NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 22, 2014
August 4, 2014
September 17, 2014
October 29, 2014
November 6, 2014
March 3, 3015
Actual Record Closed Date: April 24, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 22, 2014
Esq., Attorney (Via Telephone) — Parents
CSE District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 4, 2014
Esq., Attorney — Parents
Esq., Attorney — Parents
District Representative, — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 17,
2014
Esq., Attorney — Parents
Esq., Attorney — Parents
Mother — Parents
District Representative, — DOE
Teacher Assigned (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 29, 2014
Esq., Attorney — Parents
Mother — Parents
Program Director (Via Telephone) — Parents
District Representative, — DOE
School Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 6, 2014
Esq., Attorney — Parents
Mother — Parents
District Representative, — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 3, 2015
Esq., Attorney — Parents
Mother — Parents
District Representative, — DOE
Psychologist (Via Telephone) — DOE
Background and Positions of the Parties — DOE
On June 6, 2014, following a recusal by another Impartial Hearing Officer (IHO), I was appointed by the New York City Department of Education (DOE) as Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act (IDEIA), 20 U.S.C. 1415 (b) (2) as well as Section 504 of the Rehabilitation Act, 29 U.S.C. 794 in the matter of I am certified as an Impartial Hearing Officer by the University of the State of New York, Education Department. The hearing took place on the following dates: July 22, 2014 (prehearing conference), August 4, 2014, September 17, 2014, October 29, 2014, November 6, 2014 and March 5, 2015. Extensions of the compliance date were granted due to unavailability of witnesses, settlement negotiations as well as to allow time for receipt of the final transcript, writing and submission of closing documents by both parties and then this IHO rendering a decision. I issued an Interim Order, dated September 9, 2014, denying the DOE’s Motion to Dismiss this matter. IHO Exhibit I.
This is a dispute with regard to the 2012-13 school year. The position of the Department of Education (DOE) is that the program offered by the DOE in its Individualized Education Program (IEP), in which the DOE recommended a class was appropriate and the placement, pursuant to second circuit case of RE v. New Y ork City D epartm ent of Education, 694 F.3d 184, the DOE had no obligation to defend its placement under the circumstances of this case. The DOE’s position is also that the parents have not met their burden of showing that the unilateral placement at the School ( ) appropriately addresses ’s learning needs and that the equities here favor the DOE. IHO Exhibit II.
The parent position is that the DOE offered an inappropriate program, pretty much the same as was offered before, but in each instance, there was an impartial hearing and the IHO found the program inappropriate while finding the School appropriate.
Once again, without new evaluations, the DOE added but otherwise, the parent view is, the DOE recommended the same inappropriate program. The parent view is also that the school continues to be appropriate, the equities favor the parents and therefore that this IHO should order reimbursement for the costs of ’s attendance at , as had been ordered by the prior two IHOs. IHO Exhibit III.
Findings of Fact and Conclusions of Law
The obligation of the school district is to provide a disabled child with a Free and Appropriate Education (FAPE). With regard to how much benefit is required for the educational program to be considered as appropriate, the US Supreme Court concluded that a school district is not required to “maximize each child’s potential commensurate with the opportunity provided other children.” B oard of Education v. Rowley, 458 U.S.
176, at 198. The third circuit, however, has held that an IEP must provide “meaningful educational benefit.” T.R. ex. Rel. N.R. v. Kingwood Township Bd. Of Educ. 205 F.3d 572, 577 (3d Cir. 2000). In Rowley, the case involved a student who was progressing nicely in regular education classes. With regard to a student attending special education classes, however, in Deal v. Hamilton County B oard of Education, 392 F.3d 840 (2004), at 864, the sixth circuit court of appeals concluded that “At the very least, the intent of Congress appears to have been to require a program providing a meaningful benefit toward the goal of self-sufficiency, especially where self-sufficiency is a realistic goal for a particular child.” It should be noted that this “Deal Standard “ of what constitutes FAPE was cited without comment in a second circuit case, A .D. v. M.D. individually and on behalf of E.D., Plaintiffs v. The B oard of Education of the City School District of the City of New Y ork, 690 F. Supp. 2d 193 (2009), at 217. Also, further clarifying how much benefit is required to achieve FAPE, in Cerra v. Paw ling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing W alczak, 142 F.3d at 130 and M rs. B., 103 F.3d at 1121, explained that a district fulfills its substantive obligations if its IEP leads to progress and not regression and a district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan.
