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: February 4, 2014

July 15, 2014

October 9, 2014

Actual Record Closed Date: October 30, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 4, 2014

Attorney — Student

Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 15, 2014

Attorney — Student

Parents

Director of — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 9, 2014

Attorney — Student

Parents

DOE Attorney — DOE

INTRODUCTION

On 09/25/2014, 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).

Said appointment was made after recusal of another IHO. Two hearing dates had already taken place prior to my appointment. Transcripts and evidence entered at those hearings are noted herein and were reviewed as part of the record.

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

Prior to my appointment an extension of the compliance date was requested by the parent and granted by the previous hearing officer. (T 52-53)

Prior hearing officer also ruled that reimbursement would not be ruled upon during this proceeding since they were not raised in the due process complaint. (T 65-66)

Prior IHO admitted documents with notations that are reflected in the evidence list attached hereto.

Prior IHO refers to emails that were intended to be entered into the record. These appear to have been related to requests for extension of the timelines. Current IHO does not have these emails to enter into the record. (T 195-196)

IHO conducted one hearing date of 10/09/2014. Parties did not call any witnesses, extension of the timelines was requested and granted (IHO Ex II), and a schedule was set up for providing closing statements to the IHO. (T 202-204)

This matter was instituted by the impartial hearing request dated 09/30/2014 (Ex A 1-6) as corrected by corrected hearing request, dated 01/30/2014 (Ex A 7-12) 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 2012-2013 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2012-2013 school year. (Ex A 1)

Relief sought includes reimbursement for unilateral placement at ) for student attendance from 07/01/2012 through 06/30/2013. (Ex A 11)

BACKGROUND

Student information during the commencement of the 2012-2013 school year included: 20 years of age, , reading transportation paraprofessional (Ex 1-13)

Student graduated at the conclusion of the 2011-2012 school year. (T 168 &Ex

P) Student then entered . Parent did not sign any tuition or enrollment contract for the 2012-2013 school year. The last tuition indicated a student graduation date of June 2012. (Ex P) On 07/01/2012 student , a residential program designed for “individuals who recently graduated .” (Ex B)

THE PARENT’S POSITION

attorney, presented the parent’s position.

contends that “Recent evaluation recommends residential placement to continue for this year. There can be no doubt that…2012-2013 school year placement was appropriate, as he transitioned with less supervision, yet still within a safe and monitored environment. The last evaluation by the Department of Education was in 2009, and parent notified her intention to obtain a private evaluation, should the DOE not perform one, to which there was no response. Parent has cooperated to the best of her abilities, and would have been willing to accept an appropriate public school program had one been offered. Parent respectfully requests that the IHO find was an appropriate placement for the 2012-2013 school year, which is the only year at issue in this case.“ (T 18-19)

Parent contends, in part, reimbursement is has been paid based on the contract’s stated . (IHO Ex 7-8)

PARENT WITNESS

), the student’s mother testified.

Student’s diagnosis (T 20), awareness of and two months as a result of evaluations (T 21), student (T 21), student had issues (T 22), student was evaluated throughout the years (T 15), student until he (T 23-24), concerns regarding wandering continued (T 24), , more of a 24 hour or day and night, much more of a structured program (T 24), and recommended a residential school (T 25).

found the residential school did not fulfill the student’s needs “because they did not give him services that he required …care…I decided to move Student until he (T 25-26)

Student attended for two years successfully graduating the program. (T 29)

found on her own. (T 46)

communicated with the school through meetings with the whole staff every three months. (T 25), printed reports from providers (T 47), is in touch with the school often, and receives emails from about her son each week from staff. (T 46)

Student had . (T 30)

A meeting was held to determine if the student program in the spring. (T 3031)

has students not living on campus, they have their own apartment, do their own laundry, supervisor is not with , a schedule of classes, they list, “so step by step, they gain more independence, and for what they're doing.” (T 31-32)

more . (T 32-33) For the 2012-2013 school year the student . His jobs included to clean and to . (T 33-34)

