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: May 5, 2014

July 29, 2014

Actual Record Closed Date: April 2, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 5, 2014

Attorney — Student

Parent/Father — Student

Parent/Mother — Student

Attorney — DOE

Teacher Assigned (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 29, 2014

Attorney — Student

Head of (Via Telephone) — Student

Parents

Parents

Attorney — DOE

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as the District, the parents as “ ” “ ” This is a reimbursement

case.

PARENTS’ POSITION

The Parents allege that the District failed to provide the Student with a Free Appropriate Public Evaluation (FAPE) for the 2012-2013 school year. (Ex. 1) The

Parents argue that the relevant IEP was both procedurally and substantively flawed. (Id. at

1) Generally, the CSE was improperly constituted; it failed to consider the appropriate evaluative material; it failed to evaluate the Student in all areas of suspected disability; and it failed to provide the Parents with a meaningful opportunity to participate. (Id.)

The Parents allege that the CSE did not consider information outside of the Student’s school progress reports. (Id. at 2) The CSE failed to consider current evaluative and documentary material to justify its recommendation and goals. (Id.) Thus, the CSE had an insufficient understanding of the Student’s and needs upon which to base its recommendation. (Id.) The Parents were denied the right to meaningfully participate because the CSE did not provide the Parents or the Student’s faculty with copies of the documentation relied upon to develop the IEP. (Id.)

The Parents allege that the Final Notice of Recommendation (“FNR”) was the first time the CSE notified the Parents of its decision regarding the Student’s programming.

Rather than recommending placement in a state-approved school, as was discussed at the IEP meeting, the CSE unilaterally recommended a placement in a school. (Id. at 4) The Parents allege that they were not offered an opportunity to provide input into this decision. (Id.) Notably, the Parents allege that the IEP failed to mention the Private School program discussed at the IEP meeting. (Ex. 1-3-4; IHO 1-8-9) The understanding the Parents were left with, after the IEP meeting, became a central issue in this case. (Id.)

The Parents cited a number of other issues in connection with the general allegations set forth above. These supplementary arguments are noted where appropriate throughout this decision. Reciting all of the Parents’ claims is unnecessary in light of several pivotal findings in their favor.

DISTRICT’S POSITION

The District argues that the Student was classified as on or about April 23, 2012; and there was no reason to change this classification. (Ex. 2-1)

The District recommended placement for the Student in a with related services.

(Ex. 2-2; IHO 2-4-6) This recommendation was appropriately based on teacher progress reports. (Id.)

The District maintains that it complied with the procedures set forth in the IDEA when the District formulated the Student’s IEP. (Ex. IHO 2-3) Furthermore, the Parents should not have left the IEP meeting with the belief that the CSE’s recommendations were open-ended. (Id. at 5) The District argues that such belief was unjustified because the CSE would not leave a program determination undone, without following up with the

Parents. (Id.)

The District argues that the Parents did not meet their burden to show that the Private School placement was appropriate. (Id.) Lastly, the equities do not favor the Parents in this case.

STUDENT HISTORY

At the time the Due Process Complaint was filed, the Student was ( )

years old. Per the April 23, 2012 IEP, the Student was classified as or

Impaired. (Ex. 3-1) An IEP was developed for the Student when he was in ( )

grade; and he has had one ever since. (Tr. 254-255) With respect to the Student’s educational history, the record is otherwise silent until 2011.

In 2011, the Parents enrolled the Student in the Private School. (Tr. 456) Progress Reports issued by the Private School in November of 2011 indicated that the Student was either

(“ ”) ; ;

; ; ; ;

. (Ex. 6-3-10) This Progress Report

documented the Student’s performance during the first trimester of the 2011-2012 school year.

Another Report was issued to document the Student’s progress in the second trimester of that year. (Ex. 7) Therein, slight improvement was documented in a number of the areas listed above. (Id. at 3-17) A third Progress Report was issued in June of 2013.

(Ex. H) By the third trimester, the Student was . (Id. at 2-16) The Student still

;

. (Id.)

