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: March 15, 2013

May 13, 2013

May 21, 2013

Actual Record Closed Date: June 7, 2013

Hearing Officer: James P. Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 15, 2013

Attorney — Student

Parents

CSE Representative — DOE

Assistant Principal (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 13, 2013

Attorney — Student

Parents

District Representative — DOE

Special Ed Teacher - by phone — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 21, 2013

Attorney — Student

Parents

Parents

Principal, — Student

CSE Representative — DOE

School Psychologist, — DOE

The Matter of ., (hereinafter referred to as “Student”), came before me for determination, in accordance with the provisions of the Individuals with Disabilities Education Act, 20 U.S.C. §1412 et seq. on March 15, 2013, May 13, 2013 and May 21, 2013. The undersigned had been appointed by the New York City Department of Education’s Impartial Hearing Office as the Impartial Hearing Officer authorized to preside over this matter, by notice dated November 7, 2012. The Record Clse Date was June 7, 2013

The proceeding was initiated by correspondence filed on behalf of Parents by the firm of , dated November 6, 2012 and received by the New York City Department of Education’s Impartial Hearing Office on the same date. The Due Process Complaint (Exhibit A) alleged that District’s Committee on Special Education (C.S.E.) failed to provide Student with a free, appropriate public education for the 201-2012 and 20122013 school years. The specifics of those failures were enumerated in Parents’ Due Process Complaint (Exhibit A), for each of the two years cited. Such allegations challenged the sufficiency and appropriateness of the Individualized Education Programs (I.E.P.’s) that had been prepared by District’s Committee on Special Education (C.S.E.) for Student for each of the challenged years, noting that the I.E.P.’s did not contain enough detail regarding Student’s strengths, weaknesses, preferences and needs; that the Present Levels of Performance were insufficient and inadequate, especially in the areas of social/emotional skills, receptive, expressive and pragmatic language skills, attentional skills, sensory processing skills; and failed to provide an adequate baseline from which to guide teachers and Parents; that the I.E.P.’s failed to indicate the skills that Student had mastered and what skills still required mastery in the areas of reading, decoding, writing and mathematics; that the Present Levels of Performance in the areas of reading, mathematics and writing, as contained in each of the I.E.P.’s prepared by the Committee for Student, were based solely on teacher estimates; that the Committee failed to adequately discuss Student’s progress in the area of his social/emotional performance; that it did not discuss Student’s progress on his then-current school goals; that it did not adequately discuss new goals; that certain of the goals contained in Student’s I.E.P. were inappropriate, inadequate, insufficient and vague. Allegations were also made in Parents’ Complaint that the Final Notices of Recommendation were not timely issued, precluding Parents from viewing the placement in a timely fashion and without a designation of a specific class. It was further alleged that the placements offered to Student failed to provide Student with the level of individualized instruction and attention Student required and were inappropriate and insufficient to meet Student’s needs (Exhibit A). It appears that, as a result of all of the failings of the District’s Committee on Special Education in preparing Student’s recommendations for Student’s special education for the 2011-2012 and 2012-2013 school years, Parents enrolled or re-enrolled Student at , a private sectarian school unapproved by the New York State Department of Education, for the 2011-2012 and 2012-2013 school years and seek, in this proceeding, an Order requiring District and the New York City Department of Education to reimburse Parents for any monies expended by them for Student’s education at such facility for each of the cited school years or pay directly to any costs that Parents have been unable to pay.

