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: Parents

Dates of Hearing: February 11, 2014

February 25, 2014

Actual Record Closed Date: April 17, 2014

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 11, 2014

Attorney — Parents

Father — Parents

Mother — Parents

Dr. DOE Representative — DOE

CPSE Administrator — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 25, 2014

Esq. Attorney — Parents

Mother — Parents

Father — Parents

Dr. — Parents

(via telephone)

) Director, — Parents

Teacher, — Parents

Dr. DOE Representative — DOE

On February 11, 2014 and February 25, 2014, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

The proceeding was initiated at the request of the parents by correspondence dated October 3, 2013. (Ex. A) I was appointed Impartial Hearing Officer on October 29, 2013, after the recusal/s of one or more impartial hearing officers. I was available to conduct a hearing within 14 days of appointment. At a telephone conference with the parties conducted on November 25, 2013, after the conclusion of the resolution period, the hearing was scheduled for February 11, 2014 and February 13, 2014, the first mutually available dates for the parties, their witnesses and the hearing officer. (T. 4-5, Ex. I) The February 13, 2014 hearing was adjourned as a consequence of weather conditions and was rescheduled to February 25, 2014. (T. 15, 126-127)

The parties moved to extend the compliance date various occasions in light of anticipated testimony, the scheduling of witnesses and the request for submission and consideration of closing memoranda. In considering the requests for extension, I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and written decisions were given to the parties. (T. 5, 15-17, 120, 126, 273-274, Ex. II)

The current compliance date is May 16, 2014. The record closed on April 17, 2014, upon my receipt of all closing memoranda.

Positions of the Parties

The parents assert that the DOE failed to timely convene to develop a program and failed to timely put the August 13, 2013 IEP into effect by issuing a placement and that accordingly the district failed to provide a FAPE for the 2013-2014 school year. Further, the parents claim that the IEP was procedurally and substantively defective thus providing another basis for a conclusion that a FAPE was not provided. They assert that their unilateral placement at or “the school”) was appropriate for this student and there is no basis in equity for the denial or reduction in the tuition reimbursement they seek.

(T. 10, Exs. A, IV)

The DOE asserts that it convened and appropriately developed a program and offered an appropriate placement within the regulatory period provided. It makes no specific claims that was not appropriate. It does, however, indicate that the parents failed to cooperate with the DOE. (T. 12, 13, Ex. III)

Cases Presented

A list of documents in evidence is appended.

A. DOE

The DOE presented the testimony of one witness:

”)

is a certified general education teacher preK-6 and the CPSE 9 Administrator who participated in both the August reviews. (T. 23-24)

She received the evaluation packet on July 16 and she stated that the August 13 review was within the time period mandated by the regulations which she stated required the review to be held by August 27. (T. 44-45)

On August 13th, the team considered and discussed the entire review packet sent by which included conducted in May 2013 (“Evaluation”) (Ex. 7), updated progress reports providers, an Educational Progress from the SEIT who participated in the review and the letter from the parents requesting the review. (T. 29, Exs. 11, 10, 9, 8, 6 ) opined that the Evaluation was consistent with the progress reports received. (T. 31) She described the student as friendly with adults and children, management needs were addressed through goals and objectives relating to social interaction and age appropriate communication skills. (T, 35-36 stated that at the review the SEIT stated that the student was making progress in all areas at the mainstream preschool she attended three times per week with the SEIT but had become very resistant to the SEIT and some of the teachers and was struggling. (T. 45-46)

A special class with 12 students was discussed but rejected because it was believed that she would benefit from being in the integrated model with typically developing peers. (T. 37, 47) believed that in view of this student’s strengths, she would benefit from modeling typically developing peers and the integrated class was the LRE. (T. 41, 47) She stated that all present, including the parents, were in agreement with the recommendation. (T. 42)

