New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 8, 2011

November 30, 2011

December 21, 2012

Actual Record Closed Date: February 1, 2012

Hearing Officer: Edgar De Leon, Esq.

Corrected

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

Dr. District Representative DOE 11/08/11 11/30/11 12/21/11

(T) Assistant Principal DOE 11/08/11

(T) School DOE 11/08/11

(T) School DOE 11/08/11 Advocate PARENT 11/08/11 11/30/11 12/21/11

Mother PARENT 11/08/11 11/30/11 12/21/11

(T) Teacher PARENT 11/30/11

(T) Educational Director PARENT 11/30/11

(T) PARENT 12/21/11

On August 22, 2011, 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), concerning a dispute involving the special education program of an ( ) year old student attending a school and the New York City Department of Education (“DOE”) District . After adjournments were granted on consent of for cause, the hearing was held on November 8, 2011, November 30, 2011 and December 21, 2011. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

This case involves a dispute concerning the student’s 2010-2011 school year. (See Due Process Complaint - “DPC”) The Parent alleges that the student’s Committee on Special Education (“CSE”) meeting produced an Individualized Education Program (“IEP”) for the student that is procedurally and substantively flawed. (Id.) The DOE has recommended a “ ” placement for the student and the Parent believes that he needs placement in a “ setting. (Id.) The Parent further alleges that the student’s Behavioral Intervention Plan (“BIP”) is insufficient. (Id.) The Parent states that she received a Final Notice of Recommendation (“FNR”) from the DOE on June 15, 2010, visited the recommended public school and rejected the same in a letter to the agency. (Id.) The Parent subsequently placed the student in a school and is seeking an order that the DOE “…direct pay her son’s tuition to [ school name] and/or reimburse her for her son’s tuition costs at [ school name] for the 2010-2011 school year.” (Id.) The Parent also request school bus transportation for the student to and from the school.

THE DOE’S CASE

The DOE did not file a response to the Parent’s Due Process Complaint (“DPC”), or make an opening statement. (T-14-5) The agency called ( ) witnesses to testify on its behalf and submitted ( ) documents in evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows.

The DOE’s first witness has never met the student. (T-16) She is the Assistant Principal at the DOE recommended school. (T-17) She stated that the student would have been placed in a program had he attended her school. (T-20-1) The students in the class were between the ages of ( ) to ( ) and classified as having “ .” (T-21) The student would have had a certified special education teacher and would have received all of his mandated related services. (T-21-2) The set of the school building is “general education” and her school is on a separate floor. (T-23) The maximum of students in their program is (70). (Id.) The student would have been placed in the grade. (Id.) None of the student’s in the recommended class had a paraprofessional assigned to them. (T-25) The student would have a paraprofessional assigned to him to help him with his behavior and academics. (Id.) The program is a structured learning environment. (T-26) In addition to the student’s Behavior Intervention Plan (“BIP”) on his Individualized Education Program (“IEP”), they would have developed another one for the student. (T-27) They use “ ” and everything is done through picture cues. (Id.) Their program is a District program. (T-28)

The witness stated that they have a full time at the public school. (T-29) They also have a Parent coordinator and offer at least workshops a month. (T-30) They have a full time inclusion program where they share a cafeteria, a gym and have combined assemblies. (T-31) They also have some staff members that have training in ABA. (T-32) She is familiar with ABA, but is not certified in it. (Id.) ABA is most effective for very young children and doesn’t really suit the realness of school life. (T-

33) All District programs use frequency data. (T-34) The students are grouped based on age alone, rather than skill level. (Id.)

The witness stated that the students’ instruction is differentiated. (T-35) Academics range from to grade. (Id.) Functional life skills, social skills and leisure skills are all imbedded into the curriculum. (T-35-6) Usually, related services are given one at a time. (T-37) A lot of their push into the classroom. (Id.) The school follows the New York State alternative assessment. (T-38) They use an assessment called “ ” which is wrapped around the common core standards. (Id.) The Parent visited the school for about a half hour at the end of the 2009-2010 school year. (T-39)

On cross examination, the witness testified that their program is located in another school for the summer. (T-40) She had the student’s IEP and referral when the Parent visited the program. (T-43 & D-2, D-4) Counseling would have been available for the student in July of 2010. (T-46) All of the student’s related services would have been available for him in July and September. (Id.) They have , a full-time counselor and a full-time and . (T-47) One of the classes with is a full-time inclusion class. (Id.) For the 2010-2011 school year they used the standard-based curriculum modified for their students. (T-48) They use a program called “Unique.” (Id.) There was no redirect examination of the student. (T-49)