Student is presently , having been born on . However, at the time District’s C.S.E. met on April 11, 2011 to prepare Student’s special education program for the 2011-2012 school year, Student was and, when the District’s C.S.E. met on April 18, 2012, was . The Record contains little background information regarding Student’s early years. According to Parent, Student was seen by Parents , . Parents had Student evaluated, after which were provided. Student was placed in a pre-school setting and, at some point, (T.R.290). Thereafter, Student was enrolled in a program at . However, Parents were advised by the staff of that placement that Student required special education. Student was apparently thereafter placed at a number of educational facilities (no names provided), the last of which made such progress with Student that , to which Parents had previously but unsuccessfully applied, at some point agreed to admit Student(T.R. 289-291). Student has remained in such placement ever since. Student is described by the Principal (T.R. 203). Student’s Present Levels of Performance, as provided to District’s C.S.E. by the staff at School at the April 11, 2011 meeting and as reflected in Student’s I.E.P., indicate that, in the area of Decoding, Student was at a ; in the area of Reading Comprehension, at a ; in Reading Comprehension at a ; in Math Comput6ation, at a ; and in Math Reasoning at a (Exhibit 1). The I.E.P. also notes that Student had a diagnosis of . In an Observation of Student conducted by District at on November 23, 2010, it was reported by Students’ then-teacher at that Student (Exhibit 2).

District’s C.S.E. convened on April 11, 2011 to conduct an Annual Review and prepare Student’s special education program for the 2011-2012 school year. District presented the testimony of Witness , who served that Committee both as Special Education Teacher and District Representative. Witness stated that the Committee was composed of herself, School Psychologist ; a Parent Member; a General Education Teacher; Student’s father and, participating by telephone, a Teacher from . Witness stated that the Committee had reviewed an Observation of Student that had been conducted on November 23, 2010 (Exhibit 2), together with written Progress Reports provided by Student’s teachers at (Exhibit T). The Committee classified Student as (incorrectly stated by Witness as (T.R.113), and recommended that Student receive his special education program in a Special Class in a Community School, with a staffing ratio of , together with the twice weekly, thirty minutes per session, in a group of three and once weekly, thirty minutes per session, individually. The Committee terminated , but initiated once weekly, thirty minutes per session, in a group of three. The Committee also recommended that Student receive accommodations in State and local assessments; namely extended – double - time; directions read and re-reread aloud, and in a separate location.(Exhibit 1). Thereafter, a Final Notice of Recommendation was provided to Parents, offering Student placement at (Exhibit 5). By correspondence from Parents, dated August 3, 2011, Parents expressed dissatisfaction with the Committee’s I.E.P., and noted their inability to view the proffered class as the school was closed. (Exhibit G). Parents expressed the same sentiments in correspondence sent to the Committee, dated August 23, 2011 (Exhibit H). By further correspondence dated October 7, 2011, Parents reviewed their prior correspondences and advised the Committee of their rejection of the proffered placement and of their unilateral placement of Student again at for the 20112012 school year and of their intent to seek public funding for such placement (Exhibit I). I note that such correspondence was similar to correspondences sent by Parents to the Committee in both 2009 (Exhibit D) and in 2010 (Exhibit E).

It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parents’ claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 01-052). Further, the fact that the facility selected by the Parents to provide special education services to the Child had not been approved as a school for children with disabilities by the State Education Department of the State of New York is not dispositive of a Parents’ claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). In both decisions, the Court noted that:

“Parents who unilaterally place a student

in a private educational facility … do so

at their own financial risk”

(see 471 U.S. 359 at 373)

The Supreme Court of the United States, in deciding the matters of School Committee of the Town of Burlington v. Department of Education of Massachusetts, 41 U.S. 379; 105 S. Ct. 1996; 85 L. Ed. 2d. 385 and Florence County School District Four, et al. v. Carter by Carter, 114 S. Ct. 361 (1993) addressed the issue of reimbursement for parents who unilaterally place their disabled child in a private school setting, whether State-approved (Burlington) or non-State approved (Carter) and established that, to properly determine the issue of reimbursement, what had to be considered was:

“Whether the placement proposed by the school district was appropriate;

Whether the placement unilaterally selected by the parent was appropriate; and

Whether equitable considerations supported an award.”

I find that the reasoning behind such decisions applies equally to Parents’ application for retrospective funding for the services Parents have obtained for Student (see Mr. A. ex rel. D. A. v. NYCDOE, Lexis 9475 (February 2011). However, the availability of direct retrospective payments now permitted by Mr. A. ex rel. D. A. v. NYCDOE, Lexis 9475 (February 2011), still requires the establishment of the Burlington Prerequisites.