The legal standard for funding cases such as this one is well established, based upon School Committee of Burlington v. Departm ent of Education of M assachusetts, 471 U.S. 359, 1985. The analysis involves three prongs. The first prong is whether the public school provided a Free and Appropriate Education (FAPE). If it did, the inquiry ends here; as the school district has met its burden. Prong 2 requires the determination of whether the program selected by the parent is appropriate. Then, there is Prong 3, do the equitable considerations support the parent’s claim? See also Florence County Sch. Dist.
Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13 (1993).
With regard to the burden of proof in New York State, the school district has the burden of proof, including the burden of persuasion, in any impartial special education due process hearing. The exception to this is that “a parent or person in parental relation seeking tuition reimbursement for a unilateral placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” 4404 of the Education Law (Amended by Laws of New York, 2007, Chapter 583.)
In Frank G., 459 F.3d at 112, the second circuit explained that to “qualify for reimbursement under Individuals with Disabilities Education Act (IDEA), parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only show 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.”
In R.B. and H.Z. on behalf of C.Z. v. New Y ork City Department of Education and Joel Klein, 713 F. Supp. 2d 235, the U.S. District Court for the Southern District of New York cited Gagliardo, 489 F.3d at 115, in which the Second Circuit set forth that “A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child.”
Tribunals should be careful about delineating what specifically a program should look like, or as stated by the United States Supreme Court, “courts must be careful to avoid imposing their view of preferable educational methods . . .” Rowley, 458 U.S. at
207-08.
The criteria for deprivation of FAPE based upon procedural deficiencies are that the deficiencies (a) impeded the students’ rights to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE, or (c) caused a deprivation of educational benefits. 20 USC 1415 [f][3][E][ii]. As stated in Matrejek v. Brewster Cent. School Dist. 471 F. Supp. 2d 415, 419 [SDNY 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008], procedural flaws do not automatically require a finding of a denial of a FAPE. Only procedural inadequacies that cause substantive harm to the child or his parents – meaning that they individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent’s participation in the creation or formulation of the IEP, constitute denial of FAPE.
The second circuit has explained “that retrospective testimony that the school would have provided additional services beyond those listed in the IEP may not be considered in a B urlington/Carter proceeding.” R.E. v. N.Y .V . Dep’t of Educ., 694 F.3d 167, 2012 WL 4125833, at 12 (2d Cir. Sept. 20, 2012).
Basing its decision on R.E., in R.C. ex re. M .C. v. Byram Hills School Dist., 2012 WL 5862736 (S.D. New York Nov. 16, 2012), at 11, District Judge Daniels wrote the following with regard to the effect of a parent rejecting an IEP:
Given the Second Circuit’s recent pronouncement that a school district may not rely on evidence that a child would have had a specific teacher or specific aide to support an otherwise deficient IEP, it would be inconsistent to require evidence of the actual classroom a student would be placed in where the parent rejected an IEP before the student’s classroom arrangements were even made.
As is clear from another case, however, the burden remains on the school district “to prove that the proposed placement was adequate.” B.R. ex rel. K.O. v. N.Y .C. Dep’t of Educ., F. Supp. 2d, 2012 WL 6691046 (S.D. New York Dec. 26, 2012), at 7.
R.E. reaffirmed the Second Circuit’s prior holding in T.Y ., that a school district must “conform to the program offered in the IEP.” R.E., 694 F.3d 167, at 192. As stated in T.Y ., 584 F.3d at 420, school districts do not “have carte blanche to assign a child to a school that cannot satisfy the IEP’s requirements.”
In another case, K.L. v. NY City DOE, 2012 WL 4017822 (SDNY), at 13, the court reiterated the conclusions of T Y , at 419, that the federal regulations “only require that the parents have an opportunity to participate with respect to ‘the general type of educational program in which the child is placed,’ not the specific brick and mortar site.”
In K.L.v. NYC DOE, 530 Fed. Appx. 81, at 87, quoting from its earlier decision in RE, the Second Circuit explained that the “’appropriate inquiry is into the nature of the program actually offered in the written plan,’ not a retrospective assessment of how that plan would have been executed.”
