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Special Education Law
DECISIONParent PrevailedSEL No. 2014-ih-266

New York City Department of Education, Impartial Hearing Decision

December 4, 2014·Hearing Requested by: Parent

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 26, 2013

January 30, 2014

February 25, 2014

Actual Record Closed Date: November 20, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 26,

2013

ESQ., Attorney — Student

ESQ., Attorney — Student

ESQ., Attorney — Student

ESQ., Attorney — Student

Parents

Interpreter — Student

ESQ., Attorney — DOE

ESQ., Attorney — DOE

School Psychologist (via telephone) — DOE

Interpreter — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 30, 2014

ESQ., Attorney — Student

ESQ., Attorney — Student

ESQ., Attorney — Student

Parents

Interpreter — Student

ESQ., Attorney — DOE

Translator — DOE

Interpreter — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 25,

2014

ESQ., Attorney — Student

ESQ., Attorney — Student

ESQ., Attorney — Student

Parents

Interpreter — Student

Assistant Head of (via telephone) — Student

(via telephone) — Student

Consulting Teacher (via telephone) — Student

ESQ., Attorney — DOE

Translator — DOE

I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parent in a due process complaint notice dated August 7, 2013. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parents, and/or directly pay for, costs associated with the student’s unilateral private placement at the (“ ”) for the 2012/13 school year (Ex. SD-1).[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).

II. PROCEDURAL HISTORY

In a due process response dated August 22, 2013, the DOE denied each and every allegation contained in the parent’s due process complaint (Ex. SD-2). See 8 NYCRR §§ 200.5(i)(4), (5). The DOE appointed me to hear this matter on September 30, 2013, following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). A prehearing conference with the parties was held on November 25, 2013 to clarify the issues, set dates for the hearing, and address subpoena objections (R. 3-25; Ex. IHO-I). See 8 NYCRR § 200.5(j)(3)(xi). Hearings in this matter were thereafter held on: November 26, 2013; January 20, 2014; and February 25, 2014.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

At the time of the August 7, 2013 due process complaint, the student was years old and had been diagnosed with both and (R. 236, 238; Exs. SD-1 at 2, SD-6, P-A at 1, 6, P-AA at 3). For the 2012/13 school year, the student attended the in (Exs. P-Q, P-R, P-U, P-V, P-W, P-Y, P-Z). The Commissioner of Education has not approved the as a nonpublic school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's current eligibility for special education and related services as a student with an is not in dispute in this hearing (Exs. SD-1, SD-2 at 1, SD-3 at 1, SD-4 at 6).3 See 34 C.F.R. § 300.8(c)(7); 8 NYCRR § 200.1(zz)(7).

During the student’s years, his parents noticed that he was and . The student received for . The student has received special education services throughout his formal schooling. When he entered public school (during the 2001/02 school year), he was classified with and was placed in setting (Ex. SD-5 at 1). The student during the 2002/03 school year at (Ex. P-AA at 1).

On October 23, 2006, when the student was years old, he was tested at the (“ ”) and achieved a (“ ") Full Scale IQ score of , within the range. During the same assessment, the was administered resulting in a composite standard score of (Ex. P-A at 2).

During the 2008/09 school year, when the student was years old, he received , , and services and was placed in a setting at (Ex. P-A at 1).

IHO-X, IHO-XI, IHO-XII, IHO-XIII, IHO-XIV, IHO-XV, IHO-XVI, IHO-XVII). See 34 C.F.R. §

300.515(c); 8 NYCRR § 200.5(j)(5). 3

. 8 NYCRR § 200.1(zz) .

On June 9, 2009, the student participated in testing by to assess his then-current levels of and . On an administration of the , the student achieved a full scale IQ score of , within the range and percentile. On a subtest of the (“ "), measuring and skills (but not ), the student attained a standard score of at the grade level and at the percentile. The student’s skills were categorized as “ ,” with a composite score of , below the percentile (Ex. P-A at 6).

On July 12, 2010, when the student was years old, he participated in a psychoeducational evaluation conducted by the DOE. The student’s was measured using the . The student’s (FSIQ = ) was within the range when compared to his peers. Similarly, the student’s (SS = ), (SS = ), ( ) (SS = ), and (SS = ) all scored in the range (Ex. SD-5 at 2, 6).

