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: April 12, 2013

April 18, 2013

May 2, 2013

Actual Record Closed Date: July 12, 2013

Hearing Officer: Timothy M. Mahoney, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 12, 2013

LAWRENCE WEINBERG, Attorney — Student

Parents

District Representative — DOE

(Via telephone) — DOE

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

LAWRENCE WEINBERG, Attorney — Student

Parents

(Via Telephone) — Student

Director (Via Telephone) — Student

Teacher (Via Telephone) — Student

Assistant Director (Via Telephone) — Student

(Via Telephone) — Student

District Representative — DOE

(Via Telephone) — DOE

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

LAWRENCE WEINBERG, Attorney — Student

Parents

District Representative — DOE

On December 20, 2012, I was appointed to conduct an impartial hearing pursuant to the Individuals Act (“IDEA”), 20 U.S.C. § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute of a student (“student” or seeking an appropriate education placement from the New York City Department of Education (“DOE”) for the 2012-2013 school year. Specifically, the parents seek the equitable remedy of tuition reimbursement for unilateral placement under Florence v. Carter.

As more fully discussed below, I find that (a) the DOE failed to meet its burden that a free appropriate public education (“FAPE”) was offered to for the 2012-2013 school year; that (b) the parents met their burden in demonstrating the appropriateness of and (c) the equities support an award of tuition reimbursement.

BACKGROUND

For the 2012-2013 school year, has been years old, and has received services since her Developmentally,

The parties met to hold a Committee on Special Education (CSE) meeting on February 7, 2012. After visiting the recommended placement, the parents write to the DOE expressing their concerns regarding the proposed placement. On September 14, 2012 and having received no response from the DOE, the parents provided the DOE with the statutory Ten-Day Notice of their intent to unilaterally at the Academy thereafter began instruction at on September 24, 2012.

This case was initiated as a result of a demand for due process (“Demand,” see P-

A) filed by the student’s Parent through her advocates, Susan Luger Associates, and received by the Department of Education Impartial Hearing Office (DOE-IHO) on or about December 19, 2012, and identified as NYC Case No. 142941. Thereafter, Lawrence Weinberg, Esq., entered a Notice of Appearance on behalf of the family and student.

In their demand for due process, the parents raised the following issues to be decided at hearing:

1) The CSE which convened on February 7, 2012 failed to develop an IEP which offered the student FAPE, specifically:

a) Erroneously classifying as a student with

b) Meeting to early and not taking into account subsequent progress during the remainder of the 2011-2012 school year,

c) Failing to consider the student’s , thereby denying the parents their ability to participate in the CSE progress,

d) Failing to conduct any for the CSE to review, thereby failing to base their recommendation on results,

e) Failing to develop goals in regards to the student’s present levels of performance, adequate in number and scope, with clear measurement criteria, and not reasonably calculated to confer educational benefit,

f) Failing to discuss the student’s academic management needs or promotional criteria at the CSE meeting,

g) Failing to include the support of a on IEP, despite agreement of the CSE

to recommend a

h) Failing to provide an appropriate post-graduation transition plan ,

i) Failing to include the attendance of a teacher, general education teacher, and district representative which met the requirements of the IDEA and implementing regulations, and

j) Recommending an inappropriate program for contrary to the recommendations of her independent without taking into account the opinions of the parents, and which fail to offer adequate or appropriate instruction, supports, supervision, or services to meet the needs, and lacking opportunities as required by the student;

2) The proposed placement, classroom – the s unique needs because:

a) Prior written notice was not provided to the parent,

b) The placement female student, ., and would offer limited opportunities to develop social relationships,

c) Lack of opportunity instruction,

d) The proposed placement placed too great an emphasis on adapting to the community rather than academics,

e) The students placed in the proposed placements were all classified as autistic, thereby failing to provide an appropriate peer group for

3) That due to the DOE’s failure to offer the student FAPE, the parents unilaterally at the , and seek the equitable award of tuition reimbursement;

4) The student is entitled to education services / to her unilateral placement;

and

5) The equities support the parents in this matter, and do not warrant any reduction in any tuition award. See P-A.