In a case in which a mother testified based on her single half hour visit to a school that her child would have been placed with higher functioning students, and there was evidence to the contrary, the judge concluded that her testimony was not sufficient “to warrant a finding that … [the] IEP was not ‘reasonably calculated’ to confer educational benefits.” The opinion continued:
… just as the Department may not rely on retrospective testimony concerning the services that F.L. would have received had the parents accepted the proposed placement, the parents cannot rely on observations of a particular teacher or classroom because there is no guarantee that F.L. would have been placed in the classroom visited…
F.L. v. NYC DOE, WL 4891748 (SDNY), at 14.
In another decision, the Second Circuit explained as follows, quoting again from its RE
Decision:
…”[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement, “ and “[a]
suggestion that some students are underserved” at a particular placement “cannot overcome the particularly important deference that we afford the SRO’s assessment of the plan’s substantive adequacy.” …Rather, the appropriate forum for such a claim is “a later proceeding” to show that the child was denied a free and appropriate public education “because necessary services include in the IEP were not provided in practice.” …
F.L. v. New York City Dept. of Educ., 2014 WL 53264 (2d Cir. Jan. 8,
2014), at 6.
An SRO decision summarized the view that when parents reject a program and placement in advance, determination of whether the offered program was appropriate may be made on the basis of the IEP alone:
The sufficiency of a district’s offered program is to be determined on the basis of the IEP itself (see R.E. v. New York City Dept. of Educ., 785 F. Supp. 2d 28, 42
[SDNY 2011]. If it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of FAPE due to failure to implement it (id., see also Grim, 346 F.3d at 381-382 [holding that the district was not liable for a denial of a FAPE where the challenged IEP was determined appropriate, but the parents chose not to avail themselves of the public school program]).
SRO 12-10.
In Grim v. Rhiinebeck, 346 F.3d 377, 381-382 (2d Cir. 2003), the situation was that the parents had removed their child in advance. The Second Circuit analyzed the appropriateness of the program offered by the school district on the basis of the IEPs alone.
In D.C. v. New York City D.O.E., 12 Civ. 1394, 3/25/13, at 43, the Court held that in cases “involving implementation of the IEP, testimony from the Department is permissible, but it must be limited to information that was reasonably known to the parties at the time of the placement decision.” Also, the Judge held with regard to inadmissibility of evidence by the Department of Education, “… only testimony regarding events that occurred after the unilateral placement decision was made [are inadmissible] or testimony of information that alters the representations that were made to the parent.” Id. at 42. Thus, once a unilateral placement has occurred, what occurred afterwards is not only irrelevant to the legal conclusions but should be inadmissible as evidence.
In a case where the parent did not visit the proposed placement, as the parent enrolled the student in private school before the offered public school class was available to visit, a district court ruled, based upon RE, that the school district has no obligation to offer evidence about the classroom that the student would have attended. Judge Miriam
Goldman Cedarbaum wrote, “How [the student] would have fared in the classroom in the [public school classroom] and whether his IEP would have been adequately implemented in that classroom is a matter of speculation.” M.O. and G.O. individually and on behalf of D.O. v. N.Y.C.D.O.E., 63 IDELR 37, 12 Civ. 4619 (MGC) (SDNY March 27, 2014).
In another case where the parent did visit the proposed public school placement site and was told that there was no space for the student in the type of class proposed on the IEP, the parent was told that the student would attend a different type of class from that on the IEP and the district did not respond to letters from the parent about the lack of availability of the type of class proposed on the IEP at the placement site, this fact pattern served to undercut the claim by the NYC DOE that the student would have received the type of placement offered on the IEP at the proposed placement site. The DOE had not presented contrary evidence. Judge Analisa Torres, quoted from R.E.: “The [DOE] may select from the specific school without the advice of the parent … so long as it conforms to the program offered in the IEP.” R.E., 694 F.3d at 191-192 (citing T.Y., 584 F.3de at 420). Scott on behalf of CS v. NYCDOE, 63 IDELR 43, 12 Civ. 3558 (AT) (SDNY March 25, 2014).
Here we have a situation where the district once again made the same recommendation as in the two recent school years, although the district added .
In the previous two instances, there had been impartial hearings with findings that the program recommended was not appropriate and that program was appropriate.
