New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: January 14, 2015

February 9, 2015

March 16, 2015

April 27, 2015

May 27, 2015

July 10, 2015

Actual Record Closed Date: August 12, 2015

Hearing Officer: Jeanne Keefe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 14, 2015

For the Student:

PARENT DID NOT APPEAR

For the Department of Education:

DEPARTMENT DID NOT APPEAR

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 9, 2015

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 16, 2015

Attorney — Student

Attorney — Student

Parents

DOE Attorney — DOE

DR., (Via Telephone) — DOE

Principal (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 27, 2015

Attorney — Student

Attorney — Student

Parents

(Via Telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 27, 2015

Attorney — Student

Attorney — Student

Parents

Assistant Principal (Via Telephone) — Student

(Via Telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 10, 2015

Attorney — Student

Parents

Department of Education Attorney — DOE

INTRODUCTION

On December 9, 2014 I was appointed as the Impartial Hearing Officer (“IHO”)

by the New York City Department of Education (“the District” or “DOE”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, §1415 (f) (1) concerning a dispute involving the special education program for (“ ” or “the student”) for the 2014-2015 school year.

BACKGROUND

is a student who attended at

(“ ”) for the 2014-2015 school year. was unilaterally placed at by his Parents for the 2014-2015 school year. His classification of is not in dispute. The Parents assert that the District has failed to provide with a free and appropriate public education (“FAPE”) and seek tuition reimbursement for the school year at issue. The District contends that was provided with FAPE and that the individualized education program (“IEP”) and recommended program addressed his unique needs.

FINDINGS OF FACT

A “ ” Committee on Special Education (“CSE”) meeting was scheduled for 3/27/14 to craft an IEP for . “ ” is a term used to describe IEP’s being developed for students who are of services. Dr. , a school at , was assigned to ’s “ ” IEP review. He testified that

IEP’s are overseen by the Committee on Pre-school Special Education (“CPSE”) and that there are fundamental differences between a CPSE IEP and a CSE

IEP. In order to reconcile those differences all students of pre-school have to have their IEP’s reevaluated. (t. 54-57, Ex. 2) Prior to , had received and then attended in a ( ) which consisted of as well as receiving (“ ”), (“ ”) and (“ ”). (t. 269, 280, 405-06, Ex. 3, 13, 14)

Prior to the CSE meeting of 3/27/14 the Parent had privately evaluated. The first evaluation was a dated December 18, 2013 (Ex. 14). The evaluation denotes that the reason for the referral was based on concerns that his parents had “..about his ov erall development and upcoming school placement… ”. In preparation the evaluator conducted a classroom observation and observed that had in the classroom and while he interacted with the adults in the room he rarely initiated. The evaluation found to be in the in and with skills. The evaluation found his school readiness skills age appropriate but that cannot function in large groups and requires to and keep up in a classroom setting. Further, is not motivated to engage in social interaction and therefore needs throughout the day which will need to be facilitated by adults. The evaluation opined that without this help will

“… .” The evaluation

recommended a small school placement of no larger than and that he be

.

The second private evaluation was a and Educational Evaluation dated January 31, 2014. (Ex. 13) Dr. , Psy.D conducted the evaluation. The Parents referred for the evaluation in order to identify his strengths and weaknesses to aid in making education decisions for the future. Dr. testified that has a unique learning profile. has , . The issues with , in make him hesitant to speak. She found that his receptive language is intact but his is well below age expectation. Dr. found a significant and very rare disparity between ’s . Dr. testified that ’s makes him stand out and that he is taking social risks. She testified that she considered that he may have but ruled that out. (t. 352-55) She found particularly unusual because his were so marked. Dr. did a classroom observation at ’s pre-school. She observed that spoke in near whisper even when , and when he did it was in response to a question. She spoke to his who had concerns about his even . The teacher informed Dr. that had when he first started school which took months to get over, and that he needed a lot of prodding to participate and was only able to socialize with adult facilitation. (t. 357-60)

Dr. tested over . She found that had and that his with his . However, in language she found weaknesses in and . The evaluation also found significant emotional vulnerabilities and that testing revealed that meets the criteria for . Dr. testified that social is a constant fear of judgement which can manifest itself in the classroom through a fear of or or . She testified that she would not base a diagnosis of social on the perception of other people. It is her professional opinion that in children is very nuanced and parents and others working with children don’t always see a child with as a professional would see it. She also diagnosed with and and that such a disorder makes it very difficult to be a participant in the classroom, interfering with . Her report notes that ’s “…

. (t. 361, 366-67, 371-73, 391-92, 394, Ex. 14)

Dr. testified that he was very happy with the depth and scope of Dr.

