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: Parents

Dates of Hearing: March 20, 2013

May 30, 2013

July 2, 2013

Actual Record Closed Date: July 27, 2013

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 20, 2013

Esq. Attorney — Parents

Mother — Parents

Father — Parents

Esq. Attorney — DOE

Dr. School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 30, 2013

Esq. Attorney — Parents

Mother — Parents

Father — Parents

Student’s Teacher, — Parents

(via telephone)

Director of Admissions — Parents

(via telephone)

Esq, Attorney — DOE

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

Esq. Attorney — Parents

Esq. Attorney — DOE

On March 20, 2013, May 30, 2013, and July 2, 2013, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

The proceeding was initiated at the request of the parent by correspondence dated December 6, 2012. (Ex. 1) I was appointed Impartial Hearing Officer on December 7, 2012. I was available to conduct a hearing within 14 days. At a telephone conference with the parties conducted on January 4, 2013, hearings were scheduled for February 8, 2013 and March 20, 2013, the first mutually available dates for the parties, their witnesses and the hearing officer. The February 8, 2013 hearing was thereafter adjourned at the request of the DOE and without objection from the parent. (T. 5, Ex. I)

The parties moved to extend the initial compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing arguments. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and my written decisions were provided to the parties. (T. 5-6, 126-128, 233, 275, 280 , Ex. II)

The current compliance date is August 16, 2013. The record closed on July 27, 2013, upon my receipt of the final transcript.

POSITIONS OF THE PARTIES

The parents assert that the July 26, 2012 IEP created by the CSE for the 20122013 school year is procedurally and substantively defective specifically claiming, among other things, improper CSE composition, inappropriate goals and objectives, a failure to appropriately consider relevant documentation in making the recommendation and that the recommended program, an ICT class with SETSS and Occupational Therapy (“OT”), was not appropriate for this student in view of her needs. The parents also assert that the recommended placement was not appropriate. They claim that and Center (“ ”), the placement they unilaterally selected is appropriate and that there are no equitable factors that would bar or limit DOE funding for that placement. They seek reimbursement for the portion of the tuition paid by them and that the DOE directly pay for the balance.

(T. 304-322, Ex. 1)

The DOE asserts that it provided a free appropriate public education (“FAPE”) with an IEP developed in accordance with all requirements, a program recommendation reasonably calculated to enable this student to make meaningful educational gains and a placement that could appropriately implement the IEP. It asserts that the parents appropriately participated in the process and their concerns were considered. Further, it claims that the parents’ placement is not appropriate because is overly restrictive and fails to provide related services as mandated. (T.280-304)

CASES PRESENTED

Lists of documents in evidence are appended.

A) DOE

The DOE presented only the testimony of Dr. (“ ”):

is a school psychologist and certified English teacher (middle school and high school) who has taught remedial reading but does not have a special education teaching certification. (T. 22, 47, 85) She participated in the CSE review as school psychologist and district representative, along with a special education teacher, a general education teacher, a parent member and the student’s parents. (T. 29, Ex. 3)

Prior to the review but on the same day, the CSE team had reviewed the student’s folder which had included the July 19, 2012 DOE psych-educational evaluation containing the results of standardized testing, the Larson evaluation, a report card, a June 21, 2012 teacher report and a math assessment.^[1] (T. 25 , 91, 100, 107 , Exs. 4, 5, 7, 8, 9)

During the meeting, the team considered information from the Larson evaluation and the July 2012 evaluations as well as the teacher report and report card which provided information about the student’s strengths and weaknesses, as well as her educational history. (T. 34-35, 36, 101) recalled certain recommendations made in the March 2012 evaluation but not whether a small class had been recommended. (T. 103-104) Bowser opined that the team had adequate evaluative material to make a recommendation. (T. 35)

The standard academic achievement scores referenced in the evaluations were, Bowser testified, generally in the average range in March 2012 and had improved or not deteriorated since October 2011. (T. 38- 45) She stated that grade equivalents were a less reliable measure but that the student’s grade equivalents had been generally at a first grade level, , and she was the time. (T. 40- 45, 96) concluded that her program was working for her and opined that the teacher report was consistent with that conclusion.