The Student entered the ( grade for the 2012-2013 school year. (Ex. J) His attendance record for that year showed that he attended school regularly. (Ex. O)

Academic Year (Tr. 256) Grade Attended by the Student (Tr. 256)

2010-2011 School Year ( ) Grade: ( ) year enrolled at the Private School 2011-2012 School Year ) Grade: ) year enrolled at the Private School 2012-2013 School Year ) year enrolled at the Private School

This is the academic year in which the

Parents allege that the Student was deprived of a FAPE. 2013-2014 School Year ) year enrolled at the Private School 2014-2015 School Year (current) ) year enrolled at the Private School

FINDINGS OF FACT

The following conclusions based on evidence shall be considered factual findings in this case:

1. The Parents did not offer evidence or testimony to dispute the validity of the attendance page associated with the April 23, 2012 IEP meeting. (Ex. 4-1)

2. The CSE was duly constituted. (Id.)

3. The District did not consider sufficient evaluative material to formulate the 2012- 2013 IEP (Tr. 36-37)

4. The CSE led the Parents to believe that a deferral was made to the Central Based Support Team (“CBST”) for determination of the Student’s eligibility for publicly funded placement at the Private School. (Ex. C; Tr. 262-63)

5. The CSE unilaterally recommended the placement without the Parents’ knowledge. (Id.)

6. The Parents did not have reason to suspect the recommendation would be made prior to receiving the FNR. (Id.)

7. The Parents were denied the opportunity to meaningfully participate in the decision-making process. (Id.)

8. The Student made steady progress at the Private School. (Ex. F; G; H; Tr. 179)

9. The Private School is an appropriate placement. (Ex. F; G; H; Tr. 201-42)

10. The District knew the Student was attending the Private School during the 2011- 2012 school year. (Tr. 256)

11. The Parents first learned of the CSE’s recommendation in the June, 2012 FNR.

(Id. at 266)

12. The Parent notified the District that the Parents were turned away from the recommended placement. (Ex. D-1)

13. The Parents timely notified the District that they intended to keep the Student in the Private School until a satisfactory recommendation could be made. (Id.)

14. The District was given an opportunity to devise an appropriate plan, and determine whether a FAPE could be provided in the public school recommendation. (Ex. 3)

15. The Parents gave the District sufficient notice of the unilateral placement. (Ex. C; D)

DISCUSSION

A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim.

Florence County Sch. Dist. Four v. Carter. 510 U.S. 7 (1993); Sch. Comm. Of Burlington

v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The first prong; whether the services offered by the board of education were inadequate or inappropriate, is the proper heading under which to consider the alleged substantive and procedural violations in this case.

PRONG I

The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); W alczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child with a Disability (City School District of B uffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. S traube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F.

Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)

This straightforward obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (A pplication of a Child Suspected of Having a Disability , Appeal No. 93-9). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]).

I begin with the Parents’ allegation that the CSE responsible for the April 23, 2012 IEP was improperly constituted. (Ex. 1-1) The IDEA requires a CSE to include, among others, one special education teacher of the student or, where appropriate, not less than one special education provider of the student (20 U.S.C. § 1414[d][1][B][ii]-[iii]; see 34 CFR § 300.321[a][2]-[3]; 8 NYCRR 200.3[a][1][iii]; see 8 NYCRR 200.1[xx]

[defining "special education provider, in pertinent part, as an "individual qualified . . .

who is providing related services" to the student]; 8 NYCRR 200.1[yy] [defining "special education teacher," in pertinent part, as a "person,…, certified or licensed to teach students with disabilities"]). Section 4402 (1)(b)(1) of the Education Law provides that a CSE shall consist of the child's teacher as defined by Federal regulation, a school psychologist, a representative of the school district who is authorized to provide or supervise the provision of special education, a parent of a child with a handicapping condition and a school physician, except that the physician need not attend a meeting unless requested to do so by a parent. (SRO No. 92-37)

The District offered the April 23, 2012 IEP as Exhibit 3. The attendance page attached thereto indicates that the Related Service Provider/Special Education Teacher; Parent/Legal Guardian; District Representative; School Psychologist; Parent Member; Private School Principal; and Private School Teacher attended the IEP meeting. (Ex. 4-1) The Parents did not offer evidence or testimony to dispute the validity of the attendance page. Nor is there other evidence in the record to support the Parents’ allegation. Therefore, this allegation is dismissed.

I consider next whether the CSE used appropriate evaluative material. Within this general allegation, the Parents argue specifically that the CSE did not consider information outside of the Student’s school progress reports. (Ex. 1-2) More particularly, the CSE failed to consider current evaluative and documentary material. (Id.) In light of the alleged oversight, the Student was not evaluated in all areas of suspected disability.