’s assessment. He disagreed with her recommendation of a small class because it did not mention anything about the least restrictive environment (“LRE”) and that the data strongly suggests an setting. He testified that she is not held to the same paradigm as the CSE, in that they must make the most informed decision based on LRE and FAPE. Dr. stated that a placement at might be ideal, or nice for but that is not how they formulate their IEP recommendations. (t. 220-222, 232)

In preparation for the IEP meeting Dr. interviewed the Parent, on 2/25/14, for a Social History Update. The Parent testified that during that interview Dr.

explained class (“ ”) which typically has and is students and . He believed it would be a good fit for . The Parent was concerned because though he had the evaluations Dr. had not yet met or observed in the classroom. Dr.

conducted a classroom observation on 3/11/14. (Ex. 4) The classroom observation was approximately . The

Social History Update was dated 3/13/14. (Ex. 3) (t.159, 252, 413-14)

On 3/27/14 the “ ” IEP meeting was held for . In attendance at the meeting was special education teacher, teacher, the Parent, Dr. as the district representative and school , classroom teacher, , and . Dr. testified that Ms.

is the special education teacher for the class at . (t. 57-62, Ex.

2) Dr. explained that as a school his role in the IEP meeting is to apply his expertise in interpreting and applying the data, evaluations, observations and testing.

As the district representative he is required to have a comprehensive knowledge of what programs are available and what programs should be considered. In preparation for the meeting, he reviewed all provider updates and reports as well as the outside evaluations that were provided by the Parent. In addition, he did a social history and a classroom observations. (t. 63-65) The Parent had access to many of the documents before Dr.

but the documents that he prepared, the classroom observation (Ex. 4) and social history (Ex. 3), were provided to the Parent. Dr. testified that the documents were distributed at the meeting and that a complete package was sent out to the Parent on both

4/7/14 and 6/10/14. Dr. defines a complete package as the documents used in creation of the IEP that the Parent did not have access to. (t. 69-72,454-55, Ex. 19) )

The Parent testified that Dr. opened the meeting with his recommendation of an class for and the reasons supporting his recommendation. Dr. testified that he may have told the Parent that he was going to recommend an class prior to the start of the CSE meeting. The Parent testified that she had been at other IEP meetings and it did not seem consistent with prior meetings. The Parent and the people from the pre-school had the opportunity to give their views which was that needed a smaller environment than an classroom. Ms. , the testified that during the IEP meeting she recommended that continue in a program similar to the one that he was in at the time ( ). She believed that needed to be in a social environment but one where he feels . (t.156, 196,269, 275, 420-21, 445)

was classified as and the team recommended

an program with of and , group of

, and . An class is has ,

, and typically . The students

consist of with an IEP which typically does not go with IEP’s.

The were delineated as which would allow to receive . (t. 95, 97, 124-26, 252)

It was determined that was no longer needed. (t. 73)

Dr. testified that information about ’s academic levels were provided by the Parent, the classroom teacher and the two private evaluations. At the time of the meeting ’s pre-academic skills were described as very solid and that he met or exceeded developmental expectations. Dr. testified that does not present with academic deficits in reading, or writing as evidenced by the formal testing results.

However, presents with other areas of delay that can impact classroom/academic and performance. Dr. testified that presents with in the areas of , and . presents, according to Dr. , with or that impact learning but are not specific to a certain subject area. In light of that goals were not created for a specific subject but rather to address the executive deficits. (t. 74-80)

Executive was defined by Dr. as general overarching skills that allow for the , , , , . The broad based skills that allow people to be effective in the world. A child can be very smart but if they are not attending, then it impacts their in the classroom. Dr. testified that in the IEP (Ex. 2) when a goal is delineated as academic it is an executive goal and that the goals developed were adequate to meet ’s needs. (t. 81-82) In creating the goals information was considered from the provider, classroom teacher, Parent and the private evaluations. The major concern in ’s case was an can understand what is communicated to him but had issues with expressing himself verbally which undermines his . (t. 89-90) goals were also created by the team to address ’s issues with

. (t. 93-95)

Dr. testified that there was information in the testing and from multiple sources that his social and emotional was developing in a variable manner and that was . There was a fear that he would . He stated that is central to most especially in a to . Dr. testified that in the course of his classroom observation, on

3/11/14, of he did not see a high level of but rather a who was very connected to the people in his class. He was observed to have one identified friend1 and that he was assertive and communicated his needs. Dr. testified that presented with an assortment of strengths and resources that were typical and even advanced. (t. 100-102, Ex. 4) Dr. testified that in the evaluation one of the tests used was the (“ ”) and that did not score significant or even at risk for .