Exhibit X-12-13 with regard to 2010-11 and Exhibit W with regard to 2009-2010. (With regard to 2011-12, Attorney explained that while a hearing was requested with regard to 2011-12, it did not go forward, based on his recollection, due to statute of limitations considerations; therefore there was no hearing held with regard to 2011-12. Tr.
477.) This recommending of the same program was done without any new evaluations other than a classroom observation (which was acknowledged by the DOE ’s psychologist, Tr. 641-643, 652-653; there was a psychoeducational referred to by psychologist that occurred before the IEP meeting, but it was conducted back in February, 2010, Tr. 652-653 ). The DOE’s program recommended was contrary to the views of the program director at , where has been attending, who testified that she advised the IEP Team that the program they were recommending s would not be effective for Tr. 413-414. The parent testified that she explained to the team that a class of was too large and yet there was no discussion at the conference regarding why a class would have been appropriate. 502-503, 507. The student has a classification of , Exhibit 6-1, and has . The IEP notes that the level of this year old is at the beginning level and he is just . Ibid. The IEP speaks of needing to develop and to get “ ” for working in this area. Exhibit
6, 6-7. The assigned teacher on the IEP Team explained that the team recommended a class, which was “ ” Tr. 169. But then asked if would benefit from a smaller class than , she responded that “ ” that he could benefit from a more . Tr. 170.
The problem is that it is unclear on what the DOE relied in making a recommendation that the parent and personnel from the school the student was attending believed was not sufficiently intensive, due to ’s . Tr. 412-
414, 502-503.
With being an ,
there were concerns raised by his parents regarding that that his requirements would not have been accommodated and also that he would have potentially been a bullied victim in a place where he would have been the only and wear there would have been no other students resembling him. Exhibit III. These are concerns raised by the parents at the hearing and while they may well have some merit, since they were not part of the hearing request, the DOE was not properly put on notice of these issues and therefore these issues will not be addressed in this decision.
Similarly, the parent raised a , which also were not mentioned in the hearing request and therefore I believe are outside the bounds of issues for me to consider.
The issue of a lack of a and was mentioned in the hearing request and there are issues that interfere with ’s . This is arguably a procedural violation, but one that may not be of any great consequence given that the IEP did recommend which might well have been sufficient, along with the provision of special education, to address ’s issues. It is not at all clear from the evidence that an and were essential given the nature of ’s issues.
I am not convinced by the DOE’s position that the placement is beyond what it needs to defend, under RE, since, as in Scott, cited above, we have here indicators that the placement was not appropriate and could not have addressed ’s needs in that the parent already knew from previous visits that the classes were too large and his needs for and would not be adequately addressed there and yet she visited again, which only confirmed her concerns. Tr. 518, 530-531.
The program director of , who is familiar with and his work, Tr. 388 , opined in her testimony that a class was too large to provide the level of that requires. Tr. 393-395. She pointed to his very , and his as among the issues that necessitate the smaller class size for Tr. 394-396. She explained that when she raised such concerns at the IEP conference, testimony that I find credible, the response was that this is what was available based on his classification and ability. Tr. 417.
Asked if she could recall any for discussed at the IEP conference, with regard to his transition from to the public school program they were recommending, the Program Director said she could not recall any such discussion. Tr. 439. Note that a review of the IEP also fails to show such a plan. When the DOE psychologist was asked about the lack of any such plan, he responded, “ ” Tr. 668. It seems to me that there is more to , with regard to which those who know have which somehow might have helped. Another comment by the psychologist, it seems to me, captured the true view of the team with regard to the transition needs. When asked earlier about this transition, he responded, “ … we had recommended a program the year before. So if he had been in the program we recommended he would have been set up already. We don’t have any control over the parents putting him in .” Tr. 667. This sounds like blaming the parents and not like setting up a program in public school for truly designed to be successful.
Even if the DOE is correct that the specifics of the placement are out of bounds for my consideration as the facts are here, the main issue here, and in my judgment sufficient to rule for the parents is that there was no new testing and the evidence from those who know is that the program as it is outlined on the IEP is insufficiently intensive to address ’s .. I do not see what has changed from the previous school years to justify the DOE’s view, without any new testing having been performed, and contrary to the views of those who know and work with , that alas
’s needs could now be addressed in the class. I therefore find that the DOE has failed in its burden to show that the program it offered for appropriately addressed ’s learning needs.