(Id.) Thus, the CSE had an insufficient understanding of the Student’s and needs upon which to base its recommendation. (Id.)

Federal and state law requires an IEP to be based upon a complete assessment of a student’s abilities and needs. 34 C.F.R. §§ 300.305, 300.324; 8 N.Y.C.R.R. §§ 200.4(b),

(f)(1). In performing the annual review of an IEP, a CSE team must consider a Student’s initial or most recent evaluations; his current assessments; his strengths; and his academic, developmental, and functional needs, in addition to parental concerns. §

200.4(f)(1). No single measure or assessment shall be used by a school district as the sole criterion for determining an appropriate educational program for a student. §

200.4(b)(6)(v). Moreover, the CSE must conduct a complete evaluation of a student before recommending any significant change of placement. 34 C.F.R. § 104.35(a).

Upon the evidence before me, I find that the District did not consider sufficient evaluative material. This was one procedural violation among others. I find also that the CSE led the Parents to believe that a deferral was made to the Central Based Support Team (“CBST”); then the CSE unilaterally recommended the placement without the Parents’ knowledge. This in part led to the CSE’s failure to provide the Parents with a meaningful opportunity to participate.

I begin with District’s failure to consider sufficient evaluative material. The CSE Special Education Teacher, whose testimony I credit, testified that the CSE team used only the Student’s most recent Private School progress report in preparation for the IEP meeting. (Tr. 36-37) He stated that no other evaluative material was used because the meeting was an annual review. (Id. at 36) The CSE did not rely upon a psychoeducational evaluation, classroom observation, medical assessment, standardized assessments, or a social history. (Tr. 88-89) Section 200.4(b)(6)(v) states that no single measure or assessment shall be used by a school district as the sole criterion for determining an appropriate educational program for a student. Because the Private School progress reports were used as a single measure to formulate this Student’s IEP, I find that the District violated § 200.4(b)(6)(v).

I now consider the CSE’s recommendation for the placement. (Ex. 3-9)

The Parents argue that the CSE made this recommendation unilaterally. (Ex. 1-3) The Parents participated in the April 23, 2012 IEP meeting, but they argue that the meeting was not conclusive. (Tr. 262) Rather, the Parents left the meeting with the belief that the Student would undergo upcoming evaluations. (Id. at 262-63) Those evaluations would be used to inform a final recommendation for the Student. (Id.)

The rules require the CSE to ensure that all meeting participants, including the parents and the student’s teachers and providers, are afforded an opportunity to meaningfully contribute to a discussion of the student’s needs so that a true conference is possible. 8 N.Y.C.R.R. §§ 200.3, 200.4(f)(1); 34 C.F.R. §§ 300.324.

The Parents argue that they were not consulted about the appropriateness of the recommended program; and therefore, they were denied the opportunity to meaningfully participate in the decision-making process. (Ex. IHO 1-8) On this issue, the Parent allege that the CSE unilaterally recommended the placement after the April 23, 2012 IEP meeting. (Ex. 1-3; C) The Parents first learned of the recommendation upon their receipt of the June, 2012 FNR. (Tr. 266) The Parents were surprised because they believed the CSE was waiting for data from upcoming evaluations to determine whether the state would fund a different program. (Ex. C; Tr. 262-63)

However, the Parents’ account conflicts with the testimony given by the CSE Special Education Teacher. (Tr. 64-65; Ex. IHO 2-5) The Special Education Teacher testified that a review of his notes indicated that the placement was discussed at the April 23, 2012 IEP meeting. (Id.) Regardless of whether the was discussed, I find that the Parents did not have reason to suspect the recommendation would be made prior to receiving the FNR. Therefore, the Parents were deprived the opportunity for meaningful participation in the decision-making process. 8 N.Y.C.R.R. §§ 200.3,

200.4(f)(1); 34 C.F.R. § 300.324.

The Parent testified that there was never a consensus with respect to the IEP, and that it was going to be left open until evaluations were completed. (Tr. 263) The Parents were not advised that the recommendation was being formalized at the April 23, 2012 IEP meeting. (Tr. 263) In fact, no placement was actually recommended at that meeting. (Id.) The Parents were not notified that the recommendation was officially made until they received the June 2012 FNR. (Ex. C; Tr. 267) These facts are uncontested; and for these reasons, I need not make a finding as to whether the was discussed at the IEP meeting. Pursuant to 8 N.Y.C.R.R. §§ 200.1(1), and 200.5(b), the District is required to provide prior written notice of a recommendation. It did not do so here. Regardless of whether the was discussed at the IEP meeting, the evidence does not suggest that the Parents knew the District actually planned to recommend the going forward.