The DOE began presenting testimony on April 12, 2013, finishing up their case in chief on April 18. The parents presented testimony in support of their claim on April 18, 2013. The parties made oral closing arguments on May 2, 2013. A full list of hearing participants precedes this decision; a list of exhibits1 accepted into the record follows.

STANDARD

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010). The Second Circuit stressed that “courts must evaluate the adequacy of an IEP prospectively as of the time of the parents’ placement decision[.]” R.E. v New York City Dept. of Educ., 694 F.3d 167, 195 (2d Cir 2012). In light of the Second Circuit’s decision, I have not considered whether the proposed placement could implement the challenged IEP. See Tr. 8-9. In that the student did not attend the placement, and the parents did not challenge whether the placement could implement the CSE’s recommended educational program, there is no issue for me to determine regarding the placement in and of itself.

The IDEA directs that my decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 415(f)(3)(i). 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). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Id., 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). 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'" Walczak, 142 F.3d at 130. 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). The student's recommended program must also be provided in the least restrictive environment (“LRE”). 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 Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132.

Not all procedural errors invalidate an IEP under the IDEA. See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decisionmaking 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)(i); 34 C.F.R. § 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

PRONG I

FAPE, at its most basic level, stands for the idea that a child’s individual needs are accounted for when constructing a program. The program addresses the child, not the child’s classification . To perform this task, stakeholders – here members of the CSE – must identify the ) of the child (present levels of performance and needs).

The statue requires this basic floor. The IDEA, among other things, ensures that students have available to them a Free Appropriate Public Education, or FAPE. 20 U.S.C. § 1400(d)(1)(A); see also Schaffer v. Weast, 126 S. Ct. 528, 531 (2005). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d); see also 20 U.S.C. § 1414(d); 34 C.F.R. § 300.320. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. Board of Educ. v. Rowley, 458 U.S. 176, at 206-07 (1982). The initial inquiry as to whether the DOE offered a student FAPE begins with an IEP that accurately reflects a student’s present levels of performance and his or her needs. 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i). Based on this information, the IEP must include annual goals related to those needs. 34 C.F.R. § 300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii). Finally, the IEP must provide for the use of appropriate services to address the student’s needs and implement the recommended goals. 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v). Thereafter, the IEP must be implemented. 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.

a) CSE Membership

The IDEA requires a CSE to include, among others, not less than one regular education teacher of the student if the student is or may be attending a general education environment. 20 U.S.C. § 1414(d)(1)(B)(ii); see 34 C.F.R § 300.321(a)(2); 8 NYCRR 200.3(a)(1)(ii). The regular education teacher "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and supports and other strategies and supplementary aids and services, program modifications, and support for school personnel." 20 U.S.C. § 1414(d)(3)(C); 34 C.F.R. § 300.324(a)(3); 8 NYCRR 200.3(d).

Dr. testified that no regular education teacher attended Tr. . The CSE noted it considered a in a community school, but “was rejected as they [the class] would not offer the support she requires Thus, the CSE considered recommending a program for situated in a community school with access to peers. Would the CSE have benefitted from the input of a general education teacher? Undoubtedly yes. Was the participation of a general education teacher necessary to offer FAPE? I find the answer here to be no: the eventual program recommendation was for a non-general education placement, as was the eventual unilateral placement. Thus, while a procedural violation, the absence of a general education teacher does not deny the student FAPE.