(T. 46-51, Ex. 8) She also noted that the student’s full scale composite IQ was in the upper limits of the average range and overall her intellectual functioning was in the high average range. (T. 54-55)

stated that the IEP included adequate and accurate information about the student’s strengths and weaknesses and included information provided by the parents. (T. 56-60) The academic goals in the IEP were, she testified, linked directly to the student’s challenges as stated in the IEP, drafted by the special education teacher and discussed at the review and no objections were made. (T. 61-76) stated that the ICT recommendation was appropriate in view of the student’s improvement in that program but that SETSS was added to provide additional support based upon parent input about dyslexia and reading difficulties as well as certain weaknesses reported. (T. 77, 79-81) She testified that all participants were allowed to express opinions no objections to the recommended program were made at the review. (T. 33, 81) Bowser opined that the student would have made meaningful progress if the IEP was implemented as written.

(T. 82)

although the tests were conducted in March, the report was not sent to parents until late April and was transmitted shortly thereafter to the CSE. (Ex. 1) Consequently, that evaluation is referred to herein as the Larson evaluation.

B) Parents

The parents presented the testimony of: , the student’s special education teacher at (“the teacher”); (“the director”), the ; the student’s father (“the parent”).

The director testified that is a State approved non-public school for children grades K through 12. Students have average or above average range IQs, struggle most often with a diagnosed language based disability and do not have significant emotional or behavioral issues. (T. 197, 203) The school provides access to mainstream curriculum for children struggling in a mainstream environment. (T. 198) There are currently some 396 students ranging in age from 6 to 18. (T. 198) The typical class is 12 students with 2 teachers and the classes are grouped according to age, social functioning and level of language and similar factors. (T. 199, 209) Math and reading groups are formed from among several classes and are fluid depending on the student’s progress. (T. 199, 210) Most but not all students have IEPs. (T. 199, 207) Speech/language therapists, occupational therapists and a school psychologist and social worker, all appropriately credentialed, provided related services as required. (T. 199) Professional development is provided at least 6 times per year. (T. 201)

The teacher testified that she has New York State certifications for special education and childhood education (both grades 1-6), currently teaches 2nd grade at and has taught ICT classes in New York City public and charter schools, most recently in the 2011-2012 school year. (T. 142, 167) She has also been a SETSS provider. (T. 188) The student was in her class from September 2012. (T. 143-144) She described the student’s strengths as including being outgoing, loving, helpful and hardworking, However, the student is behind in reading, math and writing and required a lot of support to complete basic tasks in all subject areas. (T. 144) She requires a lot of prompting, visual cues, simplified instructions and consistent review of some key ideas and one to one help. (T. 148, 163) The student has been diagnosed with with written instructions and worksheets. (T. 148-149) Math skill is impacted by , a math disorder, and by her reading difficulties which affect both doing calculations and reading problems, resulting in, among other things, the need for ongoing teacher support. (T. 149, 178) Her diagnosed require frequent check ins with the teacher and results and a ticket behavior plan is utilized to reduce that. (T. 149, 166-167) The student receives one to one attention several times a period for from 3 to 15 minutes each time. (T. 179-180)

The student is in a class with 12 students and an assistant teacher, also certified in early childhood and special education (grades 1-6). (T. 144-145) Art, music and physical education are also provided but with other teachers. (T. 163-164) All students are 7 to 8 years old and classified as speech language impaired, and and their needs are similar to this student’s. (T. 146) Curriculum is based on common core standards for social studies, Fundations for reading, Saxon curriculum for math and Being a Writer for writing, and the Science Curriculum and the Science 21 curriculum. (T. 146, 162) For reading instruction, she is in a group of 5 and for math instruction in a group of 6 and the grouping is based upon observed and assessed needs (T. 150, 153, 156) Instruction in those groups is provided daily. (T. 157, 159) Appropriate modifications are made with regard to instruction in other academic areas. (T. 161, 162 ) Counseling is provided to this student once per week for 45 minute sessions in a group of 6. (T. 166) The student received OT from a certified provider once per week for 45 minutes in a group of no more than 6. (T. 168-169, 183) The goals being worked are similar to the IEP goals.

(T. 170) Lunch is with some 60 other students and 6 teachers and recess with 24 students and 4 teachers who help the students with social problems, among other things, and this student seeks help on an average of twice per recess period. (T. 164-165, 180-182)

staff meet formally bi-weekly and informally daily and this student needs are discussed. (T. 147, 177) Professional development activities are provided. (T. 167) There is frequent parent-teacher interaction. (T. 173)

At the beginning of the school year, she reviewed the student’s IEPs and former teacher reports and conducted formal and informal assessments. (T. 148) The student’s reading level at the beginning of the year was , and she should have entered (T. 151) The student’s math level at the beginning of the year was . (T. 154) The student has progressed in both math and reading as determined by written and oral assessments as well as observation. (T. 157-159, 185-187) Her reading group is she is at an math instructional level of . (T. 172) The student struggles with expressing her ideas on paper, her writing program has been modified to address her needs and she has progressed with regard to links, contents and organization. (T. 159-161) Social/emotional progress, based upon the student’s increased confidence and willingness to participate has been observed.

