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: July 2, 2014

July, 16, 2014

Actual Record Closed Date: July 30, 2014

Hearing Officer: , Esq

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 2, 2014

For the Student:

Advocate

Teacher - by phone

For the Department of Education:

CSE Representative - by phone

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 16, 2013

For the Student:

Advocate

Director - by phone

parent

For the Department of Education:

CSE 6 Representative - by phone

INTRODUCTION

On March 1, 2013, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).

A hearing was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence.

This matter was instituted by the impartial hearing request dated May 23, 2014 alleging that the Department of Education (DOE) failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement for the student, for the 2013-2014 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2013-2014 school year. (Ex A 1)

Relief sought includes funding or reimbursement for unilateral placement at The ), related services related to said placement and transportation. (Ex A 3)

BACKGROUND

At the time of the IEP meeting, June 19, 2013, the student was years of age, classified a grade range of grade, (Ex C 1-2), ), Is motivated and community has from reassurance, is and Management needs include a small classroom environment, multi-sensory approach, , . (Ex C 4)

IEP recommendation includes a Special Class, in a specialized school, counseling once weekly for an individual 30 minute session and a group session once weekly for a 30 minute session, , twice weekly for 30 minute sessions. (Ex C 16)

Student instructional and functional levels are indicated for reading for math. (Ex C 20)

THE PARENT’S POSITION

) presented the parent’s position, as generally reflected in the hearing request. (Ex A) clarified the total tuition “The tuition was $71,000 and then the related services and the paraprofessional are broken out, and at this point P-2 says that the parent paid $9,500 to the school, and the balance due is $98,900.” (T 80)

PARENT WITNESS

( ) reviewed her educational and professional background and testified as the student’s full time since September 2013. (T 13-14, 20 & 35) : “a special education school, it individualizes each student's education to meet their needs. It assists the students in obtaining skills that they need for success in the future. The students participate in a vocational program and they also have opportunities to interact with . I'm not sure if you want an example of that, but an example of that would be is we have a .” (T 14)

Access to typically developing peers is provided through local schools in the community, through programs like . (T 14-15) uses either a life skills and/or a common core curriculum depending on the student’s level of abilities. (T 15-16) has opportunities for staff development. (T 16) is currently a teacher for the student in question. (T 16-17)

Student is in a class of 8 total students, ages 15 to 18, and there are four other adults besides . (T 17)

Student reading and math levels vary, but average . (T 17) describes the student at the beginning of the 2013-14 school year. “she was very shy, and she with adults, with adults…so it was lunch if we go out to the community, that she was not familiar with. She had to to be . When she was in her comfort level, she was social, she was able to communicate and participate, she is a participant, she was a participant in the lessons in the beginning of the school year, but like I said, she did need to .” (T 17-18)

Student , which can affect can be . (T 18-19) reviewed the class schedule, which includes, an instructional breakfast with peers (T 20); social studies and activities of daily living which include lessons such as community signs and being in society appropriately (T 21-22); science which included learning about foods (T 22); social skills which provided an opportunity to interact with peers through a social skills game, asking questions, sharing personal information, and appropriate communication skills with different individuals (T 23 -24); lunch which took place sometimes in the community to improve communication and money skills (T 24-25); functional math which included telling time, ordering off a menu, money and measurements (Ex 25); social studies class which included community size and different careers working hand in hand with the vocational supervisor and job coaches, (T 25-26) English which included reading which was functional and trying to have the student be more descriptive (T 27); Academic Support which included pre teaching (T 27; computers which included typing and utilizing the computer functionally (T 28); cultural studies (T 28); work site is vocational training, student explored retail, office and manufacturing, a level one vocational assessment was completed (T 28-30); club s a rotating club which includes various topics such as scrapbooking, computer or cooking (T 30-31). (Ex E) spoke to the counselor on a regular basis, and consulted with the physical therapist when necessary. (T 21)

Student received regularly consulted with the speech therapist. (T 27) believes the student made progress during the 2013-2014 school year. Progress is measured through pre-tests, post-tests, communicating with therapists and observations. (T 31)

Examples of progress include the student using the internet for functional purposes, student , she was able to communicate with on familiar staff members more appropriately, was better able to order lunch and take was able to identify community signs on paper and in the community, and . (T 32-33) states that progress is reflected in tests administered to the student as well as teacher and therapist observations. (T 41) is appropriate for the 2013-2014 school year as it is able to individualize the program so the student could gain knowledge and skills she needs to be successful and function in society in the future. (T 33) the student needs a 12 month program. (T 35)