Dr. acknowledges that they are getting reports that is anxious, and that he has been diagnosed with a but that he does not see it and that it is not coming up in the data. In his estimation the is not significant or so pervasive that 1 The Parent in preschool (t. 418-19, However, in the online application for response to a question about that “ has a few friends, some age.” (Ex. 20) Dr. evaluation the had a few classroom but was shy even (Ex. 13) it undermines his . Though Dr. testified that an argument could be made that he did not need them, goals were created to address , and . In the three goals that were created is embedded and in the third goal it is explicitly addressed. (t. 103-06,

Ex. 13) The goals were all developed at the meeting. The goals developed were measurable. The Parent had no objections to the goals, her objection was to the program.

(t. 107-08, 111, 228) A (“ ”) and

(“ ”) are developed for students who have or issues. did not have behaviors which would warrant and or . (t. 108-10)

were discussed at the CSE meeting and described by Dr.

as a set of recommendations that the teacher should consider in dealing with a child’s specific needs and what they will need to manage the child’s identified area of weakness.

Dr. testified that the first thing noted is the recommended placement in an class, which Dr. characterizes as an “ideal program”. is in many ways so that he would receive the benefit of the least restrictive environment and exposure to typically developing peers. (t. 112-14, Ex. 2) The were specifically developed to meet ’s needs. (t. 119) A was not developed for as that is something that is only for older students and not appropriate for a child. It was not believed at the time of the IEP meeting that was necessary. Dr. testified that the difference between pre-school and is dramatic as far as is concerned and an evaluation for or an / would be properly done in the new environment. (t. 121-22)

Dr. testified that the program was explained to the Parent and that she understood and was very well informed. He defined a school as a school, for the most part, in the students’ home school zone. If you are in a school you should be able to function using the curriculum.

Dr. felt that the school placement is appropriate for because it places him in a broad based learning environment with typically developing peers and that is critical to improvement. Further, that presents with a broad array of strengths, academically, intellectually and even socially and would benefit in a school.

(t. 128-30) At the meeting the Parent advised the team that had been accepted at . (t. 131, 431) A deferral to the central based support team (“CBST”) for a referral to a nonpublic school and a ( ) were discussed and rejected as it was determined that would be able to meet his needs in a less restrictive setting. The

Parent did not agree with the recommendation feeling that would fall through the cracks and that he would not be able to function in a larger setting. (t. 130-138, 453, Ex.

2) Dr. testified that he believed the setting would be ideal for in part because the , Ms. , had told him that she felt the setting would be ideal for . (t. 139, 216-17) Ms. testified that she does not believe that an class would be appropriate as it is too large with approximately and even with that would for . Ms. stated at the IEP meeting that she did not think that an class would be appropriate. (t. 269-70, 275,

278)

is a school that follows the workshop model. Principal testified that the workshop model is a structure of teaching which allows for differentiated instruction. As an example the teacher will teach a mini lesson and then the students will go off and do the work that they are assigned. During that time the teacher, or teachers will meet with to make sure that they are learning and teach students at their level. The school is currently above capacity but their classrooms still fall within normal parameters. (t. 237-39) The Principal testified that they have one class and do not have a class. (t. 249) The Parent testified that she visited in December 2013, prior to the IEP meeting. She testified that there was an open house and she went to see the school as it is her zoned school and was supposed to go to the following year. The Parent testified that she moved to the area so that her children could go to . The principal gave a talk and then they gave tours of the school. Her group was comprised of Parents of students with IEP’s. She asked about an and was told that they do not have one, she asked about a and was told that they did not have one. She saw the class and saw groups of kids scattered around the room working independently, one teacher was working with a student and the other was standing there. They were following the workshop model. (t. 408-10, 428, 446) The Parent did not believe that the workshop model would work for . (t. 430, 432) On May 21, 2014 the Parent sent a letter to (Ex. D) acknowledging receipt of a placement letter for with the recommendation of an class at . While she states that she has serious reservations about the program she indicates that she would like to visit the program in September to see if it appropriate. The Parent testified that she had already seen the class in December so she did not think there was any point in going in June to see it again. (t.

