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: January 27, 2014

April 7, 2014

April 24, 2014

June 10, 2014

June 17, 2014

June 18, 2014

Actual Record Closed Date: July 15, 2014

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney DOE 01/27/14 Attorney DOE 04/07/14 04/24/14 06/10/14 06/17/14 Attorney DOE 06/10/14

Dr. School Psychologist DOE 04/24/14 Parent Representative PARENT 01/27/14 Attorney PARENT 04/07/14 04/24/14 06/10/14 06/17/14

Father PARENT 04/07/14 04/24/14 06/10/14 06/17/14 Program Director PARENT 06/17/14

(T) Occupational Therapist PARENT 06/17/14

(T) Psychologist PARENT 06/17/14 *did not testify* PARENT 06/17/14

“ “ “ (T) Speech Therapist 06/18/14 *did not testify* PARENT 06/17/14

“ “ “ (T) Teacher 06/18/14

On November 18, 2013, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), Article 89 of the New York State Education Law and Part 200 and of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parent old student attending a private school and the New York City Department of Education (“DOE”) - Home District: 15, Service District: 14, concerning the student’s special education program. After adjournments were granted on consent or for cause, the impartial hearing was held on January 27, 2014 (“pre-hearing conference”), April 7, 2014, April 24, 2014, June 10, 2014, June 17, 2014 and June 18, 2014. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student has “autism” and was denied a “free and appropriate public education” (“FAPE”) for the 2012-2013 and 2013-2014 school years. (P-A) Specifically, the Parent alleges that the student’s Individualized Education Programs (“IEP”) dated March 9, 2011, March 13, 2012 and June 10, 2013 are procedurally and substantively flawed. (Id.) Accordingly, the Parent unilaterally placed the student a private school for the 2012-2013 and 2013-2014 school years. (Id.) At the impartial hearing, the Parent seeks relief in the form of tuition payment and/or reimbursement for the student’s tuition, related services and transportation for the 20122013 and 2013-2014 school years.

The parties agreed to the following facts as per a stipulation placed on the record:

(1) The student old and resides with his Parent.

(2) The student is classified as .

(3) On March 13, 2012, the Committee on Special Education (“CSE”) convened to formulate an Individualized Education Program (“IEP”) for the student for the 2012-2013 school year.

(4) The student’s IEP dated March 13, 2012 recommended a program with physical therapy, occupational therapy, therapy and a crisis paraprofessional with placement at a public school.

(5) On June 10, 2013, the CSE convened to formulate an IEP for the student for the 2013-2014 school year.

(6) On August, 2013 after the start of the 2013-2014 school year, the Parent corresponded with the CSE via letters and email stating that they had not received the student’s IEP or placement and program recommendations.

(7) The Parent received a “Nickerson Letter” dated August 12, 2013.

(8) The student was home and did not attend school in July, August, September, October and part of November 2013.

(9) The DOE concedes that it did not offer the student a “free and appropriate public education” (“FAPE”) under Prong 1 of the Burlington/Carter test for the 20132014 school year. (T-39-41)

The agency declined to pursue any “res judicata” or “collateral estoppel” claims as the result of a decision previously rendered concerning the student’s 2011-2012 school year. (T-54-5)

On June 18, 2014, the parties settled all of the Parent’s claims regarding the 20132014 school year. (T-347) Accordingly, this decision will only address the Parent’s claims for the 2012-2013 school year.

THE DOE’S CASE

The DOE argues that the Parent cannot establish an obligation to pay the student’s full tuition at the private school. (T-43) The private school contracts actually contemplate preliminary tuition by the DOE and not the Parent because the language of the contract itself requires the Parent to file suit against the DOE. (Id.) The private school, not the Parent incurred the financial burden and the private school is not a party in the case and therefore not entitled to relief under the IDEA. (T-43-4)

The DOE called (1) witness to testify on its behalf and submitted (8) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first and only witness participated in the student’s March 2012 IEP meeting. (T-67) He is a . (T-73) He did not specifically recall the meeting and said that for the 2012-2013 school year, he attended somewhere between (150) and (200) meetings. (T-74-5) Even after reviewing the student’s IEP, Behavior Intervention Plan (“BIP”) and his Functional Behavior Assessment “(FBA”) he did not recall the specific discussions at the meeting or who participated. (T-75 & 77) Although the witness said his recollection as to who participated in the March 13, 2012 IEP meeting was refreshed after reading the document, the undersigned found that the witness was basically just reading documents over the telephone at the hearing and in large part did not have a specific recollection of the meeting, what was discussed, who participated and/or what documents were reviewed. (T-77-9, 89, 93, 98, 101-2, 107, 109, 117, 122, 128, 135, 1456 & D-2)

The witness testified that the private school shares the same opinion at every meeting, i.e., that the student can only make progress if he is in the same exact staffing ratio as that of the private school. (T-148) All of the private school teachers and staff that participate in the meetings seem to be quite heavily coached. (T-149-50)