BURDEN OF PROOF

In applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented in this proceeding, that I first determine whether or not the School District offered to Student a free, appropriate public education. The burden of establishing that it did so rests with the District, pursuant to the provisions of New York State Education Law §4404(1). I will review and consider whether District has successfully borne such burden. Should I determine that District has successfully established that it offered Student an appropriate educational program, my inquiry into Parents’ request for direct retrospective payment will cease at that point, for if a district has offered an appropriate program, Parents’ right to direct retrospective payment must be denied. If it is determined that District has failed to establish that it offered Student an appropriate program, I must then determine the appropriateness of the Parents’ unilaterally-selected educational services. The burden of establishing such appropriateness rests upon Parents (New York State Education Law §4404(1). Should Parents fail to establish the appropriateness of the unilaterally-selected services, Parents’ request for direct retrospective payment must be denied. If the unilaterally-selected educational services are determined to be appropriate, I must then review the equities in order to determine whether equitable considerations favor an award of direct retrospective payment. It is my determination that the burden of establishing that such equities favor an award of direct retrospective payment rests upon District.

It has been often stated by the State Review Officer (see Application of the Blank, Appeal No. 11-105), that a free and appropriate public education (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 Committee on Special Education (

CSE) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). However, that is not exactly accurate. For, while school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at 4 [2d Cir. Jan. 16, 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at 10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA as amended, 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 Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at 7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

It was further noted by the State Review Officer in the above-cited Decision that 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]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).17 The student's recommended program must also be provided in the Least Restrictive Environment (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]; see P. v. Newington Bd. of Educ., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). A school district may be required to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see also20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). 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 (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). 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 Parent" (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]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (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 [citations omitted]; see Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). While such benchmarks, garnered from different sources and different courts dealing with various factual presentments, appear to establish varying standards for the basis of determining whether a particular special educational program meets the obligation imposed upon districts to provide a free, appropriate public education, I shall employ, in my review and determination of the issues raised in Parents’ Due Process Complaint, the evaluation of whether the program offered to Student by District was reasonably calculated to provide Student with some meaningful educational benefit.

THE 2011- 2012 SCHOOL YEAR

As previously noted, the Committee which met on April 11, 2011 recommended a special education program for Student consisting of placement in a Special Class in a Community School, with a staffing ratio of , together with the twice weekly, thirty minutes per session, in a group of three and once weekly, thirty minutes per session, individually. The Committee terminated , but initiated once weekly, thirty minutes per session, in a group of three. Witness testified that the Committee, in reviewing Student’s program and determining Student’s program for the following school year, relied on teacher estimates from the staff at , the written Teacher reports provided by the staff at , and on a review of the Observation Report of the preceding November for determining Student’s abilities, present levels of performance, social and emotional deficits and goals (T.R.115). Witness testified that the Committee had considered other placements, such as an class, but felt that Student had a need for a small classroom setting to address Student’s deficits, as (T.R.120). Witness noted that the Committee had rejected recommending placement in a Special Class in a Special School, as Student would not have the opportunity to interact with normally-developing peers in such setting and the Committee had the obligation of providing Student with a program in the Least Restrictive Environment (T.R.121). Witness noted that the Committee determined that a Special Class with a staffing ratio of would afford Student the small class setting his needs and deficits required.

Parents raise objections to the sufficiency of the bases for determining Student’s present levels of performance. However, Witness testified that such information was obtained directly from the Progress Reports prepared by those who were working with Student at , While other sources of information might have provided the Committee with more detailed information regarding Students’ performance levels or more insight into Student’s deficits, it is my finding that the Committee’s failure to secure such additional information does rise to the level of fatally impairing the planned program. That is, while perhaps a procedural error, it does not rise to the level of denying Student a free, appropriate public education.

Parents also contended that they were not provided with a list of those expected to participate in the April 11, 2011 meeting. Again, perhaps a procedural failing, but one that in no way nullifies the projected program envisioned by the Committee. I find that similar complaints regarding the Committee’s failure to “adequately” discuss Student’ progress in certain areas are without merit. Parents had a number of challenges to the sufficiency of the Annual Goals contained in the proposed program for Student for the 2011-2012 school year. My review of the numerous Goals prepared by the Committee sufficiently address Student’s areas of deficit in writing, mathematics, reading comprehension, decoding, expressive and pragmatic language skills, and speech (Exhibit 1).