When asked if she sees regression during the breaks that occur during the school year : “Not necessarily. I work very closely with parents, so for example, even though…is not here during the summer, a lot of what she learned I sent home binders for her to be able to maintain her skills over the summer. So if I feel a student needs that to be able to retain information, then I 100% set them up for success.” (T 36) not know if there was regression over the summer.. (T 36) how she makes up tests. “I decide units that I believe are appropriate for my students to learn, and skills that they will need… for the skills that they will need in daily living, and then I provide them with a pre-test to see what they already know. If they know it and they've mastered it, then I move on to the next level, and if they don't know it, then I provide them with the materials and knowledge and learning that they need to learn the skill, and then I provide them with a post-test to see if they have learned this skill, or if they need to continue learning it.” (T 40-41)

During s class student’s do not engage in prayer. (T 42) utilized goals contained in the IEP. (T 42) notes that some goals were capable of conferring educational benefit, but not all of them. (T 43)

PARENT WITNESS

) reviewed her educational and professional background and testified as the principal, director and coordinator of all school programs (T 52-53) as “a small special education two components, it has an educational component as well as a vocational component.” (T 52)

For the 2013-2014 school year school had 37 students, all age 13 to 21, most academically below age and grade expectancy: “the goal of our program was to help the students develop work skills, develop social and educational skills, to be a member of society. We're looking for students that have the ability to be able to go to work, that will eventually learn independence, to work on academic, functional academic skills.” (T 53-54)

During the 2013-2014 school the student many times in her classroom, received reports regarding the student’s functioning and had meetings with LP and the related service support team to asses student progress. (T 55)

Student demonstrated progress . Student became more independent, a little more outgoing, took more responsibility for herself, was a little more in touch with her emotions, and had overall general growth academically and socially. (T 55 -56)

Student classroom functioning was impacted by issues that included being . (T 56-57)

Cultural studies included learning about different religions of the world, cultures and traditions without a specific religious component. (T 58-59) an appropriate placement for the student. “I really saw her thrive this year. She really became much more outgoing, her emotions were a little more in check. Again, if she didn't want to participate, she was on she didn't like but you could reason with her. She …I really saw Student is in a does have opportunities for children with 12 month IEPs. (T 60)

PARENT WITNESS

), the student’s mother, first became aware the student was not developing normally at . (T 66)

Student received . (T 66)

Student received services through the Committee on Pre School Special Education (CPSE). (T 66) in the IEP meeting of 06/19/2013. (T 66)

At the time the student , only on , gets shy, , does not hand, has an . (T 67)

IEP accurately development does not exactly reflect the student in that it does not include more information . (T 69-70, Ex C 2 & 4)

Management needs of the IEP do not include social skills and vocational skills. (T 70-71, Ex C 4) does not believe the goals are sufficient. “It doesn't actually say what the health para is going to do, it says…will improve her physical abilities, and monitor her health". I mean, I don't think that would be appropriate for her.“ (T 72-73) the student throughout the day to make sure student is safe, assists with any activity, and is there in case the student does not feel well or gets dizzy. (T 73) with the 12-1-1 program recommendation made the day of the IEP meeting. “I feel 12 kids in the class is too many…She has issues, and this, you know, the program she's in with right now, a class , 12 kids I think might be too much and too over stimulating. a site recommendation and visited the site. (T 75-76) the school was big, the class shown was too low functioning, are done in a very small room behind the cafeteria and on a stage, and the hallway was cluttered with walkers and equipment. (T 77-78) is appropriate for the student. with teachers and related service providers, and student has opportunities for vocational programming. (T 78) agreed to pay tuition for the 2013-2014 school year in the amount of $70,000.00, which did not include related services. (T 78)

If the DOE offered an appropriate public school, HW, might have decided to send her child to the public school. (T 79)

Student uses an Alphasmart to help with writing. (T 81)

DEPARTMENT OF EDUCATION POSITION

) District Representative, presented the DOE position.