The DOE’s second witness participated in a review meeting for the student. (T-

50) She also tested the student a couple of years ago. (T-51) She is a and has worked for the DOE over ( ) years. (T-53) She participated in a Committee on Special Education (“CSE”) meeting for the student on March 4, 2010. (T-54) The student’s school and contributed the student’s IEP goals. (T-56-7) The student’s school provides some related services but not all of them. (T-60) The student’s school does not provide or counseling. (Id.) They believed that the student would benefit from a group instruction rather than a instruction full-time. (T-64)

On cross examination, the witness testified that she does not recall if the general education teacher at the CSE was teaching. (T-67) There was no at the meeting. (Id.) Neither was there a at the meeting. (T-68) They initiated counseling because the Parent was very eager to initiate it. (T-69) The student’s special education teacher did not have a license. (T-70) They reviewed the student’s classroom observation. (T-71) There was no substantive testimony developed during the witnesses’ re-direct examination. (T-73) There was no re-cross examination of the witness. (Id.)

The DOE’s third and final witness conducted the student’s observation. (T-74) She is a certified . (T-76) She conducted a classroom observation of the student on February 23, 2010. (T-77) She saw school classes at the school but was “supervised” during her visit. (T-78) She did not see the student in a group activity. (T-

79) The student is an child with who followed the but needed . (T-80) She has conducted evaluations of students with . (Id.) She does not believe that a student is appropriate because children need per and . (T-81)

On cross examination, the witness testified that she had an opportunity to speak with the student’s classroom teacher. (T-82) The student’s teacher said that the student had and that his had . (Id.) However, when the student’s occur, they can be and . (Id.) She observed an entire session that was . (T-83) She has only seen one individual working with one child in the classroom. (T-85) There was no re-direct examination of the witness. (Id.)

THE PARENT’S CASE

The Parent argues that the student’s recommended placement in a setting for the 2010-2011 school year was too large. (DPC) The student requires a student ratio because of, among other reason, his . (Id.) Accordingly, the Parent placed the student in the school for the 2010-2011 school year.

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

The Parent’s first witness was the student’s teacher from September 2008 to December of 2010. (T-94) She has been trained in applied and behavior. (T-96) In the summer of 2010, she accompanied the Parent to a school observation. (T-98) The date of the visit was June 24, 2010. (T-99) The student is a who presents with delays and has a long history of displaying and including . (Id.) The student has engaged in , , and has during instructional time. (T-100) The student was receiving behavioral intervention at the school and was showing progress. (Id.)

The witness stated that she was very concerned with the school’s ability to appropriately and adequately meet the student’s needs. (T-102) She had the impression that the school personal was not properly qualified or trained to address the student’s behaviors. (Id.) She was taken to speak with the public school social worker. (T-105) She was told that the public school personal did not know what “ ” was and there was a lack of individualized visual support. (T-109) She was also told that instruction at the public school was about “ .” (T-110) They also told her that they introduced new skills in a group setting which the student had with. (T-111) The public school staff was also not familiar with the “FRA Reading for Mastery” program that the student had success with. (Id.) The student’s opportunity to practice play and social skills was limited to about ( ) minutes a day, which would not have been enough for the student. (T-112) She told the Parent that she did not think the public school was appropriate for the student. (T-112-3)

On cross examination, the witness testified that she saw a general classroom schedule which had no individual schedules for the students. (T-117) It is her understanding that the use of schedules is a part of the TEACCH model. (Id.) She was told that the students did not have individual schedules, individual token boards, rule visuals or visuals of coping strategies. (T-118)

The witness stated that delays in social skills are part of an . (T-119-20) The student was functioning . (T-120) As is common with children on the , the student’s skills were and he may . (Id.) The public school classroom staff did not work on , only the during his or her sessions. (T-121-2) The student also has in the area of and the public school did not follow a curriculum for skills instruction. (T-124) She did not ask the school how they assessed the students and no one mentioned the New York State assessments. (T-125) She does not recall if she had the student’s IEP or his BIP when she visited the public school, but she was very familiar with those documents. (Id.)