THE PARENT’S CASE

The Parent argues that he has done everything possible to cooperate with the DOE. (T-44) A previous hearing officer found the private school was appropriate for the student and that the equities favored the Parent, but that that the student had been offered a FAPE based on a reading of the law, has been found incorrect by subsequent district court decisions and State Review Officer (“SRO”) decisions. (T-46) However, the “…case is still pending before the SRO.” (T-46-7) Accordingly, at the end of the 2012 school year, the student because of the financial situation and the Parents kept him at home. (T-47) The “Nickerson Letter” was issued late to the Parent. (T-49) In September, a New York State approved non-public school initially accepted the student, but then changed its mind. (Id.) There is very little question about the student’s . (Id.) The student has progressed at the private school. (T-50)

The Parent’s first letter from the Parent to the DOE was on August 7, 2013 and the DOE issued a Nickerson Letter (5) days later. (T-54)

The Parent called (6) witnesses to testify on his behalf and submitted (21) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The first witness to testify for the Parent is the student’s father. (T-173) He stated that the student is (10) years and (5) months old. (Id.) He is a guidance counselor for the DOE. (T-222) The student’s mother works for a day care agency. (T-223) He believes the student started to attend the private school in 2010. (T-175) His reimbursement claim for that year is still up in the air. (T-177) For the 2012-2013 school year, the student needed a smaller class setting than the DOE offered. (T-178) The student needs constant supervision because he “mouths” objects. (T-179) To keep him regulated, the student needs to walk around. (T-180) The and so going up and down stairs can sometimes . (T-183)

The witness testified that the student’s “communication with peers” has become a lot better at the private school, because it is part of their philosophy of teaching through socialization. (T-184-5) The student really does not understand the concept of turntaking. (T-185) He attended an IEP meeting for the student on March 13, 2012 by telephone. (T-185-6) He does not recall if the DOE witness attended the meeting. (T-

186) He did not hear the DOE witness speak at the IEP meeting. (T-188) The student’s private school teacher and social worker attended the meeting. (T-191-2) They added paraprofessional for the 2012-2013 school year and discussed the student’s goals. (T-

192) The DOE recommended setting in a District 75 program for the student. (Id.) He had visited schools and was familiar with the DOE recommended program. (T-197)

The witness testified that he was seeking a classroom that would be appropriate for the student’s needs. (T-198) Basically, a classroom that did not have many things around that would for the student. (Id.) The student’s private school teacher and social worker recommended the private school program that the student was currently in, which he agreed with. (T-199-200) He did not receive a placement offer for the 2013-2014 school year, but did receive one for the 2012-2013 school year. (T-204) He wrote a letter to the CSE on July 11, 2012 declining to accept their recommended program. (T-205-07 & P-C)

The witness testified that the student made progress at the private school during the 2012-2013 school year in that his socialization got a little better, he was able to read sight words, was able to regulate a little bit more and needed the weighted vest. (T-207-

09) The student was evaluated in July of 2010 and provided a copy of the evaluation to the CSE. (T-209-10) During the summer of 2013 he received a “Nickerson Letter.” (T-

216) A New York State approved non-public initially accepted the student, but then changed its mind, at which point the student was returned to the private school. (T-221)

On cross examination, the witness testified that he requested and received a 1:1 paraprofessional for the student for the 2012-2013 school year. (T-225) The private school objected to the DOE’s recommended program, but he was open to it. (T-226) He has not filled out an application for the private school for the 2012-2013 and 20132014 school years. (T-231 & P-S) For the 2013-2014 school year he owed the private school $69,326. (T-232 & P-P) As of March 24, 2014, he made a one time payment of $2,500. (T-232 & P-Q) He has made several payments, but does not know to what year they apply. (T-232) He is currently paying the private school for the 2011-2012, 20122013 and 2013-2014 school years. (T-223) For the 2012-2013 school year he has paid $6,000. (Id.) He pays $300 per month to the private school and whatever he can pay for the 2013-2014 school year. (T-234) From his understanding; he is responsible for paying based upon the contract. (T-237) He waited until November of 2013 to file for tuition reimbursement for the 2012-2013 and 2013-2014 school years because he was hoping for an appropriate setting for the student. (T-238)

On re-direct examination, the witness testified that he agrees with the CSE’s determination to defer the student’s case to the Central Based Support Team (“CBST”) for this current school year. (T-240) There was no re-cross examination of the witness. (T-242)

On re-call examination, the witness testified that for 2012 his adjusted gross income was $132,424.00 with his wife, but they are in the middle of a divorce. (T-335) His wife is not the biological parent of the student. (T-336) On re-cross examination, the witness testified that the student’s mother claims him as a dependent. (T-339-40)

The Parent’s second witness is the program director for the private school. (T-

252) She testified that under their contract, the family can be released from the agreement if they are provided a placement by the DOE by a certain date. (T-255) The student was appropriately placed at the private school because they were able to understand his needs, individualized the program to meet the student’s needs and saw him make progress during the 2012-2013 school year. (T-256-7 & 260)