At hearing the late notice received by the DOE of the scheduled hearing and sought adjournment. (T 6-7)

Parties were reminded that a notice was sent to each party advising how the matter would proceed to hearing, back on 05/29/2014. Parties should not be surprised that indeed the matter was scheduled to commence within the fourteen day timeline. Additionally no adjournment was requested nor witnesses identified who were supposedly unavailable. Adjournment request at hearing was denied. (Ex I 1) stated that witnesses were unavailable due to their being ten month employees. (T 8)

IHO reminded the parties that if there is any difficulty with securing a witness a subpoena could be submitted and issued by the IHO. This information appears in the notice previously sent to the parties. (T 8, Ex I)

DOE will rely on its submitted documents and moved forward with an opening statement. (T 8) contends that a proper meeting took place, with the student’s actual teachers, child is classified with multiple disabilities, parent unilaterally placed the child in a non approved non public school, the District does not believe the child is conferred an educational benefit at the private school, and equities favor the DOE. DOE seeks the parent complaint to be dismissed. (T 8-9)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO'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, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [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 T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; 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). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also 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).

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. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "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 CFR 300.148).

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 R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

The parent bears the burden of proof concerning the appropriateness of their unilateral placement.

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). 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]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364, quoting Rowley, 458 U.S. at 207 [identifying exceptions]). 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; see Gagliardo, 489 F.3d at 115, citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010])

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

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; 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]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-079; Application of the Dep’t of Educ., Appeal No. 07-032).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement 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 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).

DOE IEP and PROPOSED PLACEMENT 2013-2014

DOE relied solely on the documentary evidence, submitted by the parent, regarding the IEP and placement. (T 8)

Hearing officer noted several times that the IEP did not include reference to services alleged to be recommended for the student. Specifically a 12 month school year. (T 38 & 63)

Though the DOE contends the student requires a 12 month school year, the IEP offered does not reflect a 12 month school year.

IEP also doe not fully reflect level of related services to be provided the student. IEP in evidence does not include page 16 of 23, which may have been intended to include this information. (Ex C)

At the very least the IEP in evidence appears incomplete.

The IDEA—to the extent appropriate for each individual student—requires that an IEP must focus on providing instruction and experiences that enables the student to prepare for later post-school activities, including postsecondary education, employment, and independent living (20 U.S.C. § 1401[34][A]; see Educ. Law § 4401[9]; 34 CFR

300.43; 8 NYCRR 200.1[fff]). Transition services must be "based on the individual child's needs, taking into account the child's strengths, preferences, and interests" and must include "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" (20 U.S.C. § 1401[34][B]-[C]; 34 CFR 300.43[a][2]; 8 NYCRR 200.1[fff]). Accordingly, pursuant to federal law and State regulations, an IEP for a student who is at least 16 years of age (15 under State regulations), or younger if determined appropriate by the CSE, must include appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, if appropriate, independent living skills, as well as transition services needed to assist the student in reaching those goals (20 U.S.C. § 1414[d][1][A][i][VIII]; 34 CFR 300.320[b]; 8 NYCRR 200.4[d][2][ix]).

No evidence is provided that the DOE accurately developed Measurable Post Secondary Goals nor an appropriate Coordinated Set of Transition Activities. The student did complete a vocational . (T 28-30, Ex C 5 & C 17)

Measurable Post Secondary Goals, and transition needs, are generic and without any particular meaning to the student. I find these to be inappropriate. (Ex C 5 & C 6)

Coordinated set of transition activities does contain some information that appears relevant to the student’s needs. This includes identifying possible career paths and researching the requirements for each. However, this appears inadequate since the has moved beyond all of the basic and generic components of the IEP and actually had the student involved in outside community and work environments.

(T 28-30, Ex C 17 & C 18)

Under the circumstances of this case, the CSE did not evidence any appropriate process or justify the appropriateness of the transition services included in the IEP for the student. This contributed to impede the student's right to a FAPE, and parent's opportunity to participate in the decision making process regarding a provision of FAPE.

This also contributed to the deprivation of educational benefits (M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6 [S.D.N.Y. Mar. 21, 2013] [observing that a deficient transition plan is a procedural flaw]; see 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]).

I find the goals in the IEP to be inappropriate for the student.