The witness stated that the school visit lasted over one hour. (T-127) She did not see any differentiation of instruction at the public school. (Id.) She just saw a . (Id.) She was in the classroom for about ( ) to ( ) minutes. (T-129) There was no re-direct examination of the witness. (T-132)

The Parent’s second witness was the educational director of the student’s school. (T-134) She formally worked at the DOE from 1986 to 2001 as a general education inclusion teacher. (T-136) The school is a small school for children on the with a one to one teacher to student ratio. (T-137) They incorporate and in with . (Id.) In the 2010-2011 school year, she believes there were ( ) teachers and ( ) students total staff with ( ) students with range. (T-138) Some of the students were ( ) by the end of the year. (Id.)

The witness stated that some of the students were grouped in sets of ( ) according to age with . (T-139) The staffing ratio in the classroom is always to and there was a teaching assistant and for every classroom. (Id.) All of their and have a master’s degree in their related field. (Id.) The head teacher has a master’s in special education. (Id.) They also have a full time . (T-140) They had ( ) classrooms and ( ) . (Id.)

The witness stated that the student had been moving on to more advanced academics. (T-141) They had also seen a in . (Id.) They start off with ABC data which shows a functional assessment to draft the student’s behavior plan. (T-142) They also use the . (Id.) The student did not need the school for the 2010-2011 school year because it was a transition year to move to a environment. (T-143) They did their research to find the student a new school by visiting many other and public schools. (T-144) The student needed support and because of his , and . (T-146) The student had an individual reinforcement plan. (T-147) The student received all of his related services during the 2010-2011 school year. (T-148) The school also has a parent training program. (T-148-9) The visited the student’s house multiple times throughout the year to help him with and . (T-149) From a behavioral perspective they did not need to go to the student’s home. (T-149-50) The witness stated that the student was not ready for a class. (T-150)

On cross examination, the witness testified that she worked directly with the student but not on a daily basis. (T-152) She worked with the student for at least sessions per week. (Id.) The student first attended the school in the 2005-2006 school year. (T-154) The student was in grade level for the 2010-2011 school year. (T-154-5) At the school, the student did not receive . (T-157) The student had time to play and did engage in group settings with a ratio. (Id.) There were typical peers in the located on the floor above the school. (Id.) The student is able to in the and he wants to and with whom he at . (T-159) A “ paraprofessional” would be there to support the student, but would not be teaching him on a ratio. (T-162) There was no re-direct examination of the witness. (T-163)

The Parent’s third witness has been treating the student at the school since 2005. (T-171) She is a licensed New York State . (T-173) The student needed to work on his , , his , his and his . (T-174) She worked with the student in the and when necessary she would go into the classroom. (T-176) She worked with the student daily for at least ( ) minutes to an and the student also had another provider. (T-177) The student has that they worked on from a . (T-178) The student as other kids. (T-178-9)

The witness stated that they for the student and gave him . (T-179) The student needs every day to make and . (T-180) If not, you would see the student . (Id.) During the 2010-2011 school year, the student mastered some and made . (T-181) The student in his ( year old) and his and ( year old). (T-182)

On cross examination, the witness testified that everyone has a role in addressing the student’s . (T-183-4) There is no at the school. (T-190) She believes that is necessary for the student especially for his . (T-191) There was no re-direct examination of the witness. (T-192)

The Parent’s fourth and final witness is the student’s mother. (T-193) She stated that she received answer during her visit to the public school that indicated to her they did not have an answer for the student’s behavior. (T-195) She was told that the student would have to be taken out of the public school for his related services. (T-197-8) She was not happy with the layout of the public school classroom. (T-199) She spoke with the student’s proposed teacher. (T-200) The student does not work with the teaching method they have at the public school. (Id.)

The witness stated that she rejected the public school for the 2010-2011 school year, but did not pay tuition at the school. (T-201) She and her husband earn about per year. (T-201-2) She receives for of her , and . (T-202) There is certain help that the student needs with being . (T-204) The student speaks but has himself. (T-205) The school uses and with the student and he has an on his . (Id.)

On cross examination, the witness testified that she brought the student’s IEP with her when she visited the public school. (T-209) The public school personal did not ask to see it and she does not remember if the asked to see it. (T-210) She was told that the student would not get all of his services, but that they do some and . (T-211) She spoke to one of the paraprofessionals about the public school teacher. (T-212) She also spoke to the teacher for a very brief time. (T-213) She does not remember being told that there was for the students at certain times. (Id.)