Even where the District may have intended to recommend the , I find that it did not provide sufficient notice to the Parents. I find this to be the case, even if such recommendation was mentioned at the IEP meeting. Without knowledge of the District’s intent to record the recommendation in the IEP, the Parents could not participate meaningfully in the decision-making process. I therefore resolve this issue in favor of the

Parents.

At this juncture, it is appropriate to note the effect of certain procedural violations found within a Prong I analysis. [A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (W alczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206. For the most part, these additional assertions are duplicative of those contained in the petition. 6 Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA. A .C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009].

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a)

impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).

So far in this case, the Student’s right to a FAPE was first impeded by the District’s failure to consider sufficient evaluative material. In addition, the Student’s right to a FAPE was further impeded when the Parents were denied the opportunity to participate meaningfully in the decision-making process. Prong I turns on these two points. In accordance with 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; and 8 NYCRR 200.5[j][4][ii], I find that these procedural violations worked in unison to deprive the Student of a FAPE.

I turn now to the issues that are substantive in nature. The Parents argued that the natural consequence of the District’s failure to conduct adequate evaluations was a substantively-inadequate IEP. (Ex. 3; IHO 1-11) The IEP failed to mention the Student’s academic and social deficits, which were many. (Ex. 3; A-5-6; IHO 1-11; 178-82) The Parents alleged that the IEP failed to include sufficient, appropriate, objectively measureable goals and short-term objectives to assess the Student’s progress. (Ex. 3; A-7;

IHO 1-12) Central to the argument on substantive issues, was the Parents’ claim that the IEP could not be implemented at the recommended placement. (Ex. 3; IHO 1-15-21) The DOE argued that it was not required to prove that the IEP would be implemented in accordance with state and federal law because the Parents had already rejected the written plan. (Ex. IHO 2-8)

The bricks and mortar issue may have been appropriately analyzed by the District (Ex. IHO 2-6-9); however, I need not make that finding in this case. The procedural errors— attributable to the District, indicate that the Student was not offered a FAPE for the 2012- 2013 school year. The central issue in reimbursement cases such as this is whether the school district offered a FAPE. To this end, the District has the burden of demonstrating the appropriateness of the program recommended by its CSE. In the face of documentary evidence and related testimony offered by both parties, I find that the District failed to offer the Parent a meaningful opportunity to participate in the development of the Student’s IEP. Likewise, the DOE overlooked its obligation to conduct and consider appropriate evaluative material. For these reasons, I resolve Prong I in favor of the Parent.

PRONG II

I now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” S chreiber v. E. Ramapo Cent. Sch. Dist., 700

F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

“ . . . [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”

Gagliardo v. A rlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir.

2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d

Cir. 2006]

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v.

Cum berland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

Although the burden of proof is on the school district during an impartial hearing, a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New Y ork City D ep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

In this instance, the Parent met their burden. The Student was enrolled in a program for students ages . (Ex. I-1) This program is in line with the New York State and is modified to meet the varying needs of students with an emphasis on the development of (Id. at 2).

The Parent testified that the Student did, in fact, make progress in this program.

(Tr. 283) He said that the Student is more confident, enjoys going to school, is making friends, and is even more willing to learn. (Id.) The Parent’s testimony is corroborated by the Student’s progress reports and the testimony offered by the . (Ex. F; G; H; Tr. 179)

The Student’s Private School Progress Reports indicate steady development in nearly all areas throughout the 2012-2013 school year. (Ex. F; G; H) The first Progress Report was issued in November of 2012. (Ex. F) This Report indicated that the Student was

. (Id.) The Student began to improve, and his progress is documented by the second Report. (Ex. G) Therein, it is documented that the Student became able to (Id. at 3-17) The third Progress Report was issued in June of 2013. (Ex. H)

By the third trimester, the Student was able to . (Id. at 2-16)

The documentary evidence is reinforced by the testimony of the . He testified that the Student made progress with , . (Tr. 201) The Student saw progress from . (Id.) Specifically, his aptitude for independent improved. (Id.) Through , the Student was able to make progress (Id. at 202). Thus, he was better able to deal with . (Id. at 203-04)

Notably, the Student’s academics improved. (Id. at 204). The pointed to the Student’s as a reason for his improvement. (Id. at 205) The is used to address the Student’s . (Id.) Instruction at the Private School is generally delivered in .