With regard to the consideration of the Evaluation, Danner testified that the Evaluation was referenced in the August 13 IEP by the included direction that the Evaluation itself be referenced for its results and, further, that information from the progress reports was included and that that information was consistent with the Evaluation. (T. 99-103, 104, 109) She stated that she read the Evaluation before the review and she opined that the recommendation of a “small, therapeutic, language based special education classroom within a small school” was consistent with an integrated class which she described as an integrated special education class and therefore that the recommended program fulfilled the recommendation. (T. 105-107, 116) stated that the integrated class was consistent with the preschool team recommendation. (T. 117, Ex. 86)

stated that it was her responsibility to locate and offer a CPSE placement. (T. 54-55) At the review the parents informed her that they had been working with the advocate participating in the review and had visited several schools including (“ ”), a CPSE approved school, . (T. 48, 49, 51-52, 53, 60) At the review the parents stated that they were interested in arranged at that time with , a placement official to have the parents visit. (T. 48, 49-50) The date of August 27 was proposed but the parents requested a date after Labor Day and the parents agreed upon September 3. (T. 48, 50) stated that at the August 13 review the parents did not inform her and she did not know that they had enrolled the student at and paid a deposit. (T. 59-60)

Danner sent packet with all evaluations and the August 13, 2013 IEP to CPEL prior to the scheduled visit for is review and that pursuant to procedures that information alone was adequate to make a determination. (T. 64-67) On September 27, she received a letter notifying the student and that she could start on September 30. (T. 61, Ex. 4)

Danner testified that a final offer of placement was required by October 11, 2013 and that she made one on September 27 in compliance with timeline requirements. (T. 56-57 She opined that the offered placement was appropriate and could implement the IEP. (T, 58) She asserted that the parents informed her for the first time that the student was at the September 27 meeting. (T. 67-68, 118-119) Further, at no time after the September 3 visit to the school had the parents expressed any concern about having no placement for the start of school. (T. 110)

stated that on September 4 she had emailed the parent as to how the scheduled visit had gone and the parent had informed her in response that director, told her that there was no placement available. (T. 78, 81-86 was aware an official at the school. (T. 82, Ex. J) hereafter . (T. 87) An email from elling her that a spot in the integrated class had become available because a child had not returned was sent to her on September 9. (T. 88, Ex. H-5) She did not, however, receive it on that date because she was not in the office but could not specifically recall the date that she returned to the office and accessed that email. (T. 90-94) On September 20 she asking her to contact the parents and also asking if the seat was still available. (T. 88-89, Ex. H-4)

With regard to the 11 day time lag, testified that she had expected that CPEL would have informed the parents about the available space when they notified her but learned before her September 20 email did not have contact information and she notified the parent at that time. (T. 90, 112-114)

Danner stated that for this student the 2013-2014 school year began on September 9, 2013. (T. 69) Since she had not received notice of acceptance from CPEL and did not know that the student was attending , on September 17, she emailed the parent to propose a September 25 meeting discuss partial services if the DOE was unable to locate a placement. (T. 74-77, Ex. H)

B. Parents

The parents presented the testimony of four witnesses:

Dr. ”)

and, with a colleague, conducted the Evaluation which included testing, record review, interviewing of parents and teacher, providers and SEIT and class observation.

(T. 138 -140, 147, Ex 7). He described the student as very bright with a good fund of information but with a lot of variability in her skills and functioning with some areas, including attention and concentration, being at the very low percentile while other were at the very high end of the range. She had structure, the more verbal demands of academics, staying on task and impulse control. (T. 141-142, Ex. 7) The student was not making appropriate progress in the program she was then in which included typically developing students in a class of 15-16 students and her own SEIT. (T. 143) The evaluators concluded that the student required a class of smaller than 12 but that the student did not have the skills to be successful in a class with typically developing students without one to one support and sufficient scaffolding. Further they concluded that an integrated class setting was not significantly different from the program she was then in and was not appropriate. (T. 144-145) is familiar with integrated settings and has recommended them when appropriate but recommended for this student a special education classroom within a small school. (T. 144, Ex. 7)

Mother (“the parent”)

The parent’s testimony included the following:

The student had been placed in a preschool by the CPSE. Only nine hours of SEIT services were provided and because it had been concluded she required the SEIT for school, she attended for only 9 hours a week. In February-March 2013, the preschool informed the parents that the student could not come back for the 2013-2014 school year because the program was not right for her. (T. 231-232)

