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: November 3, 2014

November 19, 2014

Actual Record Closed Date: November 28, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 3, 2014

Attorney — Student

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 19, 2014

Attorney — Student

Program Director (Via Telephone) — Student

Parents

CSE District Representative — DOE

INTRODUCTION

On 09/30/2014, 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.

This matter was instituted by the impartial hearing request dated 009/17/2014 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 4)

BACKGROUND

Student information includes that gleaned from IEP of 03/25/2013. Student is currently years old, with a classification of , (Ex 1-1) recommended services include a for periods weekly,

- ( ) services for minute sessions

weekly, , time weekly for a minute session, and , time weekly for a minute session and for session weekly (Ex 1-9) and reflects levels of for and for . (Ex 1-13)

IEP notes the student uses a , needs to be such as are necessary to , in (Ex 1-2), concerns include , and (Ex 1-3), student and needs include ,

, , , and

. (Ex 1-4 & 1-5)

THE PARENT’S POSITION

( ) presented the parent’s position.

outlined the parent position in her closing statement. DOE failed to present any testimony to defend the its IEP nor related placement recommendation

(T 92), goals are not consistent with teacher report, parent concerns were not addressed (T 93), placement at includes appropriately tailored services of instruction, services, , and progress is reported.

(T 93-94)

PARENT WITNESS

( ) reviewed her educational and professional background and testified as program director of the Program. “I coordinate with my

Curriculum Director the makeup of the classes, the hiring of the staff. I kind of supervise and troubleshoot all kinds of day to-day issues. I deal with parents. I'm really part of a hierarchy of supervision of the staff and the students to make sure that there's collaboration between teachers and support staff, to make sure the children are getting what they need.“ (T 31-34)

has students ages to with a variety of deficits that include . (T 34)

Student learn in , need approaches, individualized programs to meet their needs, , and support. (T 34-35)

Classes have to children and adults. (T 35)

Classes are grouped by similar academic and -emotional issues. (T 35)

Witness is familiar with the student who has been attending since 2010.

(T 36)

Witness describes student as “ ,

… . When she's ,

,… and ,

, … … , especially

when …

, and …

. She , but she has a hard time

; and if there's …the child

, she has a hard time . So, very often,

. She needs program

and , , and also

.” (T 37-38)

Student is currently in a class of girls, ages to , and adult staff. (T 38-39 & 61)

Students in the class have and and need

instruction and approaches to learn. (T 39-40)

Student support includes group of for and instruction, and program . (T 40)

Witness reviewed student (T 41-47), (T 49-50), and needs as well as supports used in each area. (T 41-44)

Current student goals are reflected in education plan as drafted in October this year. (T 45, Ex F)

Progress is noted in student and “

…” (T 46)

Student needs are supported with and needs help in

, , , , and

. (T 47-48)

goals are reflected in education plan. (T 48, Ex F)

Student progress in is noted as “

”(T 49)

Progress in is noted in that student is “

” (T 50)

Student has difficulties relating to and

. (T 51-52)

skills are addressed each day. “…we have skills instruction every day…targeting different skills…” (T 52)

Student difficulties are described as “

” (T 52-53)

Class has a plan which is a system. For the student the plan at intervals. (T 53-54)

Student receives related services of by New York State licensed providers. (T 54)

Student receives support during . (T 55)

instruction includes and studies. (T 58)

Witness believes student is making progress and is appropriate for the student. (T 59)

PARENT WITNESS

( ) student’s mother, provided testimony. (T 71)

describes student difficulties as including , and . (T 71)

reviewed her child’s educational history from Committee on Pre School Special Education (CPSE) where the student received

( ) services. (T 72)

Parent participated in the 03/25/2014 IEP meeting. (T 72)

Student academics were discussed at the meeting and parent shared her concerns with the team. (T 73)

Parent had concerns with the recommendation believing her child required more support. (T 73)

Parent received a placement letter in July for the upcoming school year and visited the placement. (T 73-74)

Parent testified she felt the recommendation was not appropriate and included her concerns in correspondences of 08/13/2014 and 09/15/2014. (T 74-75, Ex D & E)

Parent would have considered a more appropriate placement if offered. (T 76)

Parent sees progress at . Student is but and is . (T 77)

Parent attributes progress to the environment with .