The witness testified that the addendum to private school contract for the 20132014 school year was for (8) months, even though they are a 12-month program. (T-260 & P-P) For the 2012-2013 school year, the student was in a class with a head teacher certified in special education, three teacher assistants, an occupational therapist, speech therapist and a counselor. (T-262)

On cross examination, the witness testified that depending on these proceedings, a new payment schedule would be issued to the Parent. (T-265) They require Parents to seek funding from the DOE in “prospective contracts” because it is part of their “Parents’ Rights.” (T-266) That is also why they require a letter confirming “representation.” (Id.) A discussion between the private school Admission’s Director, the Parent and the Parent’s attorney determines whether the Parents are entitled to “prospective funding.” (T-266-7) They do not evaluate they likelihood of success at a hearing. (T-267) The late fee payment for the 2012-2013 school year is $300.00. (T-267) The Parent’s total deposit of $5,000 was due June 29, 2012, but they did not charge the Parent a late fee. (T-268-9) Neither did they charge the Parent a late fee for not making the next payment on March 15, 2013. (T-269) The late fee for the 2013-2014 school year increased to $375. (Id.) The Parent’s total deposit payment for the 2013-2014 school year was only $2,500 which the Parent paid late on November 12th. (T-270) They did not charge the Parent a late fee for that late payment either. (Id.)

The witness testified that if the Parents contact the private school business manager and set up and make payment under a payment plan, they do not charge them a late fee. (T-271) They do not change the language of the contract to reflect any new agreements with the Parents. (Id.) The contract is “fluid” at the discretion of the business manager. (T-271-2) To date, the Parent has paid $6,000 and has a balance due of $91,700. (T-272 & P-N) For the 2013-2014 school year, the Parent has a balance of $66,826. (T-273 & P-Q) To pay off the total balance of approximately $130,000 they would work with the family and set up a monthly payment schedule that they would expect the Parent to adhere to. (T-273) If the Parents do not work with them, they would “counsel” them out of the private school and not let them re-enroll. (T-279) In (8) years, maybe (3) or (4) Parents have been counseled out because most of them make payments. (T-280)

On re-direct examination, the witness testified that the student was returned to the private school for the 2013-2014 school year because the family was trying to pursue a public school placement. (T-281) The Parent was not “counseled out” of their program. (Id.) There was no re-cross examination of the witness. (T-284)

During voir dire, the witness testified that any new payment terms with the Parents have to be reasonable so that “…it is not being paid…over 200 years or something like that.” (T-285) They do not reduce the tuition owed. (T-286)

The Parent’s third witness has worked with the student as his occupational therapist since September of 2012. (T-287-8) She works full time at the private school. (T-291) She looks at the student as most of her energy on helping him regulate throughout his day. (Id.) She prepares progress reports and contributed to the student’s private school report for December of 2012. (T-295 & P-L) She pulls the student out for two individual sessions and runs a group session within the classroom. (T-296) She has also trained the classroom staff to implement . (Id.) Sometimes, the individual sessions are held in the sensory gym and a “weighted vest” helps the student understand where his body is in space. (T-298)

The witness testified that during the 2012-2013 school year, the student progressed in his ability to sit with a group and his ability to individually scan his environment. (T-300)

On cross examination, the witness testified that “tone” is different from “strength” in that “tone” refers to the muscles readiness to engage. (T-305) The student’s in therapy did not cause specific regression, but she believes that the student did not benefit from the months he in 2013. (T-307) On re-direct examination, the witness testified that the student has made slow, but steady progress. (T-310) There was no re-cross examination of the witness. (Id.)

The Parent’s fourth witness gave the student individual counseling twice a week for (30) minutes since December of 2013. (T-315) She is a psychologist. (T-316) When she first met the student . (T-319) The student has since progressed in terms of their relationship. (T-325) The student’s “circles of communication” have consistently increased. (T-326)

On cross examination, the witness testified that the student prefers more adult relationships. (T-327) After half a year, he gravitated more towards playing with peers with heavy adult support. (T-328) There was no re-direct examination of the witness. (Id.)

The Parent’s fifth witness worked with the student as his speech therapist. (T-

348) She worked with the student for the past two years. (T-352) The student presented as a very . (Id.) During the 2012-2013 school year, the student two times individually and one time in a group of four. (T-353) She did a lot of play with the student and received feedback from the occupational therapist. (T-354) The student could request and protest to get his needs met. (Id.) They were not really forcing the student to do a lot of paperwork. (T-355) The student cannot really elaborate as to why he is feeling a certain way. (T-357)

The witness stated that they have a cooking group of four students. (T-359) The student’s vocabulary expanded. (T-360) The “DIR” method is employed all day, every day and throughout any of the activities that she does with the student. (T-361) To prevent the student from biting down on his fingers she gave him “Twizzlers”, “Gummys” or a “chewy cube.” (T-363-4) The student was a little more regulated. (T-366) He was more of an active participant in the cooking group. (Id.) The student’s progress was slow and steady. (Id.)