The parents did not inform the CPSE at that time. (T. 259-260) Over several months the parent, working with the SEIT, investigated possibilities at several CPSE approved schools, including . (T. 232) The parents were concerned that the student would have nowhere to go because of the difficulty of finding placements in funded schools signed the enrollment agreement and paid a deposit for a Gaynor on April 28, 2013. (T. 233, 234, Ex. C) The deposit would be refunded if they placed the student in a DOE placement before September 5, 2013. (T. 240-241, Ex. C)

The parents requested a review on May 7. (T, 241-242, Ex. 6) The Evaluation was provided when it became available. (T. 243) At the August 13 IEP meeting, the parent informed Danner about the schools she had investigated. (T. 242) The Evaluation was reviewed. (T. 242) Danner was informed that an integrated setting had been specifically rejected by the evaluators. (T. 271) The CPSE had no other psychological or educational testing. (T. 244) Danner, however, was “gung ho” about an integrated setting. (T. 244) They talked it out and the parents were willing to look at a proposed integrated setting although they were doubtful. (T. 243-244, 258) At the meeting CD said she would attempt to locate a school and returned proposing a visit to CPEL and a September 3 date was agreed to. (T. 245) Although the parent had previously visited it, she had not seen an integrated setting. (T. 242) At the meeting the parent had informed that they made a deposit to hold spot. (T. 245, 246) However, said that Gaynor was not a funded school and stated that she did not wish to discuss it. (T. 246) The discussion concerning was brief. (T. 255)

The parents visited on September 3 and asked , to whom had referred them.

(T. 270) While they were waiting, director, asked why they were there and told them that was no placement available for the student and had not been for months. (T. 247,

257) On September 4th the parent informed by email as to her conversation with (T. 248-249, Ex. J) The first day of for DOE schools was September 9, 2013. (T. 249) The student commenced . (T. 249)

On September 17, the parent received an email stating that wanted to discuss partial services while waiting for a placement. (T. 250, Ex. H) At the review, had mentioned the possibility of a SEIT in the event a placement was not found. (T. 251) A September 27 meeting was agreed upon. (T. 252) On September 23, the parent received an email informing her that there was an opening in an integrated class at and that she wanted to discuss placement on September 27. (T. 253, Ex. H) She was not previously informed that a placement was now available. (T. 256-257) At the September 27 meeting, the parents that the student was because there had been no placement the first day of school, that they thought that that setting was best for her at that time and that it would be detrimental to pull her out. (T. 254-255) The parents were also not confident that there was a spot available in view of the prior representations they had received. (T.

255) At the meeting stated that she had not been told previously. (T. 255) The parents refused to sign a acceptance and thereafter rejected it by email. (T. 256, Ex. I) No response was received. (T. 256) The parent stated that she had not notified the CPSE or that the student was actually until September 27, although on August 23, a 10 day notice stating that if a placement had not been found by the beginning of the school year, that would occur had been sent to Chairperson. (T. 263-268, Ex. B)

She believes the student has progressed at including in motivation, confidence and the cessation of tantrums as well as academic and social progress progress. (T. 234235, 237-238) The parent believes the student has benefited from being part of a group of similar children. (T. 236)

, s Director, and , the student’s teacher , also testified. Their testimony is discussed with regard to the parents’ claim that their unilateral placement is appropriate.

Findings of Fact and Conclusions of Law

A. Undisputed Factual Findings

The student was about 3 years 9 months at the commencement of the 2013-2014 school year (10 month program). (Ex. 1)

She had been and had been classified as a Preschool Student with a Disability by the CPSE which had recommended 10 hours of SEIT, Therapy (“ ”), Therapy (“OT”) and . (Ex. 7)

On April 28, 2014, the parents executed an enrollment agreement with Stephen ” or’ “the school”) for the 2013-2014 school year. Tuition for that year is $52,100. The parents paid a tuition deposit of $9800. The contract provided that if the parents withdrew the student prior to September 5, 2013 to enroll her in a DOE recommended placement all payments, including the deposit, would be refunded. Otherwise their obligation to pay the full tuition for the entire school year was “unconditional”. (Ex. C)