Whereas, there was evidence that , as had been previously ruled by other
IHOs, Exhibits W and X , has continued to provide for ’s unique learning needs. The DOE’s psychologist observed at the school and stated that was making progress there and he, the psychologist trusted their reports; “I’m not there to judge his progress in this program. “ Tr. 647-648. This psychologist testified that the IEP team disagreed with both the parent and the previous two Impartial Hearing Officers with regard to needing class. Tr. 651. Yet, the only psychoeducational evaluation that proceeded the IEP conference was done in February
2010. (The psychologist acknowledged that such an evaluation done later was done after the IEP conference.) Tr. 652. So without new testing, and with no reason to question the views of those who were working with and knew , he chose to disagree with their assessments of the student’s needs with regard to the type of program required.
There was testimony from both ’s program director and from the parent, supporting that his needs were being addressed and he was showing educational growth at . The program director described the “ ” with the parents at . Tr. 437. Class sizes for at ranged from to . Tr. 405, 454-
455. The school provided the student’s related services. Tr. 433, 516. ’s mother testified that she had seen progress for in , ,
. Tr. 517-523.
With the evidence of small classes, methods utilized and progress made, I conclude that the program at addressed ’s unique educational needs and was appropriate.
The parents appear to have been concerned about ’s receiving an appropriate program and I fail to see a lack of cooperation from them. ’s parent visited the proposed program on more than one occasion. Tr. 487-491. I see no reason to reduce funding for equitable reasons.
That attends a private school, a school whose program includes , should not pose a problem with regard to the DOE funding the part of the school day; i.e. by far most of the day. A decision of the State Review Office (SRO) has stated, “Tuition reimbursement does not create a financial incentive for children to undertake It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their board of education had offered their children appropriate educational placements. “ The SRO decision then noted with regard to the particular case under review that the “petitioner has not refuted the testimony of the child’s teacher that the child does not receive instruction in …[the private school].” A pplication of a Child with a Disability, Appeal No. 96-14. Similarly, “… the LEA’s reimbursement to parents for expenses incurred by withdrawing their disabled child from the public school system that they believe is not providing their child a FAPE and unilaterally placing him in a school which they believe satisfied his educational needs, does not violate the Establishment Clause [of the United Stated Constitution, forbidding the government’s establishing religion].” L.M.
v. Evesham Township Bd. Of Educ., 256 F. Supp.2d 290 (D.N.J. 2003), 303. The latter case did, however, note the U.S. Supreme Court’s case of Zobrest v. Catalina Foothills
Schl. Dist. , 509 U.S. 1, 6 n.7(1993), which prohibits the use of federal funds to pay for “ ” This rule prohibiting use of federal funds to pay for is from 34 CFR
76.532(a)(1)(1992) and in a footnote in the Zobrest decision by the United States Supreme Court it was noted that this rule is based upon the Department of Education’s interpretation of constitutional requirements. The footnote states, “This interpretation seems persuasive to us.” Ibid. Zobrest did allow public funding of a sign-language interpreter at a Roman Catholic School.
Consistent with this case law, the fact that is a school in which the program contains time for presents no obstacle to funding of special education services there. Funding of the part of the day devoted to and/ or instruction, however, presents a problem with regard to using public funds to promote the , which consistent with Footnote 7 of
Zobrest, is prohibited as a constitutional violation.
Here, a time (“ ”) is on the schedule for minutes each
(“ ”) is on the schedule for minutes each
. Thus a total of hours per week is devoted to . The school week contains a total of hours. Exhibit O. Thus, takes up of the total time.
The total tuition, including related services, for the school was Exhibit E.
Deducting the proportional amount (corresponding to times the total), means deducting from the total. The DOE is therefore responsible for payment of towards the costs of ’s education at .
The case here involves a situation where the parents have an income that would not be sufficient to pay the tuition at , as was clear from the family tax returns, and the testimony by ’s mother. Exhibits U, Y, E, F; Tr. 480-485. The family had an adjusted income in 2012 of The total cost of the school was . The family has children. In such a situation, it would clearly not be feasible for the family to devote of the family income to child’s tuition. Thus, the parent has paid only of the cost thus far. Tr. 484-485, Tr. Y. In such a situation, where parents lack the funds to pay up front, a school district must pay the monies owed, assuming that the parent’s claim is meritorious with regard to the three Burlington factors. This conclusion is based upon the following case law.