Reading goal is generic and without any meaning that could be deemed and implemented. Included is a short term goal of “increase reading rate”. Without any indication of the student’s actual reading rate this goal is meaningless. (Ex C 6)

Writing goal fails to include the student’s use of a an Alphasmart to help with writing. This is important due to the student’s Counseling skills appear generic and do with the IEP, and by the parent, has . How is to be addressed is not included in the IEP. (Ex C 4)

Parent correctly notes that the social development does not exactly reflect the student in that it does not include more . (T 69-70, Ex C 2 & 4)

Management needs of the IEP do not include social skills and vocational skills. (T 70-71, Ex C 4)

IEP does contain goals marked “HP” which appear to be Health Para goals. An actual assignment of a health para as part of a recommended program is not included in the IEP entered into evidence. (Ex C 12)

Assuming the health para is required for the student the goals included are vague and general and not specifically tailored to meet the needs as exhibited in the IEP. For example, the health para goals do not contain any information about the student’s specific needs related to physical issue such as right side weakness or blindness, nor does it . (Ex 81, Ex C 4 & C 12)

I agree in that the goals are not sufficient. “It doesn't actually say what the health para is going to do, it says…will improve her physical abilities, and monitor her health". I mean, I don't think that would be appropriate for her.“ (T 72-73) added some useful information regarding the need for a para. is with the student throughout the day to make sure student is safe, assists with any activity, and is there in case the student . (T 73)

Considering the deficiencies in the IEP above and the lack of any support presented by the DOE, I find I find that the IEP fails to provide for personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction and the IEP is not reasonably calculated to provide some meaningful benefit to the student.

The IEP does not accurately reflect the results of evaluations to identify the student's needs and does not establish annual goals related to those needs.

PLACEMENT 2013-2014

IEP, though incomplete, reflects several areas of student need. This includes a small classroom environment, class in a special school, speech and language therapy . (Ex C 4)

Evidence supports is addressing identified needs of the student reflected in the IEP and additional needs disclosed through witness testimony and documentary evidence. No contrary evidence or testimony was provided disputing any claim by regarding its appropriateness for the student. is a special education school which “individualizes each student's education to meet their needs. It assists the students in obtaining skills that they need for success in the future. The students participate in a vocational program and they also have opportunities to interact with typically-developing peers…” (T 14)

The student is in a class of 8 total students, ages 15 to 18, there are four other adults besides , student reading and math levels vary, but average between 1st and 2nd grade. (T 17) describes the student at the beginning of the 2013-14 school year wouldn't communicate with non-familiar adults, weakness in hew right upper extremities, which can affect her ability to write, and can be resistant to correction. (T 17-19)

Student class schedule includes academics, vocational activities, and related service therapies. (T 20-31, Ex E) does utilize goals contained in the IEP, noting that some goals were capable of conferring educational benefit, but not all of them. (T 43) believes the student made progress during the 2013-2014 school year. Progress is measured through pre-tests, post-tests, communicating with therapists and observations. Examples of progress include the student using the internet for functional purposes, student started coming out of her shell, she was able to communicate with on familiar staff members more appropriately, was better able to order lunch and take constructive criticism or correction, was able to identify community signs on paper and in the community, and was more descriptive. (T 31 -33)

Student demonstrated progress . Student became more independent, a little more outgoing, took more responsibility for herself, was a little more in touch with her emotions, and had overall general growth academically and socially. (T 55 -56) is appropriate for the 2013-2014 school year as it is able to individualize the program so the student could gain knowledge and skills she needs to b successful and function in society in the future. (T 33) is appropriate for the student. with teachers and related service providers, and student has opportunities for vocational programming. (T 78)

Student classroom functioning was impacted by issues that included being distracted, gives up very easily, and it time to build a rapport. (T 56-57) was an appropriate placement for the student. “I really saw her thrive this year. She really became much more were a little more in check. Again, if she didn't want to participate, she was on something didn't like but you could reason with her. …I really saw a reflects the student is assigned a , as is an evidenced need of the student. (Ex F 1)

Cards reflect student goals for areas that include writing, ELA, math, social studies, work habits, art , social development, and physical education. (Ex G, I & N)

Report cards reflect progress as testified to at hearing. For example, the student interacts appropriately with peers at appropriate times throughout the day and is working on appropriately communicating with staff members she is not very familiar with. (Ex N 2)

Report card indicates the student is working on some goals referred to tin the IEP. For example double digit computations and money skills. (Ex C 17-18 & G 2) vocational report cards regarding student worksite activities in areas such as the local supermarket, and onsite training office. (H & O)

Related service reports service delivery to the student, related goals and progress in each area. This includes counseling (Ex J),PT (Ex K), OT (Ex M) an d speech (Ex L).

Witnesses detailed an understanding of the student’s needs and the appropriateness of for the student for the 2013-2014 school year.

I find the educational is especially designed to meet the unique needs of the student and is supported by such services as are necessary to permit the child to benefit from instruction.