The Students are usually taught in students, and in special subjects they are taught as a class of students. (Id. at 230-232) Related services, whether

, are conducted in . (Id. at 241-242). The Private Grammar

School had just over ( ) students during the 2012-2013 school year, and these students are in their own building. (Id.)

Upon the information before me, I find that the private school placement, with less students and a greater student-to-teacher ratio, and a program including and services is likewise appropriate. Because the standard for a private placement is only that it is appropriate, and not perfect, (SRO 04-

058) I find that the Private School is suitable in this case. Therefore, I find that the Parents did meet their burden of proof with respect to the second of the three criteria.

PRONG III

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington

v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).

"Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR

300.148).

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." (20 U.S.C. § 612[a][10][C][iii][I] ; see 34 C.F.R. § 300.148[d]) 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." (Greenland Sch. Dist. v. A m y N ., 358 F.3d 150, 160 [1st Cir. 2004])

In this case, the Student was attending the Private School at the time of the April 23, 2012 IEP meeting. (Tr. 256) In fact, the Student began attending the Private School during the 2010-2011 school year, when he was in ) grade. (Id.) He has been there ever since. (Id.) The Parent, whose testimony I credit, testified that the CSE led the Parents to believe that a recommendation for 2012-2013 would not be made until certain student evaluations were completed. (Ex. C; Tr. 262-63)

Based on the above-mentioned facts, I find first that the District knew the Student was attending the Private School during the 2011-2012 school year, when the IEP meeting was held. As discussed in the Prong I analysis, I find also that the CSE did not make a recommendation at the April 23, 2012 IEP meeting. In fact the Parents first learned of the CSE’s recommendation in the June, 2012 FNR. (Tr. 266) On or about June 18, 2012, the Parent notified the District that the recommendation would not be accepted until the Parents could visit the program. (Ex. C-1) In a letter dated August 15, 2012, the Parent notified the District that the Parents were turned away from the recommended placement. (Ex. D-1) Therefore they intended to keep the Student in the Private School until a satisfactory recommendation could be made. (Id.) Accordingly, I find that the District was given an opportunity to devise an appropriate plan, and determine whether a FAPE could be provided in the public school recommendation. Greenland Sch. Dist., 358 F.3d 150, 160 [1st Cir. 2004]). Also, I find that the Parents gave the District sufficient notice of the unilateral placement, especially in light of the procedure in this case.

Overall, the record indicates that the Parents cooperated with the CSE in their efforts to provide the Student a FAPE. I find no equitable considerations that weigh in favor of the District.

It is therefore ORDERED

That the District reimburse/pay the Parent/Private School for percent

( of the tuition at the Private School upon the presentation of proper invoices for the payment of such tuition.

So Ordered, Dated: April 2, 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 RECORD

PARENT

A Impartial Hearing Request, 9/30/13, 13 pages

B Letter from Parent to w/fax Report, 4/19/12, 2 pages

C Letter from Parent to and w/fax report, 6/18/12

4 pages

D Letter from Parent to and w/fax report, 8/15/12, 3 pages

E Letter for Parent to and w/fax report, 9/7/12, 4 pages

F Progress Report, Nov. 2012, 17 pages

G Progress Report, March 2013, 19 pages

H Progress Report, June 2013, 23 pages

I Program Description, undated, 4 pages

J Class Schedule, 2012-2013, 1 page

K Contract and Fee Schedule, 4/30/12, 2 pages

L Affidavit of , 8/28/13, 1 page

M Proof of Payment, 4/30/12, 1 page

N Tax Returns, 2012, 2 pages

O Attendance Record, Sept. 2012 to June 2013, 1 page

P Letter from CSE to Parent, 10/5/12, 1 page

Q Consent to Evaluate Form (signed), 10/26/12, 1 page

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 9/30/13, 13 pages

2 Due Process Response, 11/1/13, 4 pages

3 IEP, 4/23/12, 15 pages

4 Attendance Page, 4/23/12, 1 page

5 Meeting Minutes Notes, 4 pages

6 Progress Report, Nov. 2011, 13 pages

7 Progress Report, March 2012, 23 pages

IMPARTIAL HEARING OFFICER

IHO 1 Parent’s Closing Brief, 31 pages

IHO2 DOE Closing Brief, 13 pages