The witness stated that the student with . (T-215) At home the student with kids of different ages. (Id.) The student has never attended a public school. (T-

218) She does not know what she would do to pay the school if she did not prevail at this hearing. (T-220) The student has always had on his IEP, but she is not sure if he is receiving now at the school. (T-221)

On re-direct examination, the witness testified that if she loses this case she still owes the money to the school. (T-222) On re-cross examination, she testified that that the student’s related services have to be one-to-one. (T-223) Other children would the student. (T-224) Even with a paraprofessional and a teacher, the student needed a lot of . (T-225) The student has been in special education since he was years old. (T-226) A “ paraprofessional” is just a “ ” for the student. (T-228) She is not aware of the training that a paraprofessional in a program for children receives. (T-230)

FINDINGS OF FACTS & DECISION

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 (2005)) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537) As such, in this case, the Parents as the party seeking relief, have the burden of persuasion to demonstrate that the student’s school placement for the 2010-2011 school year was appropriate.

The DOE may be required to reimburse parents for their expenditures for educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2nd Cir. 2005))

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 (2nd Cir. 2000)) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 (1982)) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)(1))

The parent bears the burden of showing that the school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The parents must show that the school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370, SRO No. 94-20) The school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the school employ certified special education teachers, or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]).

Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (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, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). 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. (Application of a Child with a Disability, Appeal No. 04-049).

The DOE may be required to reimburse Parents for their expenditures for educational services obtained for a student by his or her parents, if the services offered by the DOE 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. (Burlington, 471 U.S. at 370-71, 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 at 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. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

It is well settled that parents who choose to unilaterally place their child at a 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 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 school and seek retroactive reimbursement for the cost of the 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 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 “ 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) Here, the DOE made its placement offer to the Parent on or about June 15, 2010 for the September 2010-2011 school term. (D-2) The Parent visited the recommended school on June 28, 2010. (Id. & T-195-200)

The hearing record reflects that for the 2010-2011 school year, the student's Parent entered into an enrollment contract with the school applicable to the 20102011 school year, in which the Parent agreed to “assume, jointly and severally, complete financial responsibility for the enrollment of the student in school for the 2010-2011 school year and agree to pay when due the Annual Tuition and Fees, as detailed below.” (P-G) The enrollment contract further provides for the payment of a “deposit” and a “payment plan.” (Id.) However, those portions of the enrollment contract calling for a deposit and outlining a payment schedule were left blank. (Id.) Additionally, the Parent conceded that she did not pay tuition at the school. (T-201) She and her husband earn about per year and tuition at the school was $89,000.00 for the 2010-2011 school year. (T-201-2 & P-G) Under the circumstances, it does not appear that the Parent was able to pay the tuition at the school when the enrollment contract was signed.

During the impartial hearing, the Parent testified that she does not know what she would do to pay the school if she did not prevail at the hearing, but that she would still owe the money if she loses the case. (T-220 & 222) There is no evidence in the record that the school conferred any scholarship or other form of financial aid upon the student for the 2010-2011 school year.

There is also no evidence in the hearing record indicating that the Parent made any payments to the school or that the school has ever sought payment of the student's tuition for the 2010-2011 school year from the Parent, or that it has any 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]) The enrollment contract states that the school can suspend or terminate the student’s enrollment for non-payment or untimely payment of tuition, but there is no evidence in the record that the school ever pursued this remedy. (P-G)

Because the hearing record demonstrates that the Parent has not paid any tuition or incurred out-of-pocket expenses, under the circumstances I find that the parent does not have standing to seek tuition reimbursement or retrospective relief on behalf of the school.

With respect to the dismissal of the Parent's claim for direct funding to the school for the 2010-2011 school year, the evidence contained in the hearing record supports a finding that it was the school, not the Parent, who incurred the financial burden associated with the student's education for the 2010-2011 school year. (See S.W., 2009 WL 857549, at *7-*9, parent had no financial standing to sue for direct retrospective payment to placement where terms of enrollment contract absolved her of responsibility for paying tuition) However, the school is not a party in this case and is, therefore, not entitled to relief under the IDEA. (Id.)

The Parent cannot assert a claim for the particular relief she has requested on behalf of a entity that lacks standing under the IDEA to maintain a claim against a school district 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 has also requested 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 placement could. (Id. at 34 F. Supp. 2d at 806)

In the case at bar, the DOE has not conceded that it failed to offer the student a FAPE for the 2010-2011 school year, or that the Parent's unilateral placement at the school was appropriate for the student. What’s more, the Parent’s request for tuition payment by the DOE is for the 2010-2011 school year, not the current school year or a future school year. Based upon the foregoing, I find that the Parent is not entitled to “direct” and/or “prospective” funding of tuition at the school for the 2010-2011 school year. (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, 08-050, 07-032 & 04-037)