(T. 172)

The parent testified that the student, and requiring frequent refocusing, was a well in school who got along with peers and followed school rules. (T. 247-249) However, during 1st grade, the parents observed academic struggles, increasing anxiety around school, including nail biting and resistance to attending and doing homework, behavioral acting out at home and frustration and also noticed that the student was “backward writing.” (T. 216-217, 246-247, 252) The student had been evaluated at SUNY Eye Center while in pre-k and was reevaluated by the same doctor in the spring of 2012 (“the Larson evaluation”). (T. 217, Ex. A) The evaluator recommended a small class and mentioned a 12:1:1 ratio, a school program about which the parents had never previously been informed. (T. 221) Upon receiving the report on April 24, he promptly delivered it to school officials with a request for reconsideration of the student’s program in light of it and a deferral to CBST because the ICT program was not appropriate. (T. 218-219, 220, 233, Ex. 10) A reevaluation not thereafter having been scheduled, on June 1 he again wrote requesting a review because of the evaluation. (T. 219-220, Ex. 11) He received no response to either letter. (T. 212) The parent had informed the CSE in March that the student had been accepted to Churchill. (T. 220, Ex. 10)

A CSE review was held on July 26, 2012. (T. 222-223, Ex. 3) The parents discussed their concerns and brought the evaluation. (T. 224) The April 2012 evaluation was not discussed. (T. 241, 252) The parent believed that the report was not taken into consideration and that their concerns were not appropriately considered. (T. 225-226, 242, 259-260) DB discussed principally the student’s “numbers”, as well as irrelevant non-student related issues, and was constantly typing into a computer. (T. 224-225, 241, 254-255, 257-258) Goals and a program were not discussed although they were referenced by DB. (T. 222, 254) A full time special education program was not discussed. (T. 226) DB repeatedly stated “Phase One” was being implemented now and the student had to go to her district school and that school would be responsible for educating her. (T. 227, 253, 259, 263-264) There were no self-contained classes at the school in the 2011-2012 and 2012-2013 school years and no indication that there would be one for the 2013-2014 year. (T. 268-269) The parents was told that the only thing available was an ICT class. (T. 264)

By letter dated August 22, 2012, the parents had informed the CSE that the student would be attending Churchill until the DOE provided an appropriate placement and received no response. (T. 227-228, Ex. L) They signed a contract on August 23 because otherwise the student would have lost the spot but would have removed the student and sent her to public school if an appropriate placement was offered. (T. 230, Ex. B) A previous deposit of $5000 had been made to hold a place for the student. (T. 231, Ex. D) The parents are not financially able to pay the balance of the tuition and obtain reimbursement. (T. 232-233, 238-239) It was the understanding of the parent at the time the contract was executed that unless an appropriate DOE placement was made, he was contractually liable for the balance and that the student would not be permitted to continue at Churchill. (T. 234-238)

The parents have observed improvement academically and in the student’s selfconfidence and attitude to school at Churchill. (T. 229)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Initial Factual Findings

The following is substantially undisputed and persuasive. Where a specific credibility finding has been required I have so stated. (Record references not specified below are stated above.)

At the time of the CSE review, the student was about 7 years old and attending a 1st grade ICT class in PSXXX (“the school”), a community school. That school was her district school under Phase I. (T. 253, 278) Her disability classification is learning disabled and that classification is not in dispute in this proceeding. (Ex. 3)

The student was evaluated in preschool at the suggestion of a teacher. (T. 217) Services received during preschool included a SEIT and occupational therapy (“OT”).

(T. 215) She received , both in public school. (T. 215-216) The student was again evaluated in 2011. (Ex. 1) The record indicates that the CSE convened at some point in March-April 2012 with regard to the student’s program but the record indicates no details concerning what occurred. (T. 265-266, Ex. A) It appears, however, the CSE did not change or supplement the student’s program. I note with regard to that conclusion that DB testified that SETSS was added in a later review. The parents, however, were considering whether another program would be required and on March 2012, they paid a $ 5000 deposit to hold a place for the 2012-2013 school year at , an NPS. (Ex. D)

In March 2012 the student had been independently tested again for another independent evaluation (“the Larson evaluation”) which report, the parent credibly testified, was received in late April and promptly delivered to the school with a request for a review for CBST referral and a reminder that the student had been accepted at . (T. 218, Exs. 1,10) No response was received.