The was used to measure the student’s achievement levels in , and . In , the student was able to . In , . He did not demonstrate skills in , , or

(Ex. SD-5 at 3).

In , the student knew how to and . He did not demonstrate skills in or . On , he knew how to , but he did not know , , or (Ex. SD-5 at 3).

In , the student knew how to . He could also . and assessments were attempted, but terminated, because the student was unable to (Ex. SD-5 at 3-4). Findings of the suggested that the student was on the range of (composite score = ).

On April 19, 2012, the CSE invited the parent to attend a May 1, 2012 annual review meeting (Ex. P-C). On April 23, 2012, the parent signed an enrollment contract with the for the 2012/13 school year (Ex. P-U).

At a meeting held on May 1, 2012, the CSE convened to develop an IEP for the student for the 2012/13 school year. The CSE recommended that the student receive the majority of his instruction in a class in a ( ) school on a month basis. The CSE also recommended that the student receive related services of: ; , times per week for minutes per session; , times per week for minutes per session; , times per week for minutes per session; and , times per week for minutes per session (Ex. SD-3 at 12).

On June 4, 2012, the parent signed another contract with the for the student’s enrollment in its for the summer of 2012 (Ex. P-V).

In a Final Notice of Recommendation dated June 21, 2012 the DOE advised the parent that the student’s recommended program would be implemented at

(Ex. SD-6).

In letters dated June 18, 2012, June 28, 2012 and August 21, 2012, counsel for the student and the parent advised the CSE that the parent was rejecting its proposed program for the student and would unilaterally place the student at the for the 2012/13 school year at public expense (Exs. P-I, P-L, P-N). This hearing ensued.

IV. POSITIONS OF THE PARTIES

A. The DOE

The parent’s claim for tuition reimbursement and/or direct payment for the student’s unilateral placement at the for the 2012/13 school year should be denied. The CSE’s proposed program offered the student a free appropriate public education in the least restrictive environment. The was an inappropriate and overly restrictive program for the student. The relevant equities also mitigate against a reimbursement/direct payment award (R. 61-65, 74-76; Ex. IHO-II).

B. The Parent

The DOE should be ordered to reimburse the parent, and/or directly pay, for the student’s unilateral placement at the for the 2012/13 school year. The DOE failed to develop an appropriate educational program for the student. The appropriately addressed the student’s unique educational needs. The relevant equities also support an award of tuition reimbursement, and/or direct public funding, of the student’s tuition to the (Exs. IHO-III, SD-1).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that studentswith disabilities have available to them a free appropriate public education (“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 (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176,

206-07 (1982).[4]

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. See 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 has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see 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. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 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. See 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." See 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." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See 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.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also 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" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also 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. Board 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 C.F.R. § 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), 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 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).

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. See N.Y. Educ. Law § 4404(1)(c); see also 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).

B. Adequacy of Evaluations

Turning to the first prong of the Burlington/Carter test, I must determine whether the DOE complied with the procedural protections of the IDEA. See Cerra, 427 F.3d at 192. The parent alleges that the CSE failed to rely on adequate evaluative information when crafting its IEP for the student for the 2012/13 school year (Exs. IHO-III at 7-13, SD-1). An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).

A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).

I find that the CSE had adequate evaluative information of the student’s functional, developmental and academic needs upon which to premise its program for the student for the 2012/13 school year (Ex. SD-3). See Application of a Student with a Disability, Appeal No. 12-017 (SRO February 22, 2012). At the May 1, 2012 meeting, the CSE possessed a July 12, 2010 psychoeducational evaluation and a March 2012 narrative report from the (Exs. SD-5, P-P). The July 12, 2010 psychoeducational evaluation contained information on the student’s then-current , , , and (Ex. SD-5). The student’s mother attended the May 1, 2012 CSE meeting as did Ms. and Ms. from the . Both Ms. and Ms. , who provided the student with instruction during the 2011/12 school year, participated in the meeting’s discussion and gave input regarding the student’s then-current functioning (Exs. SD-3 at 17-18, SD-4, P-P).