Parents also challenge the appropriateness of the proffered placement in a class at (Exhibit A). I find, from the testimony of Witness , the Assistant Principal for Special Education at that facility, that the school had available space to seat Student in an appropriate class and provide all necessary services. Individual instruction at a student’s own level, as well as staff trained in the and other services (T.R. 36), ensured that Student’s needs would be adequately met.

Parents note that the Final Notice of Recommendation (Exhibit 5) was not issued until July 1, 2011, which precluded Parents’ inspection of that facility until the commencement of the school year in September. In fact, it appears that Parent did not visit the site until October of 2011, as Parent wrote on October 7, 2011 of her visit and rejection of the proffered placement. Moreover, Parent had visited the placement in each of the previous two years and had rejected the program as insufficient. I find that the lateness of the issuance of the Final Notice of Recommendation had no bearing on the Parents’ enrollment of Student at for the 2011-2012 school year, which had already been completed by September 1, 2011 (Exhibit M). Further, while Parents assert that the proffered placement fails to provide Student with the level of individual attention and instruction he requires to make meaningful progress (Exhibit A), I find that such assertion is simply speculation, as Parents have consistently placed Student over the years in a small sectarian school that has as its model classes of but six or seven students. The testimony of the Principal of as to the need of Student to be educated in such a small setting is not convincing and surely self-serving (T.R. 225-226). I do not intend, by such finding, to denigrate the quality f education being offered to Student at . Parents have the right to have Student educated in whatever setting they deem appropriate for Student and have chosen to place him at . It is not the purpose of this Decision to compare programs or determine in which setting Student might better educationally address Student’s needs or advance his education. District, to prevail, need only establish that it offered Student an educational program that was reasonably calculated to provide Student with meaningful educational benefit. This it has, I find, done.

It is, then, my finding and determination that District has borne its burden of establishing the appropriateness of the special education program proposed by its Committee on Special Education for Student for the 2011-2012 school year. It is my finding that such program offered Student a free, appropriate public education

Having made such determination, I need not proceed with an evaluation of the appropriateness of Parent’ unilateral placement of Student at for the 2011-2012 school year or whether equitable considerations favor an award of reimbursement or direct payment of Student’s tuition that was incurred by such placement.

THE 2012-2013 SCHOOL YEAR

District’s Committee on Special Education convened on April 18, 2012 to conduct an Annual Review and plan Student’s special education program for the 20122013 school year. Present at that meeting were Special Education Teacher ; School Psychologist who also served as District Representative; and Parent Member . Also participating in the meeting, but by telephone, were Students; mother; , Principal of ; and Student’s then-classroom teacher at (T.R.1561-162) (see also Exhibit 6). The Committee prepared Student’s Individualized Education Program (I.E.P. ) for the 20122013 school year, in which it classified Student as having and recommended that Student receive his special education program in a Specialized Class in a Community School with a staffing ratio of , together with , thirty minutes per session, in a group of three and once per week, thirty minutes per session, individually, and , once per week, thirty minutes per session, in a group of three (Exhibit 6). Thereafter, a Final Notice of Recommendation was issued, dated August 8, 2012 (Exhibit 8), which offered Student at placement in a class at – the same placement that had been offered to Student for the prior school year. Parent wrote to the Committee by correspondence dated August 22, 2012 (Exhibit J), noting that the placement was not offered in time for Parent to visit the proffered placement before September, and also expressing her disagreement with the I.E.P. developed for Student. Thereafter, by correspondence dated October 22, 2012 (Exhibit K), Parent advised the Committee that the placement offered was not appropriate, that Student’s I.E.P. continued to be inappropriate and that Student would continue attending the unilaterally-selected program at and that Department funding for such would be sought.