The Larson evaluation reported diagnoses and It noted and math, specifically , . Dr. recommended placement in a small class designed to meet the academic needs of dyslexic children and stated that the program at that time provided was not adequately meeting her needs. (Ex. A) On June 1, 2013, the parents again informed the CSE of their concerns and referenced their earlier request for a review. (Ex. 11)

The CSE did not convene to develop a program for the 2012-2013 school year until July 26, 2012, well after the 2011-2012 school year had concluded. (Ex. 3) It added SETSS, recommending for 2nd grade an ICT class, SETSS for five (5) periods per week (4 for ELA and 1 for math) and Occupational Therapy (“OT”) 2x30 (2:1). (Ex. 3)

There is no placement recommendation document in the record but the parents acknowledged receiving a placement at the same school the student had been attending.. (Ex. L) The parents were therefore familiar with certain aspects of the school. The parent credibly testified that he nevertheless had requested an opportunity to see the 2nd grade ICT class in connection with a 2012-20`13 recommendation but had been denied. (T. 266)

By letter dated August 22, 2013, the parents informed the district that they had concluded that the program and placement were not appropriate and that they would enroll the student at Churchill.

On August 23, 2012, they executed a contract for the 2012-2013 school year which states that the total tuition for that year is $46,000. (Ex. B)

Further factual findings concerning the CSE review and placement, equitable considerations and the parents’ payment obligation are stated below. (Record references not specified above are stated above.)

B. Analysis

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at

806, n.7 (N.D. N.Y. 1998)

Prong 1

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (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). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. 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. § 300.550[b]; 8 NYCRR 200.6[a][1]).

I find, for the reasons discussed below that the DOE has failed to meet its burden to establish that it provided a FAPE

1) I conclude that a program other than ICT with or without the addition of SETSS was never actually considered by the CSE. The IEP indicates that no other programs were considered. (Ex. 3-12) testified that had they been it would have been referenced. (T.

121) She stated that had anything been discussed it would have been limited to an ICT program. ((T. 121) She stated that had she been aware of a small class recommendation it would have been discussed, and I conclude, noted on the IEP. (T. 121)

However, it is undisputed that the review was at parental request. (T. 123-124) Credible evidence, documentary and testimonial, shows that the parents thought that the ICT was not meeting the student’s needs. Indeed they were seeking a deferral to the CBST. The parent obtained an independent evaluation which he provided to the CSE for the purpose of having it considered and its recommendations implemented. The specified recommendations included “small class size” as well as daily one to one instruction. It also stated that her present program was not adequately addressing the student’s needs. I conclude that this was sufficient to suggest that something smaller than an ICT class was being recommended had this been thoroughly read at the time of the review. I reject a proposition that because a proposed specific class size was not specifically stated by an independent evaluator, the CSE was not on notice of his general opinion.

Further, the parent testified credibly that the evaluator had mentioned a class and that that was the first time he had heard of that. (T. 221) The parents were also knowledgeable about the ( ) and had paid a substantial sum to assure an opportunity for the student to attend. The parent’s testimony that he informed the CSE about the student’s needs and of concerns about the ICT class was also credible. (T. 260) It is not credible that he would not have at least attempted to tell the CSE that the ICT class was in his view too large and that a smaller class was required along the lines of what Churchill provided.

Rather, I conclude that the evidence supports the parent’s opinion that the CSE was literally not listening to the parents’ views. I note that the IEP contains language that suggests it was looked at some point for some purposes but that does not contradict my conclusion.

In these circumstances I conclude that the review was procedurally defective. “Procedural violations, however, only …[automatically entitle the parents to reimbursement] if ‘they impeded the child’s right to a [FAPE],’ significantly impeded the parents’ opportunity to participate in the decision making process’ or ‘caused a deprivation of educational benefits’ [citations omitted]” R.E. v. New York City Dept. of Educ., 694 F. 3d 167, 190 (2d Cir 2012). I conclude that in this matter the parents’ opportunity to participate in the decision making process was significantly impeded. I therefore find that the DOE has failed to establish that it provided a FAPE In view of the foregoing finding, I do not address the parents’ other claims regarding procedural and substantive violations and addressed to the placement offered.

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

I find that the parents have met their burden to establish that the placement they selected is reasonably calculated to enable this student to receive meaningful educational benefits by providing a program that meets her unique needs.

