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: December 19, 2013

September 22, 2014

October 30, 2014

February 5, 2015

Actual Record Closed Date: February 23, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 19, 2013

Esq. Attorney Associated with Attorneys for Parents, Pys.D. Representative for New York City — Parents

Department of Education and District — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 22, 2014

Parent of Student — Parents

Esq. Attorney Associated with Attorneys for Parents. Representative for New York City — Parents

Department of Education and District — DOE

- School Psychologist – Served on C.S.E.at Meeting of 5-7-13 — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 30, 2014

Esq. Attorney Associated with Attorneys for Parents. Representative for New York City — Parents

Department of Education and District — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 5, 2015

Parent of Student — Parents

Esq. Attorney Associated with Attorneys for Parents — Parents

Program Director and Principal at. Representative for New York City — Parents

Department of Education and District — DOE

I.E.P. Teacher and Provider Assigned to — DOE

The Matter of , (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York, first on December 19, 2013 for the purpose of determining the Pendency program to which the Student would be entitled during the course of this administrative proceeding, and thereafter on September 22, 2014, October 30, 2014, and February 5, 2015 for hearings on the merits – although it should be noted that a hearing had been scheduled for March 27, 2014, but was adjourned at the request of District due to the unavailability of witnesses; and the hearing conducted on September 19, 2014 was limited to the receipt of testimony from only one District witness, as the District’s next proposed witness became unavailable, requiring that the hearing be adjourned until October 30, 2014, and that the hearing conducted on the adjourned date of October 30, 2014 was again adjourned without the receipt of testimony, as the expected witness for the District was again unavailable to testify. The matter was then adjourned to November 5, 2014, only to be again adjourned due to a schedule conflict by Parents’ attorney. The hearing was finally concluded on February 5, 2015, when District produced its final witness and rested, followed by the Parents’ case-in-chief.

The undersigned had been appointed by the Impartial Hearing Office of the Department of Education of the City of New York to preside over this matter, after the recusal by one or more previously-appointed Impartial Hearing Officers, on October 30, 2013. After the close of the testimonial phase of the hearing on February 5, 2015, Parents’ attorney and. District’s Representative both waived Closing Statements and Post-hearing briefs. The Transcript of the final date of hearing was received on March 23, 2015, whereupon the Record was Closed.

The proceeding was initiated by Parents by the filing, by Parent’s attorneys,

., of a Due Process Complaint Notice, dated October 22, 2013 and received by the New York City Department of Education’s Impartial Hearing Office on the same date (Exhibit A). Parents allege in their Due Process Complaint that District and its Committee on Special Education (C.S.E.) failed to offer Student a free, appropriate public education (FAPE) for the 2013-2014 school year, by failing to properly prepare, on both procedural and substantive bases, an appropriate Individualized Education Program (I.E.P.) for the 2013-2014 school year. Indeed, my review of that Due Process Complaint discloses that such lists twenty-six specific areas wherein the Committee failed to act appropriately. As a result of District’s alleged failures,, Parents unilaterally continued Student’s placement at for the 2013-2014 school year. In this proceeding, Parents seek reimbursement to them of monies paid by Parents to for the cost of such unilateral placement (Exhibit A).

Student is presently age, having been born on . However, at the time District’s Committee on Special Education (C.S.E) met to plan Student’s program for the 2013-2014 school year, May 7, 2013, Student was old. According to the testimony of her mother, Student appeared to be and was provided by with services. When Student reached the age of , District’s Committee on Preschool Special Education (C.P.S.E.)

provided that Student receive special education and related services at ( ) (T.R.230-231). At the age of , Student began her attendance at ( ). Student has continued to receive her educational program at since that time and continues, to this date, to do so.

There is meager documentation in the Record before me that details Student’s deficiencies or her special education needs. In the Individualized Education Program (I.E.P.) under review in this proceeding (Exhibits 1 and G), there are reflected the findings of a Psychological Evaluation of Student conducted on November 10, 2010.

Such Psychological Evaluation, however, was not offered into evidence in this proceeding. The I.E.P. incorporates the reported findings of that evaluation, gleaned from the administration of the - – assessment that indicated that Student had a of ;a . of ; and a of . The Record does include the I.E.P. created by District’s Committee on Special Education on May 7, 2013 (Exhibits 1 and C), which states that Student is at the level, is capable of , has and , although displaying difficulty with . The I.E.P. also states that Student’s skills are at a level and that Student can . The Record confirms that those estimates were accurate and were based upon the reports of Student’s teachers and administrators as were provided to the Committee at its May 7, 2013 meeting, as well as the information contained in the School Progress Report prepared by Student’s teacher at during the 2012-2013 school year, dated May 6, 2013 – the day before the Committee meeting of May 7, 2013 (Exhibit D), and again confirmed by Parent’s letter of June 26, 2013 (Exhibit D).. Witness , the Principal of , provided a more global picture of Student’s needs and deficits, testifying that she had known Student for four years and that Student’s greatest deficits were in Student’s , which was , and her need for (T.R.162), as well as her (T.R.176).

District’s C.S.E. convened on May 7, 2013 to conduct an Annual Review and develop Student’s special education program for the 2013-2014 school year. Attending that meeting were Witness - who served as both District Representative and School Psychologist; Special Education Teacher ;

Teacher ; and Parent (Exhibit 1). Also participating by telephone were , who, according to Witness identified herself as a chief liaison at ; and Principal . The Committee prepared an I.E.P. that classified Student as having an and proposed that Student receive her special education program for the 2013-2014 school year in a Class in a School having a staffing ratio of , together with the Related Services of / times per week, minutes per session, ; times per week, minutes per session, ; and , times per week, minutes per session, (Exhibit 1). To meet Student’s needs, including Student’s , and , the I.E.P. provided that Student be provided with ;

; ; ; the employment of a approach; as needed; as well as . It was further found by the Committee that, while Student’s delays were and precluded her from participating in a curriculum, Student was able to participate in any appropriate activity. District thereafter, by letter dated May 30, 2013, offered Student placement in a

Class, together with the recommended Related Services, at

(Exhibit 2).