Alternatively, while the parent asserts there was insufficient evaluation by the CSE of the impact of the student’s diagnosis on his then-current functioning, the hearing record reflects that the CSE possessed several evaluations of the student’s dual diagnosis of and , both of which impacted on his in the classroom (Exs. IHO-III at 7-12, SD-1, SD-3, P-A, P-P, P-AA). While the parent also asserts that the CSE had insufficient information of the student’s related services needs (Exs. IHO-III at 12-13, SD-1, SD-3), the hearing record reflects that the May 2012 CSE considered a March 2012 Progress Report which contained detailed information on the student’s then-current functioning in the areas of , , and (Exs. SD-3, SD-4, P-P).

C. Meaningful Participation/Adequate Translation Services and Documents

The parent asserts that the DOE significantly interfered with her ability to participate in the decision-making process because it provided her with extremely poor translation services at the May 2012 CSE meeting and failed to provide her with a copy of the student’s IEP and other records in her native language (Ex. SD-1 at 4).

The IDEA sets forth procedural safeguards that include providing parents an opportunity"to participate in meetings with respect to the identification, evaluation, and educational placement of the child." See 20 U.S.C. § 1415(b)(1). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate. See 34 C.F.R. § 300.322; 8 NYCRR § 200.5(d). In addition, school districts "must take whatever action is necessary to ensure that the parent understands the proceedings of the [CSE] meeting, including arranging for an interpreter for parents [who are hearing impaired] or whose native language is other than English." 34 C.F.R. § 300.322(e); 8 NYCRR § 200.5(d)(5). Federal and State regulations also require that school districts provide parents with certain educational documents in their native language, ensure that consent and procedural notices are provided in the parents' native language, and provide a translator at all times during the impartial hearing process. See, e.g., 34 C.F.R. §§ 300.9(a); 300.503(c), 300.504(d); 8 NYCRR §§ 200.1(l)(1), 200.4(a)(9)(ii), (b)(6)(xii), (g)(2)(ii), 200.5(a)(4), (f)(2), (j)(3)(vi).

The evidence entered into the hearing record reflects that the DOE provided the parent with prior written notice of the May 2012 CSE meeting in her native language and provided an interpreter in the parent’s native language at the May 2012 CSE meeting (R. 83, 177-178; Ex. P-C). There was no evidence entered into the hearing record that the DOE provided the parent with the May 1, 2012 IEP, or any other educational record relevant to this proceeding, in her native language, and indeed, the DOE has taken the position that it was not required to do so (Ex. IHO-II at 17).

While I find that the DOE erred in failing to provide the parent with the May 1, 2012 IEP in her native language, that error here did not significantly impede the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii). Given the presence in the hearing record of six (6) separate letters from the parent and/or her counsel to the CSE, detailing the parent’s objections to the CSE’s evaluation of the student and its recommended program and placement for the student, I find that the parent was sufficiently aware of the CSE’s recommendations in order to accept or reject its proposed program for the student (Exs. P-G, P-H, P-I, P-L, PM, P-N).

D. Substantive Appropriateness of Proposed Program

As noted earlier, the IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 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.” See Rowley, 458 U.S. at 203. 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), quoting Rowley, 458 U.S. at 192.

The evidence entered into the hearing record demonstrates that the May 2012 CSE’s recommendation for a class for the student was not appropriate and, on that basis, the DOE denied the student a FAPE for the 2012/13 school year (R. 248-249, 251252, 296-298, 340; Ex. SD-4 at 6-7). See Application of the New York City Dep’t of Educ., Appeal No. 13-178 at 11-12 (SRO Nov. 29, 2013) (awarding tuition reimbursement for unilateral placement of student at following denial of FAPE).

Initially, the hearing record provides little meaningful information regarding the May 2012 CSE's basis for recommending a class for the student. At the hearing, the DOE called only one witness—Ms. —to testify to the program offered by the DOE to the student for the 2012/13 school year. Ms. participated in the May 2012 CSE meeting as “the school psychologist and a District rep[resentative]” (R. 84). Ms.