There was no substantive testimony developed during the witness’ cross examination. (T-367-8) There was no re-direct examination of the witness. (T-368)

The Parent’s sixth and final witness was the student’s private school teacher. (T-

369) She met the student in September of 2012. (T-375) The , had a difficult time forming relationships and . (Id.) The student required a significant . (T-376 & 381) They worked very hard to get the student and then expanded his ability to engage with other people. (T-382) They had a for the student. (Id.) It included a brushing protocol with joint compressions every two hours. (Id.) The staffing ratio in the classroom was 8:1:3. (T-383) By engaging the ” and acknowledging, identifying and validating his emotional state, they helped . (Id.) The student progressed with regard to his regulation and engagement. (T-386)

The witness testified that for two-way purpose of emotional interactions, they expanded the student’s ability to open and close circles of communication. (T-388) They did not have textbooks, but instead had literary materials and reference materials for the teachers. (T-390) The literacy program uses picture books, fairytales, poems, plays and non-fiction. (Id.) They individualized the student’s program for fluency. (T-391) Initially, they did reading with the student. (Id.) They also enlarged the print on the books that they were reading, limit sentences to one page and presented pictures and text separately. (T-392) In word recognition, the student gained sight words for every book they read. (T-394) By June, the student had up to (40) receptive words and around (20) expressive words. (Id.) In math, they initially worked on number sense in correspondence and simple math skills and were able to go from (1) to (15) by the end of the year. (T-394-5) As the year went on, the student’s regulation improved. (T-395) They used a calendar and the environment to develop the student’s number sense. (T397-8) For time and space they used the daily schedule and an analog clock. (T-400) The student also progressed in science for the 2012-2013 school year. (T-406)

On cross examination, the witness testified that she was the student’s teacher consistently for the 2012-2013 school year. (T-408) The student does not have a paraprofessional at the private school. (T-409) At the private school, the student received sensory input every (30) minutes. (T-410) There was no substantive testimony developed during the witness’ re-direct examination. (T-411-2) There was no re-cross examination of the witness. (T-412)

FINDINGS OF FACTS & DECISION

Two 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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE 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 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See 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] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

Under the IDEA, if a procedural violation is 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]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and 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 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) However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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] [citations omitted] and 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 and 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 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and 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] and 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]; 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; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and 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 accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 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]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The DOE 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] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) 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. (See Burlington, 471 U.S. at 37071; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "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. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and 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 and 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. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-

105) 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 and 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….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) 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." (See 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 specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

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. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at

364-65).

The IDEA allows that tuition 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 child 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." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 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." (See 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 tuition 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 v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and 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"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition 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, fail to engage with potential placements offered 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]; 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] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)

I first turn to the question of whether the DOE offered the student a FAPE for the 2012-2013 school year. The parties stipulated that the student received a “Nickerson Letter” for that school year. (T-39-41, 49 & 216) The “Nickerson Packet” is dated August 12, 2012. (D-8) A “Nickerson letter” is a letter from the DOE to a Parent authorizing the Parent to immediately place the child in an appropriate special education program in any stateapproved private school, at no cost to the Parent. (See Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298) The remedy of a Nickerson letter is intended to address the situation in which a child has not been evaluated or placed in a timely manner. (See SRO Nos. 06-088, 02-075 & 00-092) The remedy is also available when a student has completed all necessary evaluations but a Final Notice of Recommendation (“FNR”) is not sent and/or given to the Parents by the student’s eligibility date. There again, the Parent must be sent and/or given a Nickerson Letter entitling the student to be placed in an appropriate non-public school at public expense. (Jose P., et al. v. Thomas Sobol, et al., 1995 WL 591304 (EDNY) - Stipulation)

Federal regulations specifically direct that a school district must have an IEP in place at the beginning of the school year. (See 34 C.F.R. § 300.323[a]) The “Nickerson Letter” remedies the systemic denial of a FAPE that was imposed by the U.S. District Court based upon a class action lawsuit. (See R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 192, n.5 (2d Cir. 2012)) The remedy provided by the Nickerson Letter is intended to address those situations in which a student has not been evaluated within (30) days or placed within (60) days of referral to the CSE. (Id., R.E., 694 F.3d at 192, n.5, M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 279 (E.D.N.Y. 2010), SRO Nos.: 03-110, 02-075 and 00-092)

Here, the issuance of a Nickerson Letter by the DOE is a concession that it has not complied with the tenants of the law. The Parent acknowledged that he did receive a placement offer for the 2012-2013 school year on or about July 2, 2012. (P-C) He wrote a letter to the DOE on July 11, 2012 rejecting that offer and serving notice of the student’s unilateral placement at the private school. (T-204-7 & P-C) The FNR submitted in evidence is dated July 2, 2012, far beyond the (60) referral made by the CSE on March 13, 2012. (D-2 & P-C) It is also important to note that the student’s IEP designated him for a 12-month school year, which began in July of 2012. (Id.) The Parent sought a placement for the student with the Nickerson Letter and a New York State approved non-public initially accepted the student, but then changed its mind, at which point the student was returned to the private school. (T-221)