I will not restate the basis on which I will review the right of Parents to seek either reimbursement or direct funding for the unilaterally-selected placement of Student in a private sectarian educational facility or the application of the provisions of the Burlington prerequisites, as they have been extensively set out already in this Decision. I will, therefore, simply proceed to a consideration of the first of such prerequisites; such being: did the District and the Department of Education offer to Student a free, appropriate public education.

District Witness testified that the Committee that met on April 18, 2012 to prepare Student’s educational program for the 2012-2013 school year had relied on the estimates of Student’s then-classroom teacher at to ascertain Student’s then-current levels of performance (T.R.169), as well as on the written Progress Reports that had been provided to the Committee by the staff at the (T.R. 169-170) (see also Exhibit U). Based upon such input, the Committee noted that, in the area of Decoding, Student was functioning at a ; in Reading Comprehension at a ; In Math Computation at a ; in Math Problem Solving at an ; in Spelling at a ; and in Written Language at a (Exhibit 1). The I.E.P. also contains extensive narrative of the classroom teacher’s descriptions of Student’s academic achievement, functional performance and learning characteristics. Witness noted that the Reports stated that Student had (T.R. 172). It was further reported that Student was (T.R. 170). Witness also stated that (T.R.185). Witness stated that the Committee also had before it the report of an Observation conducted by Special Education Teacher on March 30, 2012 (Exhibit 7), as well as the input of both Parent and the Principal of the . Witness testified that the Committee utilized proposed Goals that had been prepared and submitted by Staff at or had continued Goals from Student’s prior I.E.P. which Student had yet to master. Witness explained the reasoning of the Committee in making its recommendation for placement in a , noting that such program could address his academic needs, while the would be able to address Student’s could address Student’s (T.R.170-172). Witness testified that the Committee had considered other possible placements, such as placement in a Special Class in a specialized School, but felt that was too restrictive for Student and that the academic and social levels of such programs were far below Student’s abilities, while placement in a Community School would afford Student to opportunity to interact, albeit on a limited basis, with normally-developing peers (T.R.171).. Witness , the Assistant Principal in charge of Special Education Services at testified as to the availability of a placement at the facility for Student and the appropriateness of the program for5 Student and of its ability to address Student’s needs.

Parents’ objections to the proposed program include the assertion that the present levels of performance are insufficient in providing a baseline to measure progress, especially in the areas of language and communication, writing, spelling, attentional skills and socialization skills. Those performance levels were provided to the Committee by the staff at . I find that they are sufficient. Parents also allege that the Committee failed to review Student’s Goals on his prior I.E.P. and did not discuss new Goals at the meeting. However, District’s Witness clearly stated that the Committee did discuss both Student’s performance on the Goals contained in Student’s prior I.E.P. and continued those which Student had yet to master, as well as adding new Goals as were provided by Staff at the . (T.R.188). Parent’s testimony regarding the creation of those Goals was nebulous and far from establishing Parents’ contention (T.R.309). Similarly, I find that Parents’ contention that the Goals contained in Student’s I.E.P. are vague, inappropriate and insufficient not supported by a reading of those Goals.

Parents challenge the appropriateness of the recommendation that Student receive his special education program at , contending that such placement will not afford Student with the level of support and attention he requires and that the classroom is cluttered and distracting.(Exhibit A).. There is, of course, no independent evidence of the degree of support Student requires, as Student ass historically been provided his educational placement for a number of years only at . It is but speculation to contend that the program offered by District in a setting cannot meet those needs. The availability of differentiated instruction and appropriate will, I find. Provide Student with the educational program he requires.

It is my finding and determination that District has borne its burden of establishing the appropriateness of the special education program proposed by its Committee on Special Education for Student for the 2012-2013 school year.

It is my further finding that such program, as established by the Individualized Education Program created by District’s Committee on Special Education on April 18, 2012 for the 2012-2013 school year, together with the proffered placement of a class at , constituted an offer to Student of a free, appropriate public education

Having made such determination, I need not proceed with an evaluation of the appropriateness of Parent’ unilateral placement of Student at for the 2012-2013 school year or whether equitable considerations favor an award of reimbursement or direct payment of Student’s tuition that was incurred by such placement.