’s familiarity with the student was entirely administrative—at the time of the IEP meeting, Ms. had never met or otherwise interacted with the student, had never observed him in class, and had not reviewed a classroom observation of the student (R. 91, 125-127). According to Ms. , the CSE relied on the March 2012 progress report, as well as discussion with the participants and the parent to develop the student's IEP (R. 83, 87-88, 90-92, 153-154; Exs. SD-3, SD-4). Following the discussion of the student's skills, needs, and goals, the CSE recommended a month class placement in a ( ) school. Related service recommendations included: sessions per week; sessions per week; sessions per week; and sessions per week. The IEP indicated that all related sessions were to be minutes in length and provided . While the May 1, 2012 IEP indicates that the CSE considered and rejected a class in a school for the student, there is no indication that the CSE considered other class sizes on the continuum (R. 99-100, 149-150; Ex. SD-3 at 12, 16-17, SD-4).

State regulations contemplate a class for those students whose needs interfere with the instructional process, an class for students whose management needs are determined to be , and a for student whose needs are determined to be . See 8 NYCRR §§ 200.6(h)(4)(i)-(ii). State regulations define management needs as "the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction." 8 NYCRR § 200.1(ww)(3)(i)(d).

The May 1, 2012 IEP indicated that the student's needs consisted of the following: ; ; ; ; ; ; ;

; ; ; ; ; ; ; ; , such as , , , , and (Ex. SD-3 at 2). Moreover, many of the strategies listed in the student's IEP required some level of direct implementation or assistance by classroom staff. Thus, based on the number and type of the student's needs in the particular circumstances of this case, it is not reasonable, based on the evidence in the hearing record and without further explanation, to conclude that a teacher and could adequately provide instruction and support to the class while also attending to the various needs of the student in this case.

Following the placement recommendation by the DOE participants, the parent and the staff expressed their disagreement with, and concern that, the recommended class setting would “not meet [the student’s] needs” and did not provide the “ environment” that he required (R. 246-249, 309-310, 349-351; Exs. SD-4 at 6-7, P-G, P-H). According to the May 2012 CSE meeting minutes, the student received academic instruction at the during the 2011/12 school year in classes with students, either or teachers, and a teacher aide/assistant (R. 118, 130-131, 348; Exs. SD-3, SD-4).

A review of the March 2012 progress report reflects that the student was making progress commensurate with his abilities (Ex. P-P). Absent evaluative information from the DOE to show otherwise, evidence of the student's progress indicates that his placement at the classrooms with related services met his needs and there is insufficient evidence in the hearing record to support a finding that the CSE’s recommendation for a less supportive environment ( class with related services) was appropriate (R. 128-129).[5]

E. Appropriateness of Proposed Placement

The parent alleges that the was an inappropriate placement for the student (Exs. IHO-III at 21, SD-1 at 4-5, SD-6, P-L).

Challenges to an assigned public school site are generally relevant to whether the district properly implemented a student’s IEP, which is speculative when the student never attended the recommended placement. Generally, the sufficiency of the district’s offered program must be determined on basis of the IEP itself. See R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 186-188 (2d Cir. 2012). The Second Circuit has explained that the parents’ “[s]peculation that the school district would not adequately adhere to the IEP is not an appropriate basis for unilateral placement.” R.E., 694 F.3d at 195; see F.L. v. New York City Dep’t of Educ., 2012 WL 4891748, at *14-*16 (S.D.N.Y. Oct. 16, 2012); Ganje v. Depew Union Free Sch. Dist., 2012 WL 5473491, at *15 (W.D.N.Y. Sept. 26, 2012) (finding the parents’ pre-implementation arguments that the district would fail to adhere to the IEP were speculative and misplaced), adopted, 2012 WL 5473485 (W.D.N.Y. Nov. 9, 2012).

While several district courts have, since R.E. was decided, continued to wrestle with the difficult issue regarding challenges to the implementation of an IEP made before the student begins attending the school and taking services under the IEP, see D.C. v. New York City Dep’t of Educ., 2013 WL 1234864, at *11-*16 (S.D.N.Y. Mar. 26, 2013) (holding that the district must establish that it can implement the student’s IEP at the assigned school at the time the parent is required to determine whether to accept the IEP or unilaterally place the student); B.R. v. New York City Dep’t of Educ., 910 F. Supp.2d 670, 677-678 (S.D.N.Y. 2012) (same); E.A.M. v. New York City Dep’t of Educ., 2012 WL 4571794, at *11 (S.D.N.Y. Sept. 29, 2012) (holding that parents may prospectively challenge the adequacy of a “placement classroom” when a child has not enrolled in the school because district are not permitted to assign a child to a public school that cannot satisfy the requirements of an IEP), the State Review Officer has found it necessary to depart from those cases, see Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 13-161 at 13 (SRO Nov. 20, 2013).