The IDEA also requires a CSE to include one teacher of the student, or where appropriate, not less than one provider of the student. 20 U.S.C. § 1414(d)(1)(B)(ii-iii); see 34 C.F.R. § 300.321(a)(2-3); 8 NYCRR 200.3(a)(1)(ii-iii). The Official Analysis of Comments to the federal regulations indicate that the teacher or provider "should" be the person who is or will be responsible for implementing the student's IEP. IEP Team, 71 Fed. Reg. 46670 (Aug. 14, 2006). There was no testimony as to the qualifications of the teacher who attended February 2012 CSE. However, then CSE included both a DOE employee in the role of teacher as well as a current teacher of the student. See P-B. I find that the DOE has met its burden in ensuring the participation of a at CSE meeting.

b) BIP, Observation, and Parent’s Private Evaluation

Dr testified that the CSE did not refer to the parent’s nor could he remember whether he received it or not. Tr. 100, 102-103. father testified the report was sent to the CSE. Tr. 230 (as having been sent via the advocate’s office directly to the school district). While the DOE’s representative appears to have argued the report was not sent, the testimony elicited at hearing was not so much a denial from the DOE but of ignorance. I cannot credit Dr testimony in this instance as an affirmative statement amounting to nonreceipt, and therefore find no reason to engage in an analysis of the mailing rule.

In reviewing Dr. report2, I find that it was critical that the CSE consider the during the construction of -2013 IEP. See P-C. In it, and as buttressed by testimony, the appropriateness of was questioned, classification of a

Also absent from the record is any indication that the CSE had the benefit of a current classroom observation. Certainly Dr. testified that he had not conducted one, nor could remember one being available. Tr. 101. Ironically, the CSE had available to it a recent classroom observation of contained in the . See P-C at 2-3.

Created after a comprehensive review of educational file and after an observation of

Nor did Dr recall relying on any material in making its recommendations. Tr. 105-106. I note that the IEP at issue is silent as to what, if any, material was relied upon by the committee. See P-B. In reviewing the testimony and evidence presented at hearing, I can find no support that the DOE has timely the student pursuant, or presented evidence for the argument that the parent waived . See 20 U.S.C. § 1414(a)(2)(B)(ii); Educ. Law § 4402(1)(b)(3)(d); 8 NYCRR § 200.4(b)(4). Dr. could not recall if any had been performed since 2008-2009 . Tr. 106; compare to I find that the CSE could not have met its responsibilities in formulating an IEP that offered the student FAPE without current and up-to-date evaluations. For example, was apparently in the process of making excellent progress during the 2011-2012 school year, so much that she was moving out of the into a less restrictive placement for the 2012-2013 school year – the school year at issue. See Tr. 159. The CSE is charged with developing an appropriate education plan taking into account the student’s present levels of performance. 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i). That was not done here. It is impossible to fathom that the CSE had sufficient information concerning the student’s present levels of performance without having any3 evaluative materials whatsoever. Here, I find that the DOE failed to develop an appropriate IEP for the student for the 2012-2013 school year.

Dr. likewise could not explain the absence of a education plan. Tr. 113. According to the DOE, the should have been included as a separate section in IEP, but was inadvertently eliminated or not included due to “ ”. Tr. 97-98.4 The failure to include a is a fatal flaw and a substantive denial of FAPE. On this point alone, I am forced to hold that the offered IEP fails to provide the student with FAPE.

Another absence from the IEP was the support of a testified that the CSE agreed . required the support of a , but again, “a clerical error on someone’s part5”

3 The sole document available to the CSE was the student’s report of progress from the . See Tr. 108; IHOI. 4 I note the discrepancy between the IEP and the FNR (see D-1) here. However, the sufficiency of the district's offered program is to be determined on the basis of the IEP itself. See R.E v. New York City Dep't of Educ., 785 F. Supp. 2d 28, 42 (S.D.N.Y. 2011); see also Application of a Board of Education, Appeal No. 12-039. 5 With so many clear errors in the IEP, I have a difficult time fathoming why the DOE chose to defend this case. The seminal case of R.E. cautioned parents and school districts alike that the IEP is the only document of note in considering whether the student was offered FAPE. R.E. v New York City Dept. of Educ., 694 eliminated this support. Tr. 91-92. In that the CSE apparently determined that required the support of a to receive FAPE, it is clear error for such a support to be absent from the student’s IEP.

c) Classification

In reviewing the record, I find no indication that the CSE considered or revisited the student’s classification. The parent’s argue that . I note that the Commissioner’s Regulations specify certain, additional services for student’s classified as including parent training and language instruction.