For the 2013-2014 school an educational program which met the student's special education needs and such placement is reasonably calculated to enable the child to receive educational benefits.

TRANSPORTATION

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a caseby-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

Parent seeks special education transportation for the 2013-2014 school year.

IEP does reflect a need for special education transportation services. (Ex C 19)

No claim is made for any failure by the DOE to provide transportation to the student for the 2013-2014 school year. No claim is made for any funds related to transportation.

I find the student is entitled to transportation services insofar as they have been provided for the 2013-2014 school year.

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting, visited the recommended site, communicated her concerns to the DOE and in no way frustrated any attempt by the DOE to deliver a FAPE. participated in the IEP meeting of 06/19/2013. (T 66) a site recommendation and visited the site. (T 75-76)

If the DOE offered an appropriate public school, , might have decided to send her child to the public school. (T 79) agreed to pay tuition for the 2013-2014 school year in the amount of $70,000.00, which did not include related services. (T 78)

JH clarified the total tuition . “The tuition was $71,000 and then the related services and the paraprofessional are broken out, and at this point P-2 says that the parent paid $9,500 to the school, and the balance due is $98,900.” (T 80)

Parent had a letter, of June 14, 2013, submitted to the CSE providing a ten day notice of intent to place the student unilaterally and seek funding. (Ex D 1)

tuition contract indicates a tuition, for a ten month school year, of $71,000.00, which includes a student activity fee and a registration fee. Related services are notated to be charged separately. (Ex Q 2)

Affidavit of payments reflects related service charges totaling $37,400.00. (Ex P1)

Total tuition of 2013-2014 school is $108,400.00. (Ex P & Q)

Parent has paid $9,500.00 towards the tuition leaving a balance of $98,900.00. (Ex P & R)

Parent seeks direct funding, or prospective payment, of tuition for the DOE. Parent has the burden of establishing their inability to pay for the student's private school tuition (see Application of a Student with a Disability, Appeal No. 12-004; Application of the Dep't of Educ., Appeal No. 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041). The parent provides a copy of two pages of their 2013 tax return, indicating 2013 income of $177,819. No evidence is provided as to any 2014 income and resources available. No information is provided regarding any assets or available funds available to the parent. Absent any evidence provided to further explain the parent’s financial capabilities and resources I decline to find that the parent has sufficiently established entitlement to direct funding of the student's tuition costs for the 2013-2014 school year (see Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-30 [S.D.N.Y. 2011]; Application of the Dep't of Educ., Appeal No. 12-070; Application of a Student with a Disability, Appeal No. 12-004.

I find the parent is entitled to full tuition reimbursement, for the 2013-2014 school , in the amount of $108,400.00.

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2013-2014 school year

2. The parent shall be reimbursed for , for 2013-2014 school year tuition, and related services, up to the amount of $108,400.00.

3. DOE shall provide with any required documentation and forms necessary to facilitate payment and/or reimbursement within ten days of the date of this order.

4. DOE shall provide special education transportation to the student for the 2013-2014 school year.

5. This decision is subject to appeal and review by the State Review Officer.

Dated: August 6, 2014

Daniel Ajello, Esq gc

DANIEL AJELLO, ESQ.

Impartial Hearing Officer

DA:gc

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

ENTERED 07/02/2014

A Impartial Hearing Request dtd 5/23/14, four pages B 13-14 Program Description, seven pages

C IEP dtd 6/19/13, 23 pages. D 10-day Notice dtd 6/14/13, 2 pages E 13-14 Class Schedule, one page F 13-14 Class Profile, one page G 13-14 2nd Semester Report Card, four pages

H Vocational rpt card dtd 3/3/14, three pages I 3rd Trimester Rpt Card, five pages

J Progress Rpt, dtd 5/15/14, one page

K Progress Rpt dtd 5/5/14, 2 pages

L Progress Rpt Dtd 3/26/14, two pages

M dtd 2/2014, two pages. N 13-14 1st Trimester Rpt card, 3 pages

O Vocational Rpt Card dtd 11/11/13, three pages

P Affidavit of Payments Dtd 6/25/14, two pages

Q Enrollment Contract dtd 9/3/13, two pages

R Parent Proofs of Payment, 10 pages S 2013 Parent Tax Return, two pages

DEPARTMENT OF EDUCATION

NONE

IMPARTIAL HEARING OFFICER

ENTERED 07/02/2014

I Email to Parties Notifying them of IHO Appointment dtd 5/29/14, 3 pages