Since these prospective implementation cases were decided in the district courts, the Second Circuit has also clarified that, under factual circumstances similar to those in this case, in which the parents have rejected and unilaterally placed the student prior to IEP implementation, “[p]arents are entitled to rely on the IEP for a description of the services that will be provided to their child,” see P.K. v. New York City Dep’t of Educ., (Region 4), 2013 WL 2158587, at *4 (2d Cir. May 21, 2013), and, even more clearly that “‘[t]he appropriate inquiry is into the nature of the program actually offered in the written plan,” not a retrospective assessment of how that plan would have been executed,” K.L. v. New York City Dep’t of Educ., 2013 WL 3814669, at *6 (2d Cir. July 24, 2013) (rejecting as improper the parents’ claims related to how the proposed IEP would have been implemented). Thus, the analysis of the adequacy of an IEP in accordance with R.E. is prospective in nature, but he analysis of the IEP’s implementation is retrospective. Therefore, if it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of a FAPE due to the failure to implement the IEP. See R.E., 694 F.3d at 186-188; see also Grim, 346 F.3d 381-382 (holding that the district was not liable for a denial of a FAPE where the challenged IEP was determined to be appropriate, but the parents chose not to avail themselves of the public school program).

As explained more recently, “[t]he Second Circuit has been clear, however, that where a parent enrolls the child in a private placement before the time that the district would have been obligated to implement the IEP placement, the validity of the proposed placement is to be judged on the face of the IEP, rather than from evidence introduced later concerning how the IEP might have been, or allegedly would have been, implemented.” A.M. v. New York City Dep’t of Educ., 2013 WL 4056216, at *13 (S.D.N.Y. Aug. 9, 2013); see R.B. v. New York City Dep’t of Educ., 2013 WL 5438605, at *17 (S.D.N.Y. Sept. 27, 2013); E.F. v. New York City Dep’t of Educ., 2013 WL 4495676, at *26 (E.D.N.Y. Aug. 19, 2013); M.R. v. New York City Dep’t of Educ., 2013 WL 4834856, at *5 (S.D.N.Y. Aug. 14, 2013) (finding that the argument that the assigned school would not have been able to implement the IEP is “entirely speculative”); see also N.K. v. New York City Dep’t of Educ., 2013 WL 4436528, at *9 (S.D.N.Y. Aug. 13,

2013) (citing R.E. and rejecting challenges to placement in a specific classroom because “‘[t]he appropriate inquiry is into the nature of the program offered in the written plan.’”).

In this case, arguments that the DOE would have failed to implement the May 1, 2012 IEP at or that the student would have been among an inappropriate peer group are speculative insofar as the parent did not accept the May 1, 2012 IEP containing the recommendation of the CSE or the programs offered by the DOE and instead chose to enroll the student in the , a private school of her choosing (Exs. IHO-II at 17-19, SD-1, SD-3, SD-6, P-I, P-L, P-N). Therefore, the DOE was not required to demonstrate the proper implementation of services in conformity with the student’s IEP at .

F. Appropriateness of the

Given my finding that the DOE failed to provide the student with a FAPE during the 2012/13 school year, I turn to the appropriateness of the parent’s private program. With respect to the second criterion for an award of reimbursement, the parents must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.

In order to meet that burden, a private placement must be “proper under the Act,” see 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. “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, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See 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.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).

Based on the evidence entered into the hearing record, including the credible testimony of Ms. , Ms. , Ms. , and the student's mother, I find that the was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs (R. 231-232, 236, 238, 240, 250-251, 259-260; Exs. P-Q, P-R, P-S, P-T, P-BB at ¶ 7).

The is a private, high school that served approximately students with disabilities between the ages of during the 2012/13 school year (R. 227). During that school year, the student was enrolled in the “ ,” a program designed “for students who need . . . support within the classroom,” as well as who “need support and need ” (R. 227, 239; Ex. P-S).