Student learned how . Student could not have done this in the prior program (T 35), or the previous school year (T 49). recipes, use a tip calculator, and use of a calculator while shopping. (T 37-38) Student by going . (T 37-38)

has seen progress through , via use of (T 236), and through speech language services, through his being able to reciprocate conversations (T 39).

notes progress in seeing the student he

does not believe a day school would have provided the proper support. Or the constant repetitive modeling, that he needed. (T 41)

Parent sought and obtained an evaluation in spring of last year. (T 42)

notified the DOE she was placing her for the 2012-2013 school year, would be seeking a private evaluation, for the 2012-2013 school year. (T 43)

cannot because she has another child with special needs. (T 43)

PARENT WITNESS

( ), Director of the as “a non-profit school that living skills for with a wide variety of as , . And we and deem that are ready to transition from a high school environment and continue to learn different independent living skills, cooking, taking has known the student since he in 2010. (T 84)

A schedule is developed for each student each semester. (T 83 & 85, Ex V)

A team had determined the student done during time This includes scores and if it would be beneficial for the student to spend . (T 84)

detailed more specifically aspects of the student’s schedule. This included personal hygiene may include a checklist for needs identified by the team to move the student towards independence (T 86-87); student appointment (T 88); and a specialized teacher who works meets the student weekly and oversees his schedule, goals and objectives (T 88-89); meeting with a (T 93); life skills “trying to prepare these students to be more independent and get jobs and manage their time which can be challenging” (T 96); an outside occupational therapist (T 96-97); (T 97); (T 98); and going over a budget (T 99-100).

testified that the student had more oversight at the beginning of the school year and as the year progressed he was . (T 102-103)

reviewed aspects and the students schedule and program in general. (T 104-131)

states that the student progressed, “as did all in their own individual goals…” (T 136-137)

For the 2012-2013 school year a transition fee packet would have been sent to the parent. (T 188) Packet would have included rent for the student apartment. (T 189)

DEPARTMENT OF EDUCATION POSITION

attorney for the District, presented the DOE position, at hearing of 02/04/2014.

At hearing of 02/04/2014 the DOE conceded it had not offered the student a FAPE for the 2012-2013 school year. (T 13)

) represented the DOE at subsequent hearing dates.

DOE contends is not appropriate due to the student living like a typical adult (T 79-81), and not taking academic classes in the summer of 2012 (T 84-85, 182 & 189).

Tuition included the cost of the student’s apartment, but not therapies contracted by the family for the student. (T 189-190, 96-97 & 181-182, IHO Ex III 5)

DOE contends that considering the placement offered by the DOE the student did not require residential placement. (Ex 1, IHO Ex III 5)

The DOE contends the placement , did not meet the student‘s needs, and the student had already mastered the academic and skills . (T 15, IHO Ex III 5)

DOE also contends that the Parent is not entitled to reimbursement since the student funded . (Ex Q) Parent “has not provided any evidence that she expended any monies on behalf of the or entered into a contract with the school for the aforementioned services. Additionally, the DOE should not be required to pay for an independent living program that was chosen by the Parent when the student . “ (IHO Ex III 6)

DOE seeks dismissal of the parent’s complaint. (IHO Ex III 6-7)

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 has conceded it has not offered the student a FAPE for the 2012-2013 school year. (T 13)

EQUITABLE and CONTRACT CONSIDERATIONS

A description was offered in evidence via general program (T 104-131), and documentary evidence which included a description (Ex B) and class schedule (Ex O).

and provided included an affidavit reflecting via three checks. Payment was made by “ However, none of the checks came from the parent. Instead the checks were issued by a property guardian of the student, or noted to be . (Ex P & Q)

There is no evidence to support the conclusion that the parent is, or was at any time, actually obligated in any way to pay any tuition or fee for the student. There was, and is not currently, any evidenced obligation of the parent to pay any fee or tuition related to the student’s attendance at . Additionally, parent has not evidenced any financial debt or incurred any charge. Without such an obligation the parent cannot seek reimbursement for any obligation or cost, that they have not and cannot suffer. (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. Feb. 1, 2011])

No contract regarding the student has been submitted. General testimony regarding services delivered to the student do not serve to obligate the parent in any way to pay for those services.