While not a member of the CSE and offered over a year after the meeting, testified that it was her opinion was misclassified, focusing more on the team had access to report, it was not considered (see above). Had it considered the , one can only imagine the opportunity to revisit classification would have been presented. However, I can identify no FAPE deprivation from this failure to reconsider classification, nor any impediment to receipt of educational benefits or the parents’ ability to participate.

d) Goals and Objectives

Regarding the goals contained in the IEP, I find that the goals developed at the meeting are far too broad to meaningfully offer benefit for the student. The IEP includes twelve goals, along with a host of short-term objectives, in the following areas:

In comparing the goals listed in February 2012 IEP with the descriptions of progress contained in IHO-I, it is apparent that the CSE copies nearly wholesale the tasks and items worked upon by the Rebecca School. According to Tina McCourt, the Director of the Rebecca School, the description of progress and proposed goals in the mid-year progress report are constructed to promote progress for L.M. over a six-month period, or

F.3d 167, 195 (2d Cir 2012)(courts must evaluate the adequacy of an IEP prospectively as of the time of the parents’ placement decision). If a service or support is not in the IEP, it may as well not exist. Here, the DOE had sole control of the contents contained in the IEP, and it is has the sole responsibility for determining that the IEP is correct. Moreover and as did not occur in the instant matter, R.E. correctly notes that the school district has two opportunities to correct an erroneous IEP in tuition reimbursement claims: once during the 10-day Notice period prior to the parents’ filing, and yet again during the resolution period. In circumstances and according to the DOE’s theory of the case, the IEP contained clerical errors, errors that likely would not have required the reassemblege of the CSE proper. See 34 C.F.R. § 300.501(b); 8 to the end of June 2012. Tr. 157-58. Likewise, the proposed goals were to be implemented at the School, which assuredly was not the placement recommended by the CSE for the 2011-2012 school year.

Dr. testified that the discussion concerning goals was lengthy wherein the team reviewed each of the sub-goals and progress as offered by the School, but otherwise was unable to recall specifics of the discussion. Tr. 94-95. There were no CSE minutes offered into evidence, nor did the DOE offer any testimony or evidence to describe the addition of new goals of subtraction of mastered goals from IEP 6 . Rather, Dr. testimony supports the idea that the information was copied wholesale into the body of the IEP without modification. The CSE’s copying of the Mid-year Progress Report for the crafting of goals for the 2012-2013 school year was ill-advised. At the very least, the CSE should have had a discussion concerning what progress was expected to make over the remainder of the 2011-2012 school year in crafting goals for the subsequent school year.

I note that the parents have argued that the since the CSE met in February, it was unable to rely upon the student’s progress report issued June 2012. See P-D. This is a different issue, and one which does not automatically invalidate the goals contained in the IEP. I do not see the timing of the meeting itself an event that renders the resulting goals inappropriate. Rather, new progress reports and commensurate progress and mastery of included goals likely would have necessitated the reconvening of the CSE to make new recommendations. In that I have found the IEP to be inappropriate for other reasons (see above), I decline to make a specific finding as to whether the DOE’s failure to reconvene following receipt of the June 2012 goals denied the student FAPE.

I find that by failing to first ascertain present levels of performance (see above), any goals developed by the February 2012 CSE are by definition inappropriate. Goals and objectives flow from appropriate present levels or performance and needs. Without such, any goals are stunted fruit, and cannot be suited to the student.

N.Y.C.R.R. § 200.5(d). It is simply inexcusable that the DOE neglected this student’s case, both pre- and post-filing of the impartial hearing demand.