Under the circumstances, the DOE could not possibly implement the student’s IEP by the beginning of the 2012-2013 school year. In order to show a violation of the IDEA based on a failure to implement an IEP, “a material failure” must be shown. (See A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 [2d Cir. March 23, 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811 [9th Cir. 2007]; Houston Independent Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]; Fisher v. Stafford Township Bd. of Educ., 2008 WL 3523992, at *3 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003] and SRO Nos.: 10-013, 10-008, 09-130 & 09-088) Here, the agency was not in a position to implement any portion of the student’s March 13, 2012 IEP because no placement was provided in either a public school or a New York State approved nonpublic school. According, said failure by the agency constitutes a “material” failure. (See A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 [2d Cir. March 23, 2010] and Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811 (9th Cir. 2007)(holding that a material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled student and the services required by the student's IEP)

It is important to note that the DOE’s only witness did not specifically recall the meeting and said that for the 2012-2013 school year. (T-74-5) Even after reviewing the student’s IEP, BIP and FBA he did not recall the specific discussions at the meeting or who participated. (T-75 & 77) The undersigned found that the witness was basically just reading documents over the telephone at the hearing and in large part did not have a specific recollection of the meeting, what was discussed, who participated and/or what documents were reviewed. (T-77-9, 89, 93, 98, 101-2, 107, 109, 117, 122, 128, 135, 1456 & D-2) For all of the reasons stated above, I find that the DOE denied the student a FAPE for the 2012-2013 school year.

I next turn to the question of whether the student’s private school placement was appropriate for the 2012-2013 school year. Here, the Parent need only demonstrate that the private school placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 36465)

The only evaluation received in evidence is the student’s Psycho-Educational Assessment Report dated July 29, 2010. (P-B) Federal and State regulations mandate that each student with a disability be reevaluated at least once every three years. (See 34 C.F.R. § 300.303[b][2] and 8 NYCRR 200.4[b][4]) As such, the student’s PsychoEducational evaluation was current and valid to assess the student for the 2012-2013 school year. The student’s Psycho-Educational evaluation was not controverted at the hearing. The evaluation made the following “Recommendations for Intervention and Remediation”:

intelligent ability is classified as . Basically his Long Term Retrieval

(Gir), Short-Term Memory (Gsm). Visual Processing (Gv), and

Comprehension-knowledge (GC) are when compared to peers his age. His academic achievement is also classified as In other words, his performance on reading, math, oral language and written language when compared to peers his age. In addition, seems to be . He has hard time communicating with people. Below are some suggestions for his social communication and for improving his learning ability.

For his Speech and social communication

• Parents need to talk speech pathologist to determine recommendations on oral language development and effective teaching • Based on his test results, it appears that he would benefit from language pathologist may be able to offer further advice to his teacher regarding classroom modifications for language disabled students. • would benefit from direct instruction in social skills in a group led by trained professionals. These groups provide direct instruction through a variety of teaching techniques that include modeling, role-play activities, videos, coaching, and games.

For Long-Term Retrieval (Gfr)

• Provide overlearning, review, and repetition • Provide immediate feedback • Provide a list of steps that will help organize behavior and facilitate recall • Provide multi-sensory learning; use visual, kinesthetic, vocal, and auditory channels as appropriate • Limit the number of new facts, words, concepts presented in one session

For Short-Term Memory (Gsm)

• Keep oral directions short and simple • Ensure directions are understood • Provide compensatory aids (e.g., write directions, procedures, and assignments on board or paper, provide lecture notes or arrange for peer-shared notes, provide study guide to be filled out during pauses in presentation)

For Visual Processing (Gv)

• Provide activities with manipulative • Provide copying, tracing, drawing activities • Provide support for tasks requiring spatial organization

For Comprehension Knowledge (Gc)

• Relate new information to acquired knowledge • Assess prior knowledge before introducing new topics, concepts • Pre-teach relevant vocabulary or background knowledge • Incorporate interests and prior knowledge areas into instructional activities • When presenting directions and discussing concepts, use vocabulary that is understood by the individual (P-B)

Testimony was received that the student , needs regulation and supervision. (T179-80, 291, 319, 352, 375-6 & 381-2) The private school provides the student with an individualized program. (T-256-7 & 260) For the 2012-2013 school year, the student was in a class with a head teacher certified in special education, three teacher assistants, an occupational therapist, speech therapist and a counselor. (T-262) The occupational therapist testified that she focused most of her energy on helping the student regulate throughout his day. (T-291) The student received two individual sessions with her and a group session within the classroom. (T-296) The student’s teacher testified that they had for the student to get him . (T-382) They individualized the student’s literacy program for “fluency” and initially did one on one reading with the student. (T-391) The student at the private school every (30) minutes. (T-410) The record is replete with testimony regarding the student’s progress regarding his socialization, reading, ability to sit with a group and individually scan his environment, in terms of his relationships and “circles of and his knowledge of sight words and math skills. (T-207-09, 300, 310, 325-6, 366, 383, 386, 394-5 & 406) Based on the record before me, I find that the student’s private school placement was appropriate for the 2012-2013 school year.