The addressed the student’s needs through learning strategies that were systematically used in each of his classes (R. 245-246). Such strategies included in “ ,” which addressed and “ ,” providing “ ,” , and using “ , , and to support curriculum access” (R. 236, 245-246). The school also provided a student-toeducator ratio such that the student received instruction and related services to ensure that not only his academic needs, but also his “ needs,” were met (R. 231-232). The student’s program at also “balance[d] skills, skills, the related services in preparation for [,] and classes” (R. 240).

During the 2012/13 school year, the student’s class staffing ratio at the was (R. 247). The student’s was affected by class size (R. 248-249). The ratio provided with the instruction and “opportunities for ” that he needed (R. 246). In this class setting, “the teachers were able to ” (R. 247). In fact, the specifically determined that a class setting, such as a ratio, was not appropriate for the student because it would not have provided him with the support and that he needed (R. 249).

The hearing record reflects that the student’s educators at the were aware of his learning needs and tailored their instruction to address those needs (R. 250-251). After observing the student’s and skills, the specifically placed him with “a group of students who were working on similar levels, needed similar methodologies, . . . [and] had similar needs,” while also ensuring that he was placed with a group “that would allow him to grow” (R. 250-251). The school worked specifically with children with the student’s disabilities and was trained to work with students on the (R. 227-229). The also provided the student with appropriate , which included the use of “ ” (R. 255). Further, the supported the student’s and needs in part by assigning a to (R. 256). Regarding related services, the provided the student with appropriate levels of , , , and , each of which was integrated into the classroom setting as he required (R. 253, 256-257).

In addition to academics, the also supported the student’s needs and taught him the skills that he needed to (R. 240). In particular, the taught the student and skills, as well as provided him with training, classes, opportunities, and training (R. 239-240, 242-243, 245).

During the 2012/13 school year, the student also participated in a week program that allowed him to continue his academic instruction and to continue to practice “ ” (R. 254; Ex. P-Q). This program established for the student, which was important to ensuring that

(R. 254-255).

The student’s educators at the testified to the improvement they witnessed regarding his and skills. During the 2012/13 school year, the student’s ability to and , , and (R. 259, 306). The student also exhibited progress in his level of and ability to (Ex. P-BB at ¶¶ 8-12). For example, by the end of the 2012/13 school year, the student no longer needed ,

, or (R. 259). Academically, the student made progress in , specifically in the areas of and , which allowed him to be

(R. 261, 317-318; Ex. P-R at 3-4); and in , in both

(R. 261, Ex. P-R at 5-6).

G. Relevant Equities

The final criterion for a reimbursement award is that the parent's claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under [the] 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 placement was unreasonable.” Carter, 510 U.S. at 16.

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. See 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 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, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).

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 (10) 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.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 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 in the public schools." Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see also Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007).

The relevant equities support an award of tuition reimbursement and/or direct payment for the student’s unilateral placement at the for the 2012/13 school year. In letters dated June 18, 2012, June 28, 2012, and August 21, 2012, the parent gave the DOE adequate written notice of her intent to make a unilateral placement of the student at the for the 2012/13 school year at public expense (Exs. P-I, P-L, P-N). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no evidence indicating that the parent was uncooperative with the CSE (Exs. SD-4, P-F, P-BB at ¶ 14), see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student’s tuition to the was unreasonable (Exs. P-U, P-V, P-W), see Carter, 510 U.S. at 16.

Alternatively, while the DOE contends that the parent never intended to place the student in public school for the 2012/13 school year, based on her signing of an enrollment contract prior to the May 1, 2012 CSE meeting (Exs. IHO-II at 21-22), the parent’s pursuit of a private school is an insufficient basis for denying a claim for tuition reimbursement absent any evidence of her failure to cooperate with the development of an IEP or of her interference with the selection of an appropriate placement by the DOE. See A.R. v. New York City Dep’t of Educ., 2013 WL 5312537 (S.D.N.Y. Sept. 23, 2013); New York City Dep’t of Educ. v. V.S., 2011 WL 3273922, at *15 (E.D.N.Y. July 20, 2011); cf. T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009); Carmel Cent. Sch. Dist., 373 F. Supp. 2d at 417-18.