By letter dated May 7, 2013, the parents requested a new CPSE review for the 2013-2014 school year. The parents stated that all professionals working with the student believed that she needed a full-time special education program within a specialized school setting geared towards working with students with her learning profile. They stated that they were in the process of obtaining a new neuropsychological evaluation which they would provide when completed and, further, that they consented to any additional evaluations needed to conduct a new CPSE review. There was no reference to in that referral request. (Ex. 6)

On May 16, 2013, Danner, CPSE 9 Administrator, called the parents and informed them that the CPSE had received the letter, that updated progress reports would have to be obtained from the providers and that the CPSE expected to receive the independently evaluation. (T. 43-44)

A Evaluation was conducted during the month of May 2013 and made various recommendations concerning an appropriate program and placement for the student. (Ex. 7)

By letter , dated July 16, 2013 and received that date, the SEIT/ABA Supervisor transmitted a letter “requesting a review” and included various documents including the Evaluation and progress reports. (T. 44, Ex. 5)

On August 13, 2013 CPSE convened (‘the review”). Participants were Danner, who is also a general education teacher, the student’s SEIT, the student’s parents and a parent advocate invited by the parents. (T. 24-27, Ex. 1) The CPSE recommended a full day Center based program in an integrated class of 12 students, six with IEPS and six typically developing peers, 1 teacher and 1 paraprofessionals, with related services ( Therapy (“SL”) 3x30 ; Occupational Therapy (“OT”) 2x30 Counseling 2x30 1:1) at an Approved CPSE Learning Environment. (T. 26-27, 38-40, Exs. 1, 4).^[1]

By letter to the CPSE dated August 23, 2013 (“Notice”), the parents, by their attorney, asserted various objections to the August 13, 2013 review and IEP, noted that they had not yet received a placement recommendation and stated that a deposit had paid to secure a seat, that the CPSE had been informed of that at the review and that unless an appropriate placement was received prior to the commencement of the 2013-2014 school year the parents would unilaterally place the and seek reimbursement. (Ex. B)

On September 3, 2013, the parents (“ ”) as arranged . (T. 48-50, Ex. J)

By email dated September 4, 2013, the parents informed that they were told by the director that there were no spaces available. The parents requested any information about other placements. (T. 248, Ex. J) No response was received. (T. 248)

The student commenced attendance at Gaynor on September 9, the first day of school for the DOE. (T. 249, Ex. I)

By email dated September 9 to stated that there was at that time a placement at . (Ex. H) did not access that email on that date.

By email dated September 17, Danner informed the parents that she wished to meet to discuss “partial services while …[the student] was awaiting placement.” The parents informed the CPSE that they were available on September 27th. (Ex. H)

By email dated September 20, if the placement was still available and requested that the parents be contracted. (Ex. H)

By email dated September 23, informed that it did not have the parents contact information. (Ex. H)

By email dated September 23, 2013, informed the parents that there was availability and that she would “finalize placement” at the September 27 meeting. (Ex. H)

that it accepted the student by email on September 27. (Ex. 4) At the September 27 meeting, CD informed the parents for the first time accepted the student and that it was being offered by the CPSE. The parents that the student had commenced and that it would be detrimental to pull her out. (T. 254-255) An IEP dated September 27, 2014 was issued. (Ex. 2) The parents rejected the placement in writing by email dated September 30, 2013. (T. 256, Exs. 2, I)

By correspondence dated October 3, 2013, the parents filed the instant Impartial Hearing Request. (Ex. A)

B. Conclusions

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State, the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

Prong 1

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (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). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

I find, for the reasons discussed below that the DOE has failed to meet its burden to establish that it provided a FAPE.