AO testified that she notified the DOE she for the 2012-2013 school year, would be seeking a private evaluation, and is seeking tuition reimbursement for the 2012-2013 school year. (T 43) continued she cannot afford the tuition because she has another child with special needs. (T 43)

Insofar as the equities are concerned the parent did not evidence that she placed the student . No contract was provided, despite the fact that the affidavit of payment refers to a contract and notes a non parent as the payor of the student’s tuition. (Ex P)

It is unclear who actually enrolled the for the 2012-2013 school year and who, if anyone was obligated to pay the student’s tuition and related fees.

Parent claims she cannot afford the tuition payment. However, 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 no financial information which may otherwise explain the unclear tuition arrangement and financial status of the parent and child. Absent any evidence provided to further explain the parent’s financial capabilities and resources I decline to find that the parent has sufficiently established entitlement to any funding of the student's tuition costs for the 2012-2013 school year (see Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-30 [S.D.N.Y. 2011]; Application of the Dep't of Educ., Appeal No. 12-070; Application of a Student with a Disability, Appeal No. 12-004.

I find the parent has not established any unilateral placement which obligated for the student for the 2012-2013 school year.

ORDER

1. Parent claims against the DOE are dismissed.

2. This decision is subject to appeal and review by the State Review Officer. Dated: November 7, 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 THE RECORD

PARENT

ENTERED 02/04/2014

A Hearing Request & Corrected Hearing Request, dated 9/30/13 & 1/30/14, 12

pages B Description, 1 page C Entry Eval, Sign in Sheet & Minutes, dated 10/17/12, 4 pages D Annual Report, Sign in Sheet & Minutes, 7/2013, 5 pages E 18-mo. review, dated 7/11/11-2/4/12, 4 pages F , dated 10/3/12, 1 page G Assessment, dated 5/2/11, 7 pages H Note, dated 10/3/12, 1 page I Plan & Progress Reports, dated 7/17/13, 9 pages J Progress Reports, dated 7/17/13, 10/17/12, 11/2/11, 6 pages K Goals & Progress Report, dated 7/18/13, 10/17/12, & 12/15/11, 5 pages L Summary Update, 6/20/13, 1 page M Dr. Letter, dated 7/29/13, 1 page N Disabilities Clinic Eval Summary, dated 10/22/13, 16 pages O '12-'13 Class Schedule, 5 pages P Contract Fees, Affidavits of Pmt, 2010-2011-2012-2013, 8 pages Q Proofs of Payments, 12-13, 38 pages R Guide for Parents, 11/2011, 24 pages S Letter from Parent, 5 pages

ENTERED 07/15/2014

T Marked - Not Entered into the Record U Identified - Not Entered into the Record V Summer 2012 through Spring 2014 Semester Schedule, 7 pages W Marked - Not Entered into the Record

DEPARTMENT OF EDUCATION

ENTERED 07/15/2014

1 Individualized Education Program, Dated 3/8/12, 20 pages

(Admitted for the limited purposes of prong two)

2 Tuition Agreement, Dates 11/2/10 - 6/30/12, 1 page

IMPARTIAL HEARING OFFICER

ENTERED 10/02/2014

I E-mailed notice of appointment dated 9/26/14, 3 pages

ENTERED 10/30/2014

II Grant of Extension of Timelines, 10/14/2014, 3 pages III NYC DOE Closing Brief, 10/30/2014, 7 pages IV Parent Summation, 10/29/2014, 8 pages