In M iener v. M issouri, 800 F.2d 749 (8th Cir. 1986), 753, the court declared, “we are confident that Congress did not intend the child’s entitlement to a free education to turn upon her parent’s ability to ‘front’ its costs.” So the fact that the situation is not one of reimbursement should not be the important factor, eliminating the ability of a parent to obtain financial relief.
In Conners v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998) at 805, the court followed similar reasoning:
By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private, non-approved school, without exception… Given the fragile state of many disabled children, and their dire need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous educational, social, emotional, and psychological deterioration. Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant “all” disabled children access to needed services could undermine that very goal by making such access dependent upon a family’s financial situation.
In a more recent second circuit case, M r. A . ex rel. D.A . v. NY CDOE, 769 F. Supp.
2d 403 (SDNY 2011), the court concluded that federal statute “authorizes direct retroactive tuition remedy for the same reasons that the Burlington court found that the Act authorizes a tuition reimbursement remedy…. Where … parents lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy the Burlington factors have a right to retroactive direct tuition relief.” Id . at 428.
Thus, with the DOE having failed to sustain its burden under Burlington/ Carter of showing that it provided for an appropriate education for , with the parents having sustained their Prong 2 burden, and no equitable basis for reducing the funding, I am ordering that the DOE pay for the cost of ’s attendance at the school. There is the matter of the in the school, however; I do not believe it would be appropriate to have the DOE pay for time, for the reasons explained above. I am also ordering direct payment to the school, along with reimbursement for the funds paid by the parents, as this is an appropriate remedy in a situation where the parent cannot afford to have paid up front, as was also explained above.
Order
The parents’ request that I order the DOE to pay for ’s unilateral placement at for the 12-13 school year school year is hereby granted. The DOE shall reimburse the parents the that they have already paid. The DOE shall make direct payment of the remainder of the (total cost minus deduction for time). These payments shall be made within two weeks of receipt of this order.
Dated: May 5, 2015
, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Parent's response to motion to dismiss, 8/3/14, 14 pages
B IEP as received by Parent, 2/15/12 & 6/22/12, 13 pages
C Parent's 10-day letter, 9/22/12, one page
E Enrollment contract with school, dated 9/4/12
F Itemized breakdown of costs dated 9/4/12, one page
G Attendance record 2012/13, dated 8/5/13, one page
H education goals 2012/2013, one page
I Modification Program, dated 2012/123, one page
J Student profile, 2012/ 2013, one page
K Classroom routines, expected , 2012/2013, two pages
L Communication goals, 2012/2013, one page
M progress and goals, February 2013, one page
N Curriculum 2012/13, two pages
O Daily schedule, 2012/13, one page
P objectives, 2012/13, one page
Q objectives, 2012/13 one page
R Teacher's report, February 2013, two pages
S Program description, two pages
T DOE Due Process Response, dated June 6, 2014, three pages
U Parent tax return 2012, five Pages
V School survey, 2012/2013, 19 pages
W Findings of fact and decision, 6/1/12, 16 pages
X Findings of fact and decision, 4/23/12, 21 pages
Y Proof of payment, 11/27/12, 2 pages
DEPARTMENT OF EDUCATION
1 Due process complaint, 6/2/14, 4 pages
2 Social history update, 2/18/10 3 pages
3 DOE FNR with Parent letter, 7/6/10, 1 page
4 Due process complaint of Parent, 5/11/2010, 2 pages 5 Parent letter, 11/1/11, 1 page
6 IEP, 2/15/12, 10 pages
7 Notice of deferred placement, 2/15/12, 1 page
8 Final notice of recommendation, 2/8/12, 1 page
9 Motion to dismiss, 7/29/14, 9 pages
12 School report, 2/2/12, 2 pages
13 goals, 2/12/12, 1 page
14 goals, 2/12/12, 1 page
15 goals, 2/13/12, 1 page
16 goals, 2/12/12, 1 page
17 Classroom observation, 11/29/11, 1 page
18 Psycho-educational, 2/18/10, 4 pages
IHO
I Interim Order, 9/9/14, 7pp
II DOE Closing Document, 4/20/15, 5pp
III Parents Closing Statement, 4/20/15, 13pp