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,

IT IS

HEREBY ORDERED THAT:

The parent’s claim for tuition reimbursement and/or direct payment of the student’s tuition to the for the 2012/13 school year is GRANTED; and within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parent for all costs associated with the student’s unilateral private placement at the for the 2012/13 school year, and shall directly pay the private school for any outstanding costs associated with said placement. Dated: December 4, 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

PARENTS

A. Letter to (CSE) from enc. Comprehensive Evaluation,

6/25/10, 13 pgs.

B. [Reserved]

C. Notice of IEP Meeting, 4/19/12, 5 pgs.

D. [Reserved]

E. [Reserved]

F. Signed Consent for Evaluation, 5/17/12, 1 pg.

G. Letter to from parent, 5/24/12, 1 pg.

H. Letter to (CSE) from parent, 5/24/12, 1 pg.

I. Letter to (CSE) from , 6/18/12, 3 pgs.

J. [Reserved]

K. Assessment Authorizations, 6/25/12, 11 pgs.

L. Letter to (CSE) from , 6/28/12, 3 pgs.

M. Letter to (CSE) from , 7/3/12, 2 pgs.

N. Letter to (CSE) from , 8/21/12, 7 pgs.

O. [Reserved]

P. Progress Report 2011/12 (2nd Review), 3/2012, 9 pgs.

Q. Progress Report, 2012, 4 pgs.

R. Progress Report 2011/12 (3rd Review), 6/2013, 27 pgs.

S. Program Description, undated, 4 pgs.

T. Program Description, undated, 3 pgs.

U. School Enrollment Contract 2012/13 Academic Year, 4/23/12, 2 pgs.

V. 2012 Enrollment Contract, 6/4/12, 2 pgs.

W. Tuition Affidavit, 11/6/13, 1 pg.

X. 2012 Income Tax Return, 3/22/13, 2 pgs.

Y. 2012 Schedule, 2 pgs.

Z. 2012 Schedule, 1 pg.

AA. Evaluation, 5/6/03, 3 pgs.

BB. Affidavit of , 3/18/14, 6 pgs.

DEPARTMENT OF EDUCATION

1. Due Process Complaint Notice/Impartial Hearing Request, 8/7/13, 8 pgs.

2. Due Process Response, 8/22/13, 3 pgs.

3. Individualized Education Program (IEP), 5/1/12, 18 pgs.

4. IEP Meeting Minutes, 5/1/12, 7 pgs.

5. Psychoeducational Evaluation, 7/12/10, 9 pgs.

6. Final Notice of Recommendation (FNR), 6/21/12, 1 pg.

IMPARTIAL HEARING OFFICER

I. Subpoena, 11/13/13, 8 pgs.

II. Closing Brief for Department of Education, 5/30/14, 22 pgs.

III. Closing Brief for Student & Parent, 5/30/14, 32 pgs.

IV. Confirmation of Extension, 10/18/13, 1 pg.

V. Confirmation of Extension, 11/18/13, 1 pg.

VI. Confirmation of Extension, 11/26/13, 1 pg.

VII. Confirmation of Extension, 1/17/14, 1 pg.

VIII. Confirmation of Extension, 2/18/14, 1 pg.

IX. Confirmation of Extension, 3/20/14, 1 pg.

X. Confirmation of Extension, 4/15/14, 1 pg.

XI. Confirmation of Extension, 5/10/14, 1 pg.

XII. Confirmation of Extension, 6/15/14, 1 pg.

XIII. Confirmation of Extension, 7/14/14, 1 pg.

XIV. Confirmation of Extension, 8/18/14, 1 pg.

XV. Confirmation of Extension, 9/15/14, 1 pg.

XVI. Confirmation of Extension, 10/20/14, 1 pg.

XVII. Confirmation of Extension, 11/19/14, 1 pg.

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”

[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses, in order to allow for adequate time for the parties to submit their post-hearing briefs, and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 163- 164, 211-212, 391-392; Exs. IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX,

[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

[8] NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). 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. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v.

[5] Although Ms. attempted to justify the CSE’s recommendation of a class in a ( ) school based on the availability of vocational instruction (R. 99, 150), her testimony reflects that the class was a default recommendation by the CSE, as and classes are reserved administratively by the DOE for students classified with or as having (R. 149-150).