437) A letter dated June 3, 2014 was sent to the Parent by Dr. in response to her May 21 letter. (Ex. 18) He asks her to let them know what days she would be available to tour the school in June or September and gives his phone number, or she can contact the school’s parent coordinator. The Parent testified that she tried to visit the recommended placement in September, 2014. She called the parent coordinator and left messages but she never received any return calls. The Parent testified that she did not call Dr.

directly to arrange a visit because she wanted a more objective situation when she visited the school. She did not just show up at the school because she did not think that you could and thought it would be disruptive. She finally visited the school in December 2014 for an open house. Principal gave essentially the same talk as the prior year and she was able to tour the class which she described as . She asked to see a and was told that there was not one. On December 4, 2014 the Parent sent a letter to the CSE Chair, detailing her visit and advising that she did not find it appropriate for . The Parent testified that she had researched the school before moving to her apartment and hoped that her children would attend . She did not want to pay private school tuition but was not finding anything that would allow her to send to . (t. 438-41, 446, 456-57, 467)

The Parent submitted an online application to dated 1/14/14. (Ex. 20)

On March 10, 2014 the Parent signed an enrollment contract with . (Ex. 17) The

Parent testified that she did not know what the result of the IEP meeting was going to be and that she believed that Dr. had already made up his mind to recommend .

The Parent believed to be an appropriate program for and she signed the contract, in order to secure a placement. The Parent testified that if she had felt that could be appropriately educated under the IEP she would have accepted the recommended program. She further testified that the enrollment contract would have allowed her to withdraw her acceptance, losing any deposits that she had made but she was willing to do so. (t. 445-46) The Parent had paid the tuition for in full by

8/7/14. The Parent was unsure if she would have removed from if she had found the recommended placement appropriate in December 2014. (t. 460-61, Ex. M)

, Assistant Principal of the at testified that it is a school for children with . It is a school for children classified as or ith a student population of There are in grades . The class ratio for is , in the ratio is with . is a student at in and Ms. sees him on a

(t 296-98) The staff has

. The students are leveled by at . As an example a would be comprised of , . (t. 300) Ms. describes as having strengths in , , . She notes that he struggles significantly when asked to complete activities with a or in a . is described as a well-liked in his classroom by his peers but that he really . If he is

(t. 302-04) very often works in a

(t. 442-443)

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §1400-1482)

has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. §1400 (d) (1) (A); see Schaffer

v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. §1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. §1414 (d); 34 C.F.R. 300.320).

There is a three prong test that is the legal standard applicable in a request for reimbursement for educational services: (1) were the services offered by the Department of Education inadequate or inappropriate; (2) if so, were the services selected by the parent appropriate; and (3) if so, are there equitable considerations to support the parents.

School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S.

359 (1985). Pursuant to N.Y. Education Law § 4404 (1) (c) the burden to proceed on prong 1 is that of the School District.

I find that based on the testimony and evidence adduced at the hearing that the District failed to provide with FAPE for the 2014-2015 school year based on procedural and substantive deprivations. The District failed to meet ’s unique academic needs in that the IEP was not reasonably calculated to confer an education benefit as the program recommendation was predetermined and the Parent was not given the opportunity to fully participate in the IEP process.

The State Review Office (“SRO) considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or caused a deprivation of education benefits.” (Matrejek v. Brewster Cent. School Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007). FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”.

(Rowley, 458 U.S. at 203) The Court in R.E. v. New York City Dep’t of Educ., 694 F.3d 167, at 191 (2d Cir. N.Y. 2012) emphasized that “even minor violations may cumulatively result in a denial of FAPE”. See also Application of a Student With A

Disability., Appeal No. 15-001 where the aggregate effect of procedural violations resulted in a denial of FAPE.

The due process complaint makes a number of allegations regarding the IEP process, meeting and recommended program as well as placement. In A.H. ex rel. J.H. v.