Based upon the above, it is HEREBY ORDERED that Parents’ Due Process Complaint which sought reimbursement or direct funding to for the unilateral placement of Student at that educational facility for the 2011-2012 school year is denied and Parents’ Due Process Complaint be, and the same hereby is, DISMISSED, and it is

FURTHER ORDERED that Parents’ Due Process Complaint which sought reimbursement or direct funding to for the unilateral placement of Student at that educational facility for the 2012-2013 school year is denied and Parents’ Due Process Complaint be, and the same hereby is, DISMISSED Dated: June 20, 2013

________________________

JAMES P. WALSH, ESQ.

Impartial Hearing Officer JW;mv

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

A. Parents’ Due Process Complaint Notice, dated 11-6-12 (4 pages; Parents)

B. Department of Education’s Response to Parents’ Due Process Complaint, dated 11-16-12 (4 pages; Parents)

C. Letter to Parents Regarding C.S.E. Meeting, dated 3-28-12 (2 pages; Parents)

D. Letter from Parents to C.S.E. Chairperson, dated 9-18-2009 (2 pages; Parents)

E. Letter from Parents to C.S.E. Chairperson, dated 9-28-2010 (1 page; Parents)

F. Letter from Parent to C.S.E. Chairperson, dated 3-28-11 (1 page; Parents)

G. Letter from Parents to C.S.E. Chairperson, dated 8-3-11 (2 pages; Parents)

H. Letter from Parents to C.S.E. Chairperson, dated 8-23-11 (2 pages; Parents)

I. Letter from Parent to C.S.E. Chairperson, dated 10-7-11(2); Fax Confirmation (1) (3 pages; Parents)

J. Letter from Parents to C.S.E. Chairperson, dated 8-22-12 (1 page; Parents)

K. Letter from Parent to C.S.E. Chairperson, dated 10-22-12 (2 pages; Parents)

L. Description of Program – School 2011-2-12 School Year (1 page; Parents)

M. Letter from Parent to C.S.E. Chairperson, dated 8-22-12 (1 page; Parents)

K. Letter from Parents to C.S.E. Chairperson, dated 10-22-12 (2 pages; Parents)

L. Description of Program – 2011-2012 (1 page; Parents)

M. 2011-2012 Letter of Agreement between and Parents, dated 9-1-11(1); Addendum to 2011-2012 Letter of Agreement, dated 9-12-11 (1) (2 pages; Parents)

N. Description of Program – 2011-2012 at (1 page; Parents)

O. 2012-2013 Letter of Agreement between and Parents, dated 9-3-12 (1); Addendum to 2012-2013 Letter of Agreement, dated 9-13-11 (1) (2 pages; Parents)

P. Parents’ 2010 Federal Tax Return – Form 1040- undated and unsigned (2 pages; Parents)

Q. Parents’ Tax Return Transcript for 2011 (4 pages; Parents)

R. Copies of Cancelled Checks from Parent to, of various dates (5 pages; Parents)

S. New York State Common Core Standards for (18 pages; Parents)

T. Progress Reports for 2011-2012 Parents School Year (9 pages; Parents)

U. Progress Reports for 2012-2013 Parents School Year (7 pages; Parents)

1. Student’s I.E.P. as Created by District’s C.S.E. DOE dated 4-11-11 (15 pages; DOE)

2. Report of Observation of Student by, dated 11-23-10 (2 pages; DOE)

3. Letter from Parent to C.S.E., dated 8-23-11 (4 pages; DOE)

4. Letter from Parent to C.S.E., dated 10-7-11 (1 page; DOE)

5. Final Notice of Recommendation to Parents, dated 7-1-11 (1 page; DOE)

6. Student’s I.E.P. as Created by District’s C.S.E. DOE Dated 4-18-12 (12 pages; DOE)

7. Report of Classroom Observation of Student by School Psychologist, dated 3-30-12 (1 page; DOE)

8. Final Notice of Recommendation, dated 8-7-12 DOE (1 page; DOE)