I find no merit in the DOE’s claim that the referral for evaluation was made on July 16, 2013. The evidence shows that the parents requested a referral by letter dated May 7, 2013 and the DOE received that letter by May 16 when Danner responded. Pursuant to 8 NYCRR 200.4(e)(1), the DOE was required to “arrange for appropriate special programs and services” with 60 school days of the referral for review. The fact that the district did not at that time receive necessary evaluative material does not alter the filing date of the request. The CPSE is responsible for gathering necessary information to enable it to comply with regulatory requirements. Further, I note that although the parents were aware that certain evaluative material was required, and indeed that Danner had informed them of that, there has been no claim that the district made the parent aware of relevant time lines or in any way sought to accelerate its receipt of that material. Further, there is no basis for a conclusion that the parent knowingly waived the regulatory time period.

The required material was received by letter dated July 16 While that letter specifies s “requesting a review,” it is nevertheless the case that the district had received that request by May 16. There is no evidence indicating that the parents’ actions in any way delayed the submission of the material Although references submission of a “parent letter”, there is no basis for concluding that that was anything other than the May 7 letter. I note that the dates of the progress reports show they were prepared well in advance of July 16 which suggests that they would not have been the cause of any delay. However, there is nothing in the record indicating that the submission of the later prepared Evaluation was delayed by actions of the parent.

In any event, the CPSE had the material necessary to conduct a review by July 16. The review could, therefore, have been conducted and an effort to identify a placement commenced within 60 school days of the May 16 referral and that was not done. No explanation for the failure to hold a review until August 13 has been provided. There is no indication in the record that any actions of the parents precluded an earlier consideration of the student’s program. However, the failure to comply with regulatory requirements concerning time of review does not require a finding that a FAPE was not provided if the district put the IEP into effect by the commencement of the school year. Tarlowe v. Dep”t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y July 3, 2008).

However, in this matter the district did not offer a placement that would enable attendance at the commencement of the school year as required. 8 NYCRR 200.4(e)(1)(ii). It is undisputed that the parents were not offered a placement by September 9 when the school year began. The evidence shows that the parents visited L on September 3, the date arranged by the CPSE, and were informed that there was no placement available. There is no indication that the CPSE proposed any date earlier than August 27 or that the parents’ request for a later date in view of their plans was opposed by Danner or in any way affected the availability . Although timely notified of the results of the September 3 visit, no placement was offered by the CPSE until September 27, well into the school year. Indeed, I conclude that the parents were not notified as to any availability until September 23, Although testified that the parents were notified that a placement had become available at some unspecified date prior to that, that has not been supported by documentary evidence and I find it not persuasive and based upon a misrecollection . Further, the precise date the information was provided once the school year had begun is irrelevant to a determination that the DOE failed to comply with regulatory timelines in this matter.

Based upon the foregoing, I conclude that the DOE has failed to establish that it offered a FAPE as required. Appeal No. 10-066.

Accordingly, I do not address the parent’s other claims with regard to Prong I except to note that I find credible the parent’s testimony that she informed Danner at the August 13 review had specifically rejected an integrated class as an appropriate placement for this student. With regard to that finding I note that a specialized class had been previously specifically proposed by the parent and that the Evaluation recommendation was consistent with that.

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. Although the parents bear the burden of proof with regard to the services obtained by the parents for the student, they are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

testified concerning the testified concerning the student’s needs. I find that testimony credible.

The evidence shows that the program has 31students, preschool and kindergarten, ranging in age from 3.5 to 5.4. (T. 154-155) The student is in a class of 10 with a lead teacher and a co-teacher, both with master’s degrees in early childhood and general education, (T. 156, 187) The class also has an occupational therapist and a speech language pathologist, who each spend 50% of their time providing services and support to the students. (T. 159-160)

Students are assigned to a particular class at the beginning of the school year based upon extensive assessment prior to an offer for enrollment. (T. 162-163) All students who attend the school and are grouped in particular classes for compatibility.

(T. 163, 170) All children in this student’s class have been determined by the school to be not ready for kindergarten. (T. 155-156)

The evidence shows that an individualized, structured setting as well as similar peer grouping has been provided. (T. 169, 176, 185, 188, 187) Further, the evidence shows that both academic progress has been made at the school. (T. 203,204, Exs E, F. G) The parent has also observed progress. (T. 235-236)

I find the parents have met their burden here and have established offers a program that meets this student’s unique special education needs.