Department of Educ. Of the City of New York, 394 Fed. Appx. 718 (2010) the Court noted that “The relev ant inquiry w as not w hether the proposed IEP provided all possible support to ensure that JH did not lose focus, but rather w hether the objective evidence indicated that the child w as likely to progress, not regress, under the proposed plan.” I find that in the instant case the IEP process was marred by predetermination by Dr.

that the appropriate program for would be an program. Both private evaluations submitted by the Parent found that did not engage in social interactions readily and required adult facilitation. The evaluation diagnosed with and found that he had a unique learning profile. It is undisputed that has . Both evaluations recommended a . In both evaluations classroom observations were conducted which found interacted minimally with peers and required adult facilitation to interact. These finding were supported by the Parent, teachers and service providers that interacted with on a daily basis. A picture is painted of a student who due to his and is and not reaching his academic and social/emotional potential. In turn it is hindering in developing his . In stark contrast is the student portrayed in the classroom observation by Dr. . He did not find to be , but rather in the hour that he observed him to be highly related, verbal, and socially proactive. He also found to be very connected to the people in his class and that he was assertive and communicated his needs. Dr. acknowledged that he had reports that was and had been diagnosed with a but that he did not see it, nor did he believe that the data supported it. Dr. testified that he was happy with the depth and scope of Dr. ’s evaluation. However he observed that the did not score “ ” for under the . Dr. testified that in a child is nuanced and may not be seen even by people who see the child daily. In this instance the people who interacted with on a daily basis saw quite clearly the student’s struggles with language and social interaction, its impact on him academically and supported the need for to be in a classroom environment.

Dr. first raised the program with the Parent when he interviewed her for the Social History Update. Dr. told the Parent that the program would be a good fit for , this before he had even done the classroom observation. Further, Dr.

acknowledged that he may have told the Parent prior to the start of the IEP meeting that he was recommending the program and opened the IEP meeting with his recommendation of the program for . In T.P. ex rel. S.P. v. Mamaroneck Union Free School Dist., 554 F.3d 247 (2009) the Court found that school districts can engage in preparatory activities and form opinions as to what is the best course of action as long as the school district has an open mind and the Parents have the opportunity to meaningfully participate. Further, in P.K. ex rel. P.K. v. Bedford Cent. School Dist., 569 F. Supp.2d

371 (2008) the Court noted that mere parental disagreement with the districts proposed IEP and placement does not mean a denial of meaningful participation. In the instant case the Parent, teacher and service providers were given the opportunity to participate but I do not find it was meaningful. Their observations and concerns were heard and duly noted and the recommendation of the program with was made. Dr.

this recommendation, in part, because of the support of ’s preschool classroom teacher for an classroom. Ms. testified credibly that she did not believe that an classroom would be appropriate for and stated that even with it would for him. In addition, Dr. testified that while a placement at might be ideal for he is constrained by requirements that he consider FAPE and LRE in making program recommendations. The LRE is the least restrictive environment in which can make progress. The testimony and evidence adduced at the hearing overwhelmingly points to a classroom, not an setting with , in order for to make progress. I find the testimony of Ms.

, the Parent and Dr. credible and a finding that would not make academic progress in the recommended program of an classroom. I do not find that the remaining allegations of the Parent have merit. Having reached the determination the District has failed to provide FAPE, I do not address the remaining allegations.

The Parent has the burden of proof, that the services provided were “proper under the Act” Florence County School District v. Carter 510 U.S.7 at 12, 15 (1993); Burlington, 471 U.S. at 370, that the private school offered an educational program that met the child’s special education needs. The Second Circuit has held that a “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child’” Gagliardo v Arlington Cent. Sch. Dist., 489 F3d 105, 115 (2d Cir. 2007) (emphasis in original)

A parent must show that the unilateral placement afforded the student with an educational benefit but need not “meet the IDEA definition of a FAPE…or meet state education standards” and it need not “furnish every special service necessary to maximize their child’s potential.” Frank G v. Board of Education of Hyde Park., 459 F3d 356, at 364-65. I find the parental placement as issue had been reasonably calculated to confer an educational benefit to the student. I find that the testimony, and evidence submitted by the Parent support this finding. The testimony supported the Parents position that the student is progressing academically and that the school has crafted an individualized program that meets the student’s academic and social needs. I find the testimony of the Assistant Principal at credible that the program meets individual education needs. The DOE argues that the placement at is not appropriate. I am not persuaded and find the is an appropriate placement.

The third prong of the test for tuition funding is whether the equities favor the Parent’s position or the District. I find that the Parents cooperation with the CSE process was superficial and that she had no intention of placing in the public school system.

The testimony of the Parent reveals that she visited in December 2013 and was aware of what the school offered for that school year. The evidence shows that the Parent applied to online (Ex. 20) on 1/14/14 prior to the evaluation by Dr. .