(T 78)

Parent seeks direct funding of tuition at . (T 76)

Parent financial information includes an includes of about , and tuition at of . (T 76)

Parent signed a tuition contract for which she is liable. (T 77, Ex I)

If parent does not prevail at hearing she would take out a loan and start paying slowly. (T 80)

Tax return reflects all parent income. (T 82)

Rent expense is monthly, balance paid by (T 82), family a month and for

(T84).

Bills include utilities of about a month for electricity. (T 86)

Parent has other children for whom tuition is paid. When , of about , comes in some money is put towards tuition for . No portion of the current tuition for the student in question has been paid. (T 86-88)

Parent expects a similar this year and some of it may go towards the student’s tuition. (T 88)

DEPARTMENT OF EDUCATION POSITION

( ) appeared on 11/03/2014, to represent the DOE position.

appeared and presented that he understood the date to be for a pendency hearing only. (T 4)

IHO advised that it was indeed the day for the DOE to present its case and referred to IHO notice previously sent to the parties. lamented it was impossible for the DOE to obtain witnesses for a hearing scheduled at and again was referred to IHO notice. (T 4-6, IHO Ex I)

contends the DOE was denied its right to present a case. (T 11-12)

IHO set forth that the DOE does not necessarily have to present a case at all.

(T 12-14 & 21-24)

An impartial hearing officer must provide all parties with an opportunity to present evidence and testimony, including the opportunity to confront and cross-examine witnesses (34 C.F.R. § 300.512[a][2]; 8 NYCRR 200.5[j][3][xii]). In the interest of narrowing the issues to be litigated and avoiding unnecessary delay and expense to the parties, nothing preludes an impartial hearing officer from conducting a preliminary conference to clarify the presence of undisputed material facts or the issues to be decided (8 NYCRR 200.5[j][3][xi]; see J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 68 [2d Cir. 2000]), or wherever practicable, "enter into the record a stipulation of facts and/or joint exhibits agreed to by the parties" (8 NYCRR 200.5[j][3][xii][b] [emphasis added]). While an impartial hearing officer has the discretion to limit or exclude evidence or testimony of witnesses that he or she deems to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c], [d], [e]), it is also an impartial hearing officer's responsibility to ensure that there is an adequate record upon which to permit meaningful review (Application of a Child with a Disability, Appeal No. 04-024; Application of a Child with a Disability, Appeal No. 03-003; Application of a Child with a Disability, Appeal No. 00-039; Application of a Child with a Disability, Appeal No. 00-021;

Application of the Bd. of Educ., Appeal No. 97-92). State regulations provide that an impartial hearing officer "may limit examination of a witness by either party whose testimony the impartial hearing officer determines to be irrelevant, immaterial or unduly repetitious" (8 NYCRR 200.5[j][3][xii][d]) and contain provisions stating that "[e]ach party shall have up to one day to present its case unless the impartial hearing officer determines that additional time is necessary for a full, fair disclosure of the facts required to arrive at a decision" (8 NYCRR 200.5[j][3][xiii]).

DOE was notified and appeared at the scheduled hearing date and given the opportunity to present its case. DOE, for whatever reason, did not avail itself of the opportunity presented.

( ) represented the DOE at the second, and final day of hearing. contends the DOE documentary evidence supports that a FAPE was offered for the 2014-2015 school year (T 95), does not properly assess progress of the student (T 100-101) and parent signed the tuition contract prior to visiting the school (T 101)

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

DOE failed to present a case, or otherwise avail itself of the opportunity top present a case defending its IEP and placement.

DOE did submit documentary evidence regarding the student which included various reports and information which was reflected in the IEP. No information was provided as to whether or not the IEP and placement were indeed appropriate for the student.

I find that the DOE failed to establish the IEP and placement for the 2014-2015 school year as appropriate for the student and therefore failed to offer the student a FAPE for the 2014-2015 school year.