Dr. testified on cross examination that he did not remember any modifications made to the goals. Tr. 111.

e) Poste-secondary Transition Planning

The IEP in question makes no mention whatsoever of the student’s when considering her post-school future, other than to write will seek vocational training services will look for employment in her area of interest…[ will live independently”. See P-B at 3. The IEP describes the student as “interested in popular music and fashion”. Id. Dr. testified that the CSE discussed post-secondary transition services but could add no details to his recollection. Tr. 93. The Commissioner’s Regulations require that:

For those students beginning not later than the first IEP to be in effect when the student is (and at a younger age, if determined appropriate), and updated annually, the IEP shall, under the applicable components of the student’s IEP,

include:

(a) under the student’s present levels of performance, a statement of the student’s needs, taking into account the student’s strengths, preferences and interests, as they relate to transition from school to post-school activities as defined in section 200.1(fff) of this Part;

(b) appropriate measurable postsecondary goals based upon age appropriate transition assessments relating to training, education, employment and, where appropriate, independent living skills;

(c) a statement of the transition service needs of the student that focuses on the student’s courses of study, such as participation in advanced-placement courses or a vocational education program;

(d) needed activities to facilitate the student’s movement from school to post-school activities, including instruction, related services, community experiences, the development of employment and other post-school adult living objectives and, when appropriate, acquisition of daily living skills and functional vocational evaluation; and

(e) a statement of the responsibilities of the school district and, when applicable, participating agencies for the provision of such services and activities that promote movement from school to post-school opportunities, or both, before the student leaves the school setting.

8 NYCRR 200.4(d)(2)(ix). On its face, the IEP neglects to include post-secondary transition goals, make recommendations for needed transition services or for the acquisition of daily living skills, or any statement of the responsibilities of the school district for the provision of such services and activities that promote movement from school to post-school opportunities before leaves her school setting. I find that this absence substantively denies the student FAPE and independently invalidates the IEP in question.

f) The Proposed Placement

the Assistant Principal of the School, testified on behalf of the DOE in defense of its proposed placement. He described the various classes available at the school: some nine different and some classes for children . He testified that he had received IEP, but otherwise had no knowledge of the student or contact with the CSE concerning her. He testified that there were two possible classes that would suit her based on the FNR and her age range.

Substantively, I find that the record supports the parents’ arguments that the recommended program was well as the support of a 1 . Neither the IEP nor the FNR provided for those supports, the absence of which are by themselves sufficient for a finding of lack of FAPE. See P-B and D-1. The absence of these supports came out on the DOE’s direct examination of Dr. I find that the DOE is estopped, and thereby impeaching its own witness, from arguing the IEP at issue offers FAPE despite the absence of these intended services. Furthermore, I am constrained to consider the IEP absent extrinsic evidence of what the DOE might have or could have offered the student had she attended the offered placement, and am unable to consider testimony of the available in the proposed placement. Rather, I find it is irrelevant to my decision as to whether the DOE was able to implement the February 2012 IEP, for the IEP in and of itself was not reasonably calculated to confer meaningful benefit to the student, nor offer the student FAPE for the school year at issue for all the reasons described above.

PRONG II AND EQUITIES

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim Florence County Sch. Dist. v. Carter, 510 U.S. 7 (1993); 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. 471 U.S. at 370-71. "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. Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412(a)(10)(C)(ii); 34 C.F.R. § 300.148.

A private school placement must be "proper under the Act." Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370. This has been interpreted to mean that the private school must have offered an educational program which met the See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 and 115 (2d Cir. 2007). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 (2d Cir. 2000). Parents need not show that the placement provides every special service necessary to maximize the student's potential. 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" Frank G., 459 F.3d at 364.

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 child, supported by such services as are necessary to permit the child to benefit from instruction.

Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65.

is a school which offers educational services to students, with a student body of children with ages ranging from . It offers instructions to children with a variety of classifications, . Tr. 187-88. Classes offered range in

Assistant Director of , testified as to structure of the school as well as her personal knowledge of At the outset, I found her testimony to be credible and reliable, and accept it as true. She testified that began attending on September 24, 2012, and receives related services in the form of and . Tr. 197.

is a NYS certified special education teacher and is teacher at . At the outset, I found her testimony to be credible and reliable, and accept it as true. She testified that students with the support of a class for one particular student, and that the class may accept to total. Tr. 165-66.