Further, she signed the enrollment contract for prior to the CSE meeting. While the Parent testified that she did this to secure a spot for , she also testified that it was because of her interview with Dr. and she was concerned about the recommendation of an class. Yet she had clearly applied to before even hearing about an class from Dr. . The Parent also testified that the enrollment had an “escape clause” (Ex. 17) so she would be able to recoup the money that she had paid less any deposits. A review of the enrollment contract reveals that the refund policy on withdrawal is progressive in that tuition payments are required to be made in full by August 4, 2014, but if withdrawal is made prior to that date or the prior due dates set forth in the contract the parent could receive a prorated reimbursement but not the entire amount (unless done prior to June 2). In any event the Parent fully paid the tuition by August 7, 2014 ). The contract clearly states that “Should funding be approv ed after payment has been made you will be fully reim bursed for all tuition paid by you for the period subsequent to the effective date of approv al.” The Parent testified that she did not go to tour in June 2014 because she had already been there in December 2013 and stated that she wanted to visit in September 2014. Dr. sent her a letter in June with his phone number and stated that she could call him, or the parent coordinator to schedule a school tour in June or September. The Parent testified that she called the parent coordinator several times and never got a response. She testified that she did not call Dr. because she wanted an objective experience. I do not credit her testimony on this point. She finally toured the school in December 2014, well after any “escape clause” in the enrollment contract with had expired. In fact, even visiting the school in September 2014 would have been too late to have any portion of the tuition refunded. When asked if she would have, if she had found the program appropriate, removed from she testified that she would have to think about that. In touring the school I find that the Parent was making a superficial gesture of going through the motions in order to give the appearance of cooperation with the CSE process. In view of the foregoing I find that the equities favor the District.

ORDER

Therefore, I find that the District failed to provide FAPE to for the 2014-2015 school year. However, I find that the equities favor the District and therefore the request for tuition reimbursement for for the 2014-2015 school year is denied.

Dated: August 19, 2015

JEANNE KEEFE, 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 FEBRUARY 9, 2015

1. Due Process Response, dated 12/17/14, 4 pages District

2. Individualized Education Program (IEP) and attendance page, dated District

3/27/14, 14 pages

3. Social History Updated, dated 3/13/14, 2 pages District

4. Omitted as illegible District

5. Teacher Progress report, dated 3/4/14, 2 pages District

6. Teacher Progress report, dated 11/15/13, 2 pages District

7. Progress Report, dated 2/14/14, 2 pages District

8. Progress Report, dated 11/15/13, 2 pages District

9. Progress Report, dated 2/11/14, 2 pages District

10. Progress Report, 11/15/13, 2 pages District

11. Progress Report, dated 2/3/14, 4 pages District

12. Progress Report, dated 11/14/13, 3 pages District

13. and Educational Evaluation ( , District

Psy.D), dated 1/31/14, 14 pages

14. , dated District

12/18/13, 5 pages

15. Final Notice of Recommendation, dated 5/9/14, 1 page District

16. Omitted as illegible District

A. Impartial Hearing Request, dated 12/8/14, 4 pages Parent

B. Parent Letter to Dr. , dated 4/1/14, 2 pages Parent

C. Parent Letter to Dr. , dated 4/8/14, 3 pages Parent

D. Parent Letter to , dated 5/21/14, 12 pages Parent

E. Pre-School Progress Reports, dated 5/28/14, 12 pages Parent

F. Ten Day Letter, dated 8/18/14, 4 pages Parent

G. Parent Rejection Letter, dated 12/4/14, 3 pages Parent

H. Withdrawn 3/16/15 Parent

I. Program Description, undated, 5 pages Parent

J. Mid-Year Report Card, dated 1/15, 10 pages Parent

K. 2014-2015 Class Schedule, undated, 1 page Parent

L. Attendance Records, dated 2/2/15, 2 pages Parent

M. Proofs of Payment, dated 10/30/14, 5 pages Parent

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 16, 2015

4. Preschool Teacher Interview and Classroom Observation, dated District

3/11/14, 13 pages

16. IEP minutes with transcription, dated 3/27/14, 8 pages District

17. Enrollment Contract for School, dated 3/5/14, 2 pages District

18. Letter from Dr. , dated 6/3/14, 1 page District

19. Events Log, various dates, 2 pages District

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 27, 2015

20. Online Application for School, dated 1/14/14, 9 pages District

POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER

I. Statement of Adjournments and Extensions, undated, 1 page IHO