Initially, I note that is an NPS indicating that its program is satisfactory to the State Education Department. Further, I find credible the testimony of director and teacher. Based upon that testimony I find that it has been demonstrated that the program is aligned with the student’s present levels of performance and identified management needs, serves students, as this one is, who have average or above average cognitive levels and who have special learning needs and are not able to function appropriately without substantial teacher support, provides special class settings and groups this student with similarly functioning students. It has therefore been demonstrated that the student’s core needs were provided. Further, although not required, progress has been shown. Although the DOE argues that Churchill does not fulfill the CSE’s OT mandate, it is well established that not every service necessary to maximize student potential is required to be shown. Appeal No. 11-017. With regard to that claim, I also note that the CSE did not receive any evaluation or progress report but simply continued the prior service in the absence of a report. (T. 63-64, 66 The DOE also asserts objections based upon LRE concerns. However, it is well established that a parent is not held to the same standards with regard to LRE as is the district. Frank G.

Prong 3

The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the district and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. Moreover, even the signing of a contract prior to an IEP review is not dispositive of a claim for DOE payment. Appeal No. 05-087.

In this matter, the parents cooperated with the CSE with regard to providing evaluations, there is no claim that they impeded the development of an IEP and they notified the CSE promptly concerning their concerns, their interest in Churchill and their withdrawal of the student. In contrast, the CSE never formally responded to their requests for a reconsideration and finally scheduled a review when staff who knew the student appear to have been unavailable. I find no basis for the denial or limitation of DOE funding here. Further, parent’s testimony concerning his inability to pay and seek reimbursement was credible.

However, the DOE asserts that the parents had no obligation to pay if they lost, and are therefore not entitled to direct payment. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). It claims that since the contract includes a release in certain circumstances and the relevant school years is already over with the student having received the services from the school. (Ex. B) I find this claim lacks merit and, further, note that a strict reading of the provision the DOE relies upon releases the parents only if the parents have accepted or an Impartial Hearing Officer has found that the DOE offered an appropriate placement. Neither is the case here.

ORDER

The student was entitled to for the 2012-2013 school year at DOE expense. The DOE shall immediately reimburse the parent for the tuition paid by them and make direct payment of the balance upon submission of appropriate documentary evidence of charges and payments.

Dated: August 12, 2013

______________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

JS:gc

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTS ENTERED INTO THE RECORD

1 Due Process Complaint, 12/6/12, 2 pgs. Department of Education

2 Due Process response, 12/11/12, 4 pgs. Department of Education

3 IEP, 7/26/12, 13 pgs. Department of Education

4 DOE Report, 7/19/12, 4 pgs. Department of Education

5 , 3/4/12, 5 pgs. Department of Education

6 DOE Language Identification Survey, 6/28/10, 2 gs. Department of Education

7 1st G. 2011-2012 Report Card, undated, 4 pgs. Department of Education

8 Teacher Report, 6/21/12, 2 pgs. Department of Education

9 Early Childhood Assessment in Math,undated, 1 pg. Department of Education

10 Let. From Parent re: , 4/29/12/1 pg. Department of Education

11 Let. From Parent re:request for Meeting, 6/1/12, 1 pg. Department of Education

12 Fountas & Pinnell Text Leveling Correlations, Department of Education

10/4/04, 1 pg.

A Rpt-Dr. , with cover sheet, 4/24/12, 6 pgs. Parents

B Enrollment Contract, 8/23/12, 2 pgs. Parents

C Proof of Payment, 2/20/13, 1 pg. Parents

D Tuition Deposit, 3/8/12, 1 pg. Parents

E Response to Subpoena Cover Let, 2/21/13, 1 pg. Parents

F Churchill Mission Statement, undated, 2 pgs. Parents

G OMITTED

H Class Schedule, 2012-2013, 1 pg. Parents

I Behavior Mgmt Prog., undated, 2 pgs. Parents J Elem Mid Year Rpt. Cd., 01/2013, 15 pgs. Parents

K Parents Tax Return 2012 Tax Year, 2 pgs, Parents

L 10 Day Notice to Dist. with Fax Rcpt. 8/23/12, 2 pgs. Parents

I Prehearing Conference Memo Impartial Hearing Officer

II Compliance date extension decisions Impartial Hearing Officer

III Subpoena Impartial Hearing Officer

Footnotes

[1] during her testimony referred to a March 2012 evaluation (Ex. 5) March 2012 results were referenced in the July 2012 evaluation by a DOE psychologist. (Ex. 4) However, the persuasive evidence shows that