A Parent is not precluded, as a matter of law, from obtaining reimbursement for the cost of services which were provided prior to the date when the Parent initiated due process proceedings. (See Northeast Central School District v. Sobol, 78 NY 2d 598

(1992) However, the timeliness of a claim for tuition reimbursement is one of the elements which may be considered in determining whether the Parent's claim is supported by equitable considerations. (See Bernardsville Board of Education v. J.H. et al., 42 F 3d 149 (3d Cir., 1994) and SRO No.: 95-25) Prompt resort to due process proceeding must be made, so that school authorities have an opportunity to correct mistakes or omissions in providing students with a FAPE. The timeliness of a Parent’s claim for reimbursement is one of the elements which may be considered in determining whether the Parent’s claim is supported by equitable considerations. (See Phillips v. Board of Educ., 949 F. Supp. 1108 (S.D. N.Y., 1987) and SRO No. 95-25) Here, the Parent filed her request for tuition payment by the DOE on or about July 11, 2011, at close to the start of the 2011-2012 school year. Throughout the entire 2010-2011 school year, the Parent did not seek tuition payment from the DOE, did not make payments to the school and the school did not suspend or terminate the student’s enrollment or pursue any claim against the Parent for non-payment.

For all of the reasons stated herein, I find that the Parent cannot prevail in her request for either “tuition reimbursement” or “direct/prospective” tuition payments to the school for the 2010-2011 school year.

NOW therefore, it is hereby

ORDERED that the Parent’s request for either “tuition reimbursement” or “direct/prospective” tuition payments to the school for the 2010-2011 school year is DENIED. Dated: February 16, 2012 Corrected Date: March 27, 2012 (Correction made to Evidence List)

EDGAR DE LEON, ESQ.

Impartial Hearing Officer ED: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

Number/Letter Title Dated For # of Pages

01 Impartial Hearing Request 07/11/11 DOE 05

02 Final Notice of Recommendation 07/06/10 DOE 01

03 Classroom Observation 02/23/10 DOE 02

04 IEP 03/04/10 DOE 19

A Impartial Hearing Request 07/11/11 PARENT 06

B School Description undated PARENT 04

C Mission Statement undated PARENT 01

D 10-Day Notice Letter 08/18/10 PARENT 02

E Placement Letter 06/15/10 PARENT 02

F Enrollment Form 09/08/10 PARENT 03

G Enrollment Contract 09/2010 PARENT 03

H School Affidavit 09/23/11 PARENT 01

I Attendance Record 2010-2011 PARENT 01

J School Calendar 2010-2011 PARENT 01

K Daily Classroom 2010-2011 PARENT 01

L Class Profile 2010-2011 PARENT 01

M Educational Progress Report 06/14/10 PARENT 06

N Educational Progress Report 12/17/10 PARENT 07

N-1 Educational Progress Report 06/10/11 PARENT 09

O School IEP 2010-2011 PARENT 18

P Report 12/22/10 PARENT 12

Q Assessment 2010-2011 PARENT 03

R Progress 12/15/10 PARENT 02

Report

S 06/07/10 PARENT 15

Evaluation

T 06/01/11 PARENT 13

Evaluation

U BIP 12/20/10 PARENT 08

V Behavior Plan and 01/07/11 PARENT 04

Token Economy

W Chart 2010-2011 PARENT 01

X Chart 2010-2011 PARENT 03

Y Chart 2010-2011 PARENT 03

Z Chart 2010-2011 PARENT 03

AA Accepting Number Chart 2010-2011 PARENT 02

BB Elopement Chart 2010-2011 PARENT 02

CC Contact 2010-2011 PARENT 07

Chart

DD Chart 2010-2011 PARENT 05

EE Skills Curriculum 2010-2011 PARENT 01

FF 2010-2011 PARENT 01

GG Social Studies Curriculum 2010-2011 PARENT 05

HH Program Mand Training 2010-2011 PARENT 06

II 2010-2011 PARENT 01

JJ Community Skills & Safety 2010-2011 PARENT 03

KK Morning Journal 2010-2011 PARENT 03

LL Expanding Food Repertoire 2010-2011 PARENT 02

MM Hall Pass 2010-2011 PARENT 01

NN Activity Schedule 2010-2011 PARENT 02

OO Classroom Observation 2010-2011 PARENT 02

PP Parent Conference Notes 2010-2011 PARENT 01

QQ Correspondence Log 2010-2011 PARENT 03

RR IEP 03/04/10 PARENT 19

SS School Provisional Chart undated PARENT 02

TT Tax Returns 2010 PARENT 02