Finally, I must consider whether equitable considerations bar an award on behalf of the Parent. Here, I find that these considerations do bar the Parent from an award of “prospective tuition reimbursement.” I do not find that there is credible evidence that the Parent must pay the private school for any monies he has not already paid.

The private school director testified that under their contract, the family can be released from the agreement if they are provided a placement by the DOE by a certain date. (T-255) She further testified that depending on these proceedings, a new payment schedule would be issued to the Parent. (T-265) The private school requires Parents to seek funding from the DOE in “prospective contracts” because it is part of their “Parents’ Rights” and they require a letter from the Parents confirming that the Parents have “representation.” (T-266) The director went further and testified that there is a discussion between the private school Admission’s Director, the Parent and the Parent’s attorney to determine whether the Parents are entitled to “prospective funding.” (T-266-

7) Despite the fact the private school can collect a late fee, they have not done so although the Parent made late payments in the 2012-2013 and 2013-2014 school years. (T-267-70)

The private school director testified that a new “payment plan” can be made with Parents who lose an impartial hearing, but then she said they do change the language of the contract to reflect any new agreement with the Parents. (T-271) In fact, the contract terms are not definite, but instead “fluid” at the discretion of the business manager. (T271-2) To date, the Parent in this case has paid $6,000 and has a balance due of $91,700 for the 2012-2013 school year. (T-272 & P-N) For the 2013-2014 school year, the Parent has a balance of $66,826. (T-273 & P-Q) To pay off the total balance of approximately $130,000, the private school director testified that they would work with the family and set up a monthly payment schedule that they would expect the Parent to adhere to. (T-

273) However, the Parents have to be reasonable so that “…it is not being paid…over 200 years or something like that.” (T-285)

The student’s father testified that for the 2013-2014 school year he owed the private school $69,326. (T-232 & P-P) As of March 24, 2014, he made a one time payment of $2,500. (T-232 & P-Q) He testified that he has made several payments, but does not know to what year they apply. (T-232) He said that he is currently paying the private school for the 2011-2012, 2012-2013 and 2013-2014 school years. (T-223) For the 2012-2013 school year he has paid $6,000. (Id.) He pays $300 per month to the private school and whatever he can pay for the 2013-2014 school year. (T-234) The student’s father testified that his understanding is that he is responsible for paying based upon the contract. (T-237) He conceded that he waited until November of 2013 to file for tuition reimbursement for the 2012-2013 and 2013-2014 school years, ostensibly because he was hoping for an appropriate setting for the student. (T-238)

Assuming the Parent continued to pay $300.00 per month to the private school, it would take him (36.1) years to payoff the approximate $130,000 he has allegedly accumulated. ($300.00 x 12 = $3,600.00, $130,000.00/$3,600.00 = 36.1) Under the circumstances, it is hard to fathom how the private school and the Parents could reasonably believe that the Parents could ever pay the private school tuition.

It is a basic tenant of contract law that an offer must be so definite as to its material terms or require such definite terms in the acceptance that the performance to be rendered by each party is reasonably certain. (See Contracts 2nd Edition, Calamari & Perillo) The contract is void if the content of the agreement is unduly uncertain. (Id.) While “indefiniteness” in a contract may be cured by the subsequent conduct of the parties or by a subsequent agreement of the parties, there is no evidence in the record that such conduct or agreement by the parties has occurred in this case. (Id.) Indeed, the record reflects that the contract in this case is “fluid”, not definite. (Supra)

The student’s private school Enrollment Contract states in relevant part as follows:

The balance of the tuition will become due upon payment by the Department of Education or Student’s local Board of Education if different from the DOE.

If payment is not received by June 1, 2013, a new Payment Schedule may be put into place and the remaining balance may become due immediately.

Parent(s) represent that their financial status warrants direct prospective payment of tuition by the DOE or Student’s local Board of Education if different from the DOE. Upon request and as a condition of Student’s enrollment, Parent(s) will provide the School with necessary documentation in the form of Tax Returns, W-2 Wage Statements, Social Security Income

Statements or other documents reflecting actual income and resources. On the basis of this representation, the School has agreed to enroll the Student on the basis of the Payment Schedule set out above. (emphasis added) (P-M-5)

Taken as a whole, I find that the above clauses contemplate “direct prospective tuition payment by the DOE” to the private school on the basis on the Parents’ “financial status”, not because the student has been denied a FAPE as required by the IDEA. The clauses contemplate payment by the DOE and state that “If Payment is not received by June 1, 2013, a new Payment Schedule ‘may’ be put into place and the remaining balance may become due immediately.” (Id.) The payment schedule, under the agreement, only refers to the private school’s down payment, not the student’s tuition for the 2012-2013 school year. (Id.) It must be noted that there is also language in the contract that conflicts with these terms by stating:

If Parent(s) does/do not qualify financially for prospective payment of tuition or Parent(s) are/is denied payment by a final decision resolving their claim for prospective payment of tuition, Parents will remain responsible for tuition costs per the Enrollment Agreement and the balance of Student's tuition will be due immediately. (Id.)