PLACEMENT

Documents and witnesses establish as an appropriate placement for the student.

confirmed the student needs to learn in a group with approaches, and individualized program with a lot of , and support. (T 34-35)

was able to identify student areas of weakness and manner in which the program is tailored to meet those needs. Such testimony included “

” (T 37-38)

Student is currently in a of girls, ages to , and adult staff. (T 38-39 & 61)

Student support includes a group of for and instruction, and program to keep student (T 40), student goals are reflected in education plan as drafted in October this year (T

45, Ex F), needs are supported with and needs help in

, , , , and

. (T 47-48)

Student is noted to be making progress in areas (T 46, 49-50, 59 & 77)

Student has skills are addressed each day “

” (T 52)

Student difficulties are described and addressed with a class plan modified for the student, which includes being at . (T 52-54)

Student receives related services of and by New York State licensed providers. (T 54)

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 cooperated and appeared at the requested meeting (T 72), communicated her concerns (T 73-75, Ex D & E) to the DOE and visited the recommended placement. (T 73-74)

Parent would have considered a more appropriate placement if offered. (T 76)

Parent seeks direct funding of tuition at . (T 76)

Parent financial situation, though offered in a somewhat disjointed fashion, includes some clear areas of note.

Parent resources and income include about and various benefits such as , (Ex K, T 82 & 84), parent signed a tuition contract for which she is liable. (T 77, Ex I)

Parent states if she does not prevail at hearing she would take out a loan and start paying slowly. (T 80) Her ability to actually obtain a loan is not presented.

Parent has for whom tuition is paid, at times with money obtained from each year. No portion of the current tuition for the student in question has been paid. (T 86-88)

Tuition and related services total for the student attendance at for the 2014-2015 school year. (EX I & J)

School week includes ( ). instruction

includes and studies which amount to , or about hours weekly, or of the school week. (T 58, Ex H)

Dollar allocation of instruction amounts to leaving a tuition to be paid of for the 2014-2015 school year.

Parent letters of 08/13/2012 & 09/15/2014 advised the DOE of her concerns with the IEP and site visit and intent to enroll the student in a private placement at public expense. Parent did not receive any response. (Ex D & E)

Evidence shows the parent is unable to directly pay the student tuition and await reimbursement. I find that the parent cannot afford to pay and receive reimbursement of the tuition and is entitled to prospective payment of any tuition due

.

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 an income of about $27,500.00.

(Ex K) Testimony regarding income, resources and expenses reflect an inability to pay the tuition due directly and await reimbursement. Testimony and documentary evidence support a finding that the parent has sufficiently established entitlement to direct funding of the student's tuition costs for the 2014-2015 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.

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 DOE shall pay directly the tuition, and related services cost, due or to become due for the 2014-2015 school year.

3. Total amount of tuition to be directly funded is .

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

5. This decision is subject to appeal and review by the State Review Officer. Dated: December 2, 2014

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 RECORD

PARENT

A Due Process Complaint, dated 9/17/14 (4 pages)

B Findings of Fact and Decision, dated 7/19/13 (16 pages)

C Due Process Response, dated 10/31/2014 3 (pages)

D Parent Letter to CSE, 8/13/14, 3 pgs

E Parent Letter to CSE, 9/15/14, 3 pgs

F education plan, 10/14 10 pages

G Attendance schedule, 10/30/14, 1 pg

H 14-15 Daily Schedule, 2 pages

I Contract, 9/2/14, 3 pages

J Tuition Affidavit of Payment 10/30/14, 1 page

K 2013 Tax Return, 2 pages

DEPARTMENT OF EDUCATION

1 IEP, dated 3/25/14 (16 pages)

2 Prior Written Notice, dated 7/10/14 (5 pages)

3 Psycho-Educational Report, dated 12/18/13 (4 pages)

4 CSE Minutes, dated 3/25/14 (5 pages)

5 Updated, dated 2/2014 (1 page)

6 Teacher Progress Report, dated 2/2014 (4 pages)

7 Report, dated 2/2014 (1 page)

IMPARTIAL HEARING OFFICER

I Notice of Appointment, dated 10/21/14 (3 pages)