 2d 259 (E.D.N.Y. 2002) and SRO Nos.: 09-001, 08050, 07-032 & 04-037)

For all of the reasons stated above, I find that equitable considerations bar an award of tuition reimbursement to the Parent.

NOW therefore, it is hereby

ORDERED that the Parent’s request for the DOE to make direct payment school for those portions of tuition that the Parent has yet to pay for the student’s attendance thereat for the 2012-2013 school year is DENIED. Dated: June 21, 2013

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED: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 RECORD

Number/Letter Title Dated For # of Pages

01 Due Process Response 11/01/12 DOE 04

02 Revised IEP 06/26/12 DOE 19

03 Release 06/22/12 DOE 01

04 Special Educ. Teacher Notes 05/03/12 DOE 01

05 Progress Report 12/2011 DOE 12

06 IEP Meeting Minutes 05/03/12 DOE 04

07 FNR 06/13/12 DOE 01

08 Closing Statement 05/09/13 DOE 28

A SRO Decision 12-135 09/12/12 PARENT 24 B Hearing Request 10/22/12 PARENT 05 C Order on Pendency 12/21/12 PARENT 06 D Letter from Parent 06/14/12 PARENT 01 E Withdrawn by Parent N/A PARENT N/A F Withdrawn by Parent N/A PARENT N/A G Progress Report 12/2012 PARENT 08 H Progress Report 06/2012 PARENT 16 I Psycho-Social 02/03/11 PARENT 03

J Update 01/27/11 PARENT 01

K Report 08/12/10 PARENT 05 L -Social Report 02/03/09 PARENT 02

M Report 01/27/09 PARENT 07 N School Curriculum undated PARENT 03 O Behavior Management Policy undated PARENT 01 P Mission Statement undated PARENT 01 Q Enrollment Contract 09/06/12 PARENT 06 R Student Schedule 2012-2013 PARENT 01 S Attendance Record 2012-2013 PARENT 01 T Tuition Affidavit 01/07/13 PARENT 01 U Proof of Payment 08/12-01/13 PARENT 02 V Tax Return 04/01/12 PARENT 24 W Letter from Parent 06/15/12 PARENT 01 X Evaluation 02/12/13 PARENT 09 Y Evaluation 12/20/12 PARENT 05 Z OT Evaluation 01/08/13 PARENT 05 AA Closing Statement 05/09/13 PARENT 30