As for placement overall, Ms. described following the NYS curriculum, but individually modified for each student based on his or her unique needs. Tr. 184.

Overall, Ms. described has exhibiting while demonstrating high levels of Ms. testified that overall requires a highly structured, safe, supportive environment in which with to learn. See Tr. 166-67. were described as being on the mid-range level as compared to the rest of her class, with . Tr. 167. developed a series of goals and to guide and assess progress for the 2012-2013 school year, while describing grade level expectations for her work. See P-H.

I find that the parents have met their burden in showing provides their daughter with an educational experience individualized to her unique needs. I am similarly satisfied with the evidence presented herein that benefits from her instruction at and, certainly while not required to be shown nor indicative of whether the parents met their burden, is making more than minimal progress at her unilateral placement.

The final consideration in determining whether reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations which apply to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. at 374; see 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. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412(a)(10)(C)(iii).

Regarding the equities, I find no testimony or evidence was submitted challenging the reasonableness of the cost of the unilateral placement. See P-F. Ms. testified that tuition was reasonable at because all educational service are provided in-house, including instruction and related services. Tr. 196. I accept her uncontradicted testimony.

Regarding the agreement itself, the parent signed a “Parental Guarantee of Tuition” which requires the parent to ultimately be responsible for the cost tuition payments at should the instant impartial hearing be unsuccessful. See P-F at 1. I note that the parent has made regular good-faith payments to since initiating the instant hearing in the form of four checks totaling $38,000.00, commencing September 2012 and continuing through February 2013. See P-G. Absent evidence to the contrary, I find that the parents and have a bona fide contract through representing the parents’ responsibility for tuition payments for the 2012-2013 school year.

I further find that there is no support for the proposition that the parent failed to cooperate with the CSE, or failed to make the student available to the DOE for or other purposes. The parents here first put the CSE on notice of their dissatisfaction with the proposed placement by way of letter dated July 20, 2012. See P-E at 1. A second letter was sent September 14, 2013 putting the DOE on notice of the family’s intent to unilaterally place . See P-E at 4.

In light of the above, I find the equities support the parents’ claim.

Now, therefore, it is hereby

ORDERED that the February 7, 2012, 2012 IEP is deemed inappropriate and is nullified; and it is further

ORDERED that the CSE is directed to convene in thirty (30) days of the issuance of this decision, should it not already have done so, to consider the question of appropriate classification; and it is further

ORDERED that the DOE shall, within fifteen days of submission to the DOE by the parent of proof of payment of tuition costs to for the 2012-2013 school year, reimburse the parent for her tuition costs paid to the in a sum not to exceed the prorated tuition of seventy thousand, three hundred ($70,300.00) dollars; and it is further

ORDERERD ON CONSENT that the student continues to be entitled to the service of transportation. Dated: July 31, 2013

____________________________

TIMOTHY M. MAHONEY, ESQ.

Impartial Hearing Officer TM;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

PARENT

A Impartial Hearing Request 12/17/2012 9 pgs. B IEP 2/7/2012 16 pgs. C Jan.2012 25 pgs. D of Progress Update June 2012 16 pgs. E Parent Correspondence to CSE, dated July 20, 2012 and September 14, 2012 various 6 pgs. F School Contract with 9/21/2012 2 pgs. G Proofs of Payment to various 4 pgs. H Goals and Objectives by undated 10 pgs. I First Quarter Goals Report, Report Card, and Report Card

Comments Nov. 2012 11 pgs. J Dec. 2012 3 pgs. K Annual Review 11/30/2012 2 pgs. L Jan. 2013 10 pgs. M Fall 2008 5 pgs. DEPARTMENT OF EDUCATION.

1 Final Notice of Recommendation 6/16/2012 1 pg.

IMPARTIAL HEARING OFFICER

I Mid-Year Progress Report Dec. 2011 15 pgs.

1 References to the transcript are preceded by a “Tr.” Followed by the page number. District exhibits are denoted by the prefix “D-” and parent exhibits are denoted by the prefix “P-”.