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: October 22, 2014

November 21, 2014

Actual Record Closed Date: December 5, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 22, 2014

MS., Attorney (Via Telephone) — Student

MR., District Rep. (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21,

2014

Attorney — Student

Parents

(Via Telephone) — Student

District Representative — DOE

INTRODUCTION

On 09/17/2014, 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.

Pre hearing conference was conducted on 10/22/2014 and hearing dates were set.

On 011/21/2014 parent made a motion to extend the compliance date by 30 days to allow receipt of the transcript. Motion was granted and compliance date was extended

to 12/19/2014. (T 72, IHO EX II)

This matter was instituted by the impartial hearing request dated 09/09/2014 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 2014-2015 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2014-2015 school year. (Ex A 1)

Relief sought includes funding or reimbursement for unilateral placement at the ( ). (Ex A 3)

Student’s last IEP, of 06/26/2012, included a classification of , and recommended a setting with . (Ex B1 & B 6)

THE PARENT’S POSITION

( ), attorney, presented the parent’s position. Student “is old and in the grade for the 2014-15 school year. He has been diagnosed with a , , and . As per the concession of the Department of Education, they did not offer a FAPE for the 2014-15 school year. And it is the Parents' position that the evidence in this case will demonstrate that their unilateral placement at the is an appropriate placement and they are entitled to tuition reimbursement. In addition, the Parents contend that there are no equitable considerations which would warrant a denial or reduction of the tuition reimbursement.” (T 15)

PARENT WITNESS

( ) reviewed his educational and professional background and testified as employee of . (T 17-18)

“I am the CSE liaison and essentially there are two parts to that role. I am a person who will interact with parents and give them guidance in interaction with the CSE, either in their district of location or district of residence. And then I also work with teachers and then together we will present students by telephone at CSE meetings.” (T 18-19)

School mission is described as: “

.” (T 19-20)

Student population: “

.” (T 21)

School student staff ratio is approximately students to teacher. Staff includes assistant teachers, a psychologist, and other related personal. (T 21)

Witness reviewed instructional methodology used in at , including . (T 23-26)

Instruction is differentiated for students, progress is monitored, teachers observe students so as to provide extra support, differentiation is possible based on student grouping as well as interaction with teachers in class. (T 26-27)

Student is in grade at is , , and . Significant difficulty with , , , and . Has some difficulty with . “And as a result he's not . He needs and support. He gets a lot of that from us because he's a student .” (T 28-29)

There are students in homeroom. (T 29)

Student class has teachers. (T 31)

Student is making progress and “needs instruction in . He still is not in his . He will . He is not yet consistently or . In he is . , . But because he needs to and is difficult for him, …(student) is learning strategies to be more successful as in terms of ”. Student needs also include , , and . (T 32-33)

In the student has , which is helping with and . Support includes , , his is monitored to improve and (T 33-35), (T 38), and (T 39).

In the student is taught specific skills in a . Support includes “… … … the strategies that we use include , … … …” (T 36-37)

Student has benefited from the supports. Student has made progress in and (T 37-38), he is better able to , , he has learned to , and . (T 42)

Student class has students. He is working level content at a pace and with . (T 43)

Student has , , is not consistently and has difficulty with . (T 44-45) Support includes a and strategies to help with problems, and and . (T 45-46) Student has also been taught the “ ” (T 46)

In progress is noted in that the student is more in and his work is . (T 47-48)

assesses students through daily observations, samples, tests and quizzes, and standardized measures. (T 51-52)

When asked about student the witness states the student is , , and . (T 53)

Witness believes is meeting the student’s special education needs. “…he needs the kind of instruction that he is getting in the program if he's going to be successful in a public school setting or in another school environment when he's ready to leave. He really still needs to acquire those skills in and , and still needs to improve his and his . And it's only with instruction that he's going to be able to , , and that he's going to need to be an .” (T 55)

PARENT WITNESS

( ), the student’s father, states the student is currently years of age, in grade at , issues include issues, in was not able to , and over time and problems(T 58-60).

Student started in 2012. (T 60)

notes improvement in his son since attending including the area of , , , and . (T 61-63)

testified as to his child’s experience at : “…

.” (T 63-64)

Parent attended a recent parent teacher conference where teachers report the student is making progress. “they do see increased in his , clearly in his ability to …this is a change particularly in , where he has become . In other words, . And that's a change. I think that's representative of an increased level of .” (T 64-65)

identified letter of 05/20/2014, to which he has not received a response. (T 67, Ex D)

identified letter of 08/18/2014, which incorrectly had referred to a CSE meeting. (T 67, Ex C)

No CSE meeting was held for the student for the 2014-2015 school year. (T 67)

make monthly payments for the tuition. (T 67)

DEPARTMENT OF EDUCATION POSITION

( ) District Representative, presented the DOE position at hearing of 11/21/2014.