It has long been held, and it is well settled in the law that in cases of doubt or ambiguity, a contract must be construed most strongly against the party who prepared it and favorably to a party who had no voice in the selection of its language. (See 4 Williston, Contracts, § 621 and 10 NY Jur, Contracts, § 223) Here, there is no doubt that the relevant contract was drafted by the private school. Accordingly, the ambiguity cited above concerning whether a new payment schedule is required, or whether the entire balance under the agreement is due, would be held against the private school, not the Parent, who as a consequence would escape any liability under the agreement.

I do not find credible evidence that the Parent is financially liable under the private school agreement. I am also troubled by the testimony indicating that there is a discussion between the private school Admission’s Director, the Parent and the Parent’s attorney to determine whether the Parents are entitled to “prospective funding.” (T-266-7) This evidences “collusion” between the private school and the Parent. It is well established that in fashioning relief, IHOs retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between Parents and private schools, or where there is evidence that the private school has artificially inflated its costs, because since the Parents have selected the unilateral placement, and their financial status is at issue the Parents have the burden of production and persuasion with respect to whether they are legally obligated for the student's tuition payments. (See Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. Feb. 1, 2011) - emphasis added)

There is no indication that the private school has taken any measures to collect the tuition by way of invoices sent to the Parents, or by threatening and/or pursuing legal action against them for the tuition owed. Under the circumstances, I find that the private school contract really contemplates payment of the private school tuition by the DOE and not the Parent. Thus, the Parent herein is actually “straw person” bring the instant claim on behalf of the private school, not himself.

The private school contract is ambiguous and indefinite in its terms. It has long been held that where the contents of an agreement are unduly uncertain, no contract is formed. (See Restatement, Second Contracts § 32, 1 Corbin § 95 and 1 Williston § 37)

As stated above, it is well settled that Parents who choose to unilaterally place their child at a private school without consent or referral by the school district do so at their own financial risk. (See Carter, 510 U.S. at 15, Burlington, 471 U.S. at 373-74 and Forest Grove, 129 S. Ct. at 2496) The United States Supreme Court in Burlington held that “retroactive reimbursement” of private educational expenses is appropriate as an available remedy under the IDEA. (See Burlington, 471 U.S. at pp. 370-71, Carter, 510 U.S. at 14-15, Gagliardo, 489 F.3d at 111 (2d Cir. 2007), explaining that parents who believe that their child has been denied a FAPE may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school], Diaz-Fonseca v. Commonwealth of Puerto Rico, 451 F.3d 13, 32, 40 (1st Cir. 2006), concluding that reimbursement under the IDEA allows parents to recover only actual, not anticipated, expenses for private school tuition and related expenses, Cerra, 427 F.3d at 192, noting the availability of "retroactive tuition reimbursement" under the IDEA, Muller v. Comm. on Special Educ. of East Islip, 145 F.3d 95, 106 (2d Cir. 1998), holding that compensation for "out of pocket expenses" was appropriate, Streck v. Bd. of Educ., 2009 WL 2163090, at * 2 (N.D.N.Y. July 17, 2009) and Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 299 (4th Cir. 2005))

While the IDEA provides that a court shall grant such relief that is determined to be appropriate (20 U.S.C. § 1415[i][2][C][iii], Forest Grove, 129 S. Ct. at 2488), the IDEA does not expressly provide for prospective payment of tuition costs. The IDEA does provide that “a court or a hearing officer may require the “school district” to reimburse the parents for the cost of “private school” enrollment if the court or hearing officer finds that the school district had not made a FAPE available to the child in a timely manner prior to that enrollment.” (See 20 U.S.C. § 1412[a][10][C][ii], 34 C.F.R. § 300.148[c] and SRO Nos.: 09-001, 07-032, 08-050 & 04-037)

There is no evidence in the hearing record indicating that, under the circumstances, the Parent has made any meaningful payments to the private school, or that the private school has ever sought payment of the student's tuition for the 2012-2013 school year from the Parent, or that it has any real viable intention of doing so. (See S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *8-*9 (S.D.N.Y. March 30, 2009]) Accordingly, I must find that the Parent cannot seek tuition reimbursement or prospective relief on behalf of the private school.