Prong 3

The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. I note that a parent’s preference for a private school, even if established, and even the signing of a contract prior to an IEP review, is not dispositive of a claim for DOE payment. Appeal No. 05-087. The DOE has the burden with regard to this issue.

As discussed above in the section concerning Prong 1, there is no evidence that the parents delayed the timely consideration of this matter or rejected, explicitly or implicitly, a timely placement offer. They visited the proposed school on the date specified by the DOE and were not offered and did not reject it or any and any other timely DOE offer.

I find that the parents informed on August 13 that they had credit the testimony of the parent that she mentioned the deposit on August 13. However, I testimony she was not aware that the and enrollment until September 27. I note that that is consistent with the offer of partial services based upon a belief that the student was not in school.

To the extent that the parent’s testimony suggests that the parents were open to consideration of other possibilities as late as September 27, I find that not credible. I note that there is no basis for a conclusion that parents could have gotten a refund after the commencement of the school year here where the enrollment contract indicates otherwise and the parents have not claimed that expectation in this proceeding.

Nevertheless in the instant matter, I find that the parents cooperated in the development of the IEP, did not hinder the CPSE in its efforts to find a placement, visited when provided with a possible placement and were not unreasonable. Further, a 10 day Notice was timely submitted stating their objections. Their hopes and/or actions subsequent to the DOE’s failure is not relevant to a determination of the equities where the DOE has presented no evidence of an action by the parents that prevented it from carrying out its responsibilities to timely develop a program and put the IEP in effect prior to the beginning of the school year.

Accordingly, I find no basis for the denial or reduction of tuition reimbursement based upon equitable considerations.

Order

The DOE shall reimburse the parent $52,100 for the student’s for the 2013-2014 school year upon its receipt of satisfactory evidence of the student’s attendance and the parents’ payment.

Dated: May 2, 2014

Judith Schneider mv

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTS ENTERED INTO THE RECORD

1 IEP, 8/13/13, 24 pgs. Department of Education

2 IEP, 9/27/13, 22 pgs. Department of Education

3 FNR, 9/27/13, 1 pg. Department of Education

4 Preschool Acceptance, 9/27/13, 1 pg. Department of Education

5 Cover Letter from , 7/16/14, 1 pg. Department of Education

6 Letter from Parents, May 7, 2013, 1 pg. Department of Education

7 5/17, 22& 28/2013, 10 pgs. Department of Education

8 Educational Progress Rpt., April 2013, 6 pgs. Department of Education

9 Progress Rpt., 5/5/13, 2 pgs. Department of Education

10 Progress Rpt.- P. L. Rode, undated, 3 pgs. Department of Education

11 Progress Rpt., 4/29/13, 2 pgs. Department of Education

A Request for Impartial Hearing, 10/3/13, 5 pgs. Parents

B “10 day” Notice, 8/23/13, 2 pgs. Parents

C Enroll Agree., executed 4/28/13 & 5/1/13, 4 pgs. Parents

D Weekly Schedule, undated, 1 pg. Parents

E Mid-Year Report Card, 2/3/14, 3 pgs. Parents

F Remediation Report-Mid-Year, undated, 4 pgs. Parents

G Progress Rpt-Mid-Year, undated, 3 pgs. Parents

H Email exch. re IEPs & placement, various dates, 5 pgs. Parents

I Email rejecting placement, 9/30/13, 1 pg. Parents

J Email exch. , Aug-Sept 2013, 4 pgs. Parents

I Prehearing conference memorandum Impartial Hearing Officer

II Compliance date extension decisions Impartial Hearing Officer

III DOE closing memorandum Impartial Hearing Officer

IV Parents Closing Memorandum Impartial Hearing Officer

V Notice of record closing Impartial Hearing Officer

Footnotes

[1] In its September 27, 2013 Preschool Acceptance Letter, the recommended placement described the class as a 6:1:1 in a 12:1:2 integrated class. Upon review of that letter stated that that was what was offered the parents. (T. 38-40, Ex. 4) I conclude, however, that the program was described at the August 13 review as a 12:1:1 program.