DOE did not present a case or otherwise defend any IEP or placement for the student for the 2014-2015 school year. “he Department is waiving opening statements and is not presenting witnesses. It's not presenting a case. The case can proceed to Prong 2.” (T 14)

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 36465). 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

DOE did not offer any witness or evidence to defend an IEP or placement for the student for the 2014-2015 school year.

I find that the DOE failed to offer the student an IEP or FAPE for the 2014-2015 school year.

2014-2015 PLACEMENT

DOE offered no evidence of any kind opposing the parent’s position regarding the appropriateness of for the student, for the 2014-2015 school year.

Under the circumstances of this case, where the district presented no case, and has been found to have failed to offer the student a FAPE for the school year in question and elected to not submit any evaluative information or assessments of the student as evidence of the district's view of the student's special education needs into the hearing record, the district has effectively abandoned any opportunity to assert at impartial hearing its position regarding the student's special education needs and the extent to which the parent's unilateral placement either addressed or failed to address those needs.

Evidence in the hearing record submitted by the parent in this case was sufficient to identify the student's unique individual needs and to satisfy the parent's burden to establish the appropriateness of the student's unilateral placement at .

Witness detailed the schools mission regarding special needs children in general, (T 19-21) and methodologies employed (T 23-26).

At instruction is differentiated for students, progress is monitored, teachers observe students so as to provide extra support, differentiation is possible base don student grouping as well as interaction with teachers in class. (T 26-27)

Witness describes student special education needs throughout testimony. (T 2829, T 44-46)

Supports include learning strategies to be more successful as in terms of , , , and . (T 32-33) Other support is detailed throughout testimony. (T 33-39)

Evidence indicates student progress attributable to support and instruction at . One such area includes and (T 37-38), he is better able to , , , and . (T 42)

Uncontested witness testimony includes that is meeting the student’s special education needs. “…he needs the kind of instruction that he is getting in the program if he's going to be successful in a public school setting or in another school environment when he's ready to leave. He really still needs to acquire those skills in and , and still needs to improve his and his . And it's only with instruction that he's going to be able to , , and that he's going to need to be .” (T 55)

Parent testimony supported placement by providing examples of student improvement (T 61-65) and (T 63-64).

I find the educational instruction at 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 2014-2015 school year I find offered 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.

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent in no way frustrated any DOE effort to offer a FAPE.

Parent corresponded with the DOE on several occasions to press the DOE to hold a CSE meeting and to provide notice of unilateral placement of his child. (Ex C & D)

enrollment contract reflects a tuition of as indicated by parent monthly payments. (T 67, Ex E 2)

Parent has been making payments towards the tuition due. (Ex F & G)

I find the parent is entitled to tuition reimbursement up to the amount of .

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 2014-2015 school year.

2. The parent shall be reimbursed for any payment made to for 20142015 school year tuition.

3. Total amount of tuition to be reimbursed .

4. DOE shall provide parent and with any required documentation and forms necessary to facilitate reimbursement within ten days of the date of this order.

5. This decision is subject to appeal and review by the State Review Officer. Dated: December 9, 2014

, ESQ.

Impartial Hearing Officer

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 Hearing Request, 9/9/14, 6 pages B IEP for the '12-'13 school year, 6/26/12, 11 pages C Parent Letter to the CSE with proof of delivery, 8/18/14, 3 pages D Parent Letter to the CSE with proof of delivery, 5/20/14, 4 pages E Enrollment Contract for the '14-'15 school year, 2/21/14, 2 pages F Affidavit of Tuition for the for the '14-'15 school year, 10/1/14, 1 page G Proof of Payment for the '14-'15 school year for , 10 pages H Class Schedule for the '14-'15 school year, 1 page I First Quarter Report Card for '14-'15 school year, 1 page J '13-'14 End of Year Progress Report, 17 pages K Standardized Testing Scores for the for the '13-'14 school year, 2 pages L Psycho-Educational Evaluation, October 17th & October 13, 2014, 18 pages M Psycho-Educational Evaluation, April-May 2011, 18 pages

DEPARTMENT OF EDUCATION

NONE

IMPARTIAL HEARING OFFICER

I Notice of Appearance, 9/18/14, 1 page II Grant of Request for extension of timelines, 11/21/2014, 3 pages