The evidence contained in the hearing record supports a finding that it was the private school, not the Parent, who incurred the financial burden associated with the student's education for the 2012-2013 school year. (See S.W., 2009 WL 857549, at *7*9, parent had no financial standing to sue for direct prospective payment to private placement where terms of enrollment contract absolved her of responsibility for paying tuition) However, the private school is not a party in this case and is, therefore, not entitled to relief under the IDEA. (Id.)

I do note; however, that the United States Court of Appeals for the Second Circuit has determined that under the pendency doctrine, school districts may be required to directly fund pendency placements (Bd. of Educ. v. Schutz, 290 F.3d 476, 482-84 [2d Cir. 2002] and Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d195, 200-01 (2d Cir. 2002) and that courts have awarded “prospective payment” to afford access to compensatory education. (See, e.g., Streck v. Bd. of Educ., 2008 WL 2229141 (2d Cir. May 30, 2008) and Draper v. Atlanta Indep. Sch. System, 518 F.3d 1275, 1286 (11th Cir.

2008) Moreover, a public agency may, under certain circumstances, place a student in an approved private school, however if it does so, the placement must be a public expense and meet state standards. (See 20 U.S.C. §1412[a][10][B]) ]) Where a Parent is seeking “prospective” payment for their unilateral placement, the Parent bears the burden of production and persuasion with respect to whether the Parent has the financial resources to front the tuition costs. (See Mr. & Mrs. A. v. New York City Dep’t of Educ., 2011 WL 321137 at *22 (S.D.N.Y. Feb. 1, 2011)

As previously stated, the Parent cannot assert a claim for the particular relief he has requested on behalf of the private school, which lacks standing under the IDEA to maintain a claim against the DOE in its own right. (See Emery, 432 F.3d at 299, Piedmont Behavioral Health Center LLC v. Stewart, 413 F.Supp. 2d 746, 755-56 (S.D. W.Va. 2006) and Malone v. Nielson, 474 F.3d 934, 937 [7th Cir. 2007]) The Parent might argue that he is entitled to direct funding under Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998). However, in Connors, the Court dismissed the Parents' claim for tuition and in dicta discussed the concept of “prospective” tuition payment after the Court made a finding that the school district conceded that it could not provide an appropriate education for the student and that the private placement could. (Id. at 34 F. Supp. 2d at 806) In the case at bar, the DOE did not concede that it failed to offer the student a FAPE for the 2012-2013 school year. Indeed the agency asserts that it offered the student a FAPE through a duly constituted CSE team that used a number of evaluative documents to develop the student’s IEP.

I find that the Parent in this case is not entitled to direct and/or prospective funding of tuition at the private school for all of the reasons stated herein. (See 20 U.S.C. § 1412[a][10][C][ii], 34 C.F.R. § 300.403[c], Burlington, 471 U.S. 359; Carter, 510 U.S. 7, A.A. v. Bd. of Educ., 196 F. Supp. 2d 259 (E.D.N.Y. 2002) and SRO Nos.: 09-001, 08050, 07-032 & 04-037)

NOW therefore, it is hereby

ORDERED that the Parent’s request for “prospective” tuition payment to the private school for the 2012-2013 school year, and for transportation and related services, must be DENIED. Dated: July 30, 2014

Edgar De Leon, Esq. gc

EDGAR DE LEON. ESQ.

Impartial Hearing Officer

EDL:gc

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO RECORD

# of

Number/Letter Title Dated For Pages

01 Due Process Response 11/26/13 DOE 03

02 IEP 03/13/12 DOE 14

03 FBA 03/13/12 DOE 01

04 BIP 03/13/12 DOE 01

05 Meeting Minutes 03/13/12 DOE 01

06 Private School Progress Report 12/2011 DOE 16

07 FNR 07/02/12 DOE 01

08 Nickerson Packet 08/12/12 DOE 33

A Due Process Complaint 11/14/13 PARENT 10

B Report 07/2010 PARENT 12

C Letter from Parent to CSE 07/26/12 PARENT 03

D *not received in evidence*

E Email from Parent to CSE 08-10/2013 PARENT 09

F *not received in evidence*

G Amendment to IEP 10/08/13 PARENT 14

H Email - Parent to Private School 10/16/13 PARENT 01

I Curriculum undated PARENT 16

J Progress Report 01/2014 PARENT 10

K Progress Report 06/2013 PARENT 11

L Progress Report 12/2012 PARENT 12

M Contract for 2012-2013 PARENT 06

N Affidavit - Attendance Records 2012-2013 PARENT 05

O Class Schedule 2012-2013 PARENT 01

P Contract for 2013-2014 PARENT 06

Q Affidavit - Attendance Records 2013-2014 PARENT 03

R Class Schedule 2013-2014 PARENT 01

S 2012 Taxes for Mother 2012 PARENT 21

T Application Sheet 07/12/10 PARENT 04

U 2012 Taxes for Father 2012 PARENT 13

V Amended 2012 Tax Return 2012 PARENT 15

W 2012 Taxes - 2012 PARENT 21