Parent testified that she visited the proffered placement in June of 2013, after which Parent wrote to District’s Committee, advising that she found such proffered placement to be inappropriate for Student (Exhibit D), and, while rejecting such placement, would be interested in other options, but that, failing any other options, would continue Student’s placement at for the 2013-2014 school year and seek reimbursement for the tuition, costs and expenses of such program. As noted, on October 22, 2013, Parents commenced this proceeding, again requesting reimbursement (Exhibit

A).

It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parent’s claim.

Such prerequisites were established by the United States Supreme Court when considering claims for reimbursement brought by parents who had unilaterally placed their disabled child in a private facility. (School Committee of the Town of Burlington v.

Departm ent of Education, M assachusetts, 471 U.S. 359 (1985); A pplication of a Child with a Disability , Appeal No. 01-052). Further, it was later held that the fact that the facility selected by the parent to provide special education services to the child had not been approved as a school for children with disabilities by the state agency would not be dispositive of a parent’s claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). In both decisions, the Court noted that:

“Parents who unilaterally place a student

in a private educational facility … do so

at their own financial risk”

(see 471 U.S. 359 at 373)

Further pronouncements made thereafter by various courts expanded the concept of reimbursement to one of prospective tuition authorization (Connors v. Mills, 34 F. Supp 2d 795 (N.D.N.Y. 1998) and even to retrospective tuition payment (Mr. and Mrs. A. v.

New York City Department of Education, Civ. 09-5097 (S.D.N.Y. 2011). However, in all of the decisions expanding on reimbursement, the Burlington Prerequisites were maintained.

Burden of Proof

Generally, in applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented, that I first determine whether or not the School District offered to the student a free, appropriate public education. The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404). Under the guidelines established by Burlington and Carter, should I determine that District offered Student an appropriate educational program, my inquiry into Parents’ request would cease at that point, for if a district has offered an appropriate program, a parent’s right to the requested relief must be denied. Under the same guidelines, if it is determined that District failed to establish the appropriateness of its program, I must then determine the appropriateness of the Parents’ unilaterally-selected educational facility. The burden of establishing such appropriateness rests upon Parents (N.Y.S. Education Law §4404).

Should Parents fail to establish the appropriateness of the unilaterally-selected facility, Parents’ request for relief must be denied. If the unilaterally-selected educational facility is determined to be appropriate, I must, because the awarding of any relief is possible only by an invocation of the equitable powers inherent in the proceeding, then review the equities in order to determine whether equitable considerations favor an award of any relief to the Parents. It is my determination that the burden of establishing that such equities favor an award of tuition reimbursement or, as here, other relief, rests upon

Parents.

DISCUSSION

Essential to any determination of an entitlement to reimbursement is whether the agency responsible for a student’s education provided that student with a free, appropriate public education (FAPE). But what, exactly is a free, appropriate public education?

Courts on various levels and quasi-judicial officers have, through the years, expressed differing guidelines for determining exactly what FAPE is and how such is to be determined. It has been stated that a FAPE is offered to a student when (a) a board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (CSE) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). However, such statement is no longer exactly accurate, for, while school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at *4 [2d Cir. Jan. 16, 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb.

9, 2007]). Under the IDEA as amended, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the Parent' 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 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H.

v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v.

Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

It has also been stated that an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R.

§ 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.

93-9).17 The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see P. v. Newington Bd. of Educ., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). A school district may be required 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 also20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S .C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v.

Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving Parent" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). It is this last requirement – that the IEP must be "reasonably calculated to provide some 'meaningful' benefit" - that will guide my review in this matter.

As noted, District bears the burden of establishing that it offered Student a free, appropriate public education (N.Y.S. Education Law §4404(1)(c). District presented the testimony of Witness the Committee’s School Psychologist, who had presided over the meeting of May 7, 2013 in which the contested I.E.P. was developed, as well as the testimony of , the I.E.P. teacher and ( ) provider at .

Witness described the manner in which Student’s I.E.P. was prepared after identifying the participants at the meeting. Substantial time was spent by both representatives on the issue of the amendment of Student’s previous classification as to Student’s current classification of having an . However, the appropriateness of such latter classification was not raised as an issue in Parents’ Due Process Complaint. Rather, the Complaint raised the issue that such altered classification was made without proper re-evaluation of Student. It is my finding and determination that such new classification was appropriate in light of Student’s , as was confirmed by the Evaluation of 2010, wherein Student’s was reported as . The fact that prior Committees had, even after receiving the results of such evaluation, deemed it appropriate to classify Student as having a , does not diminish the findings by the Committee on May 7, 2013, as such was appropriately based upon such reported level of and fully met the criteria of such classification. As described by such witness, while Student’s deficits still required the provision of / , the current classification more appropriately described Student’s primary disability.

I deem it unnecessary to review each and every objection to the creation of Student’s I.E.P. as are put forth in Parents’ Due Process Complaint. I credit the testimony of Witness as accurately describing the actions and considerations made by the Committee in ascertaining Student’s Academic Present Levels of Performance, as well as her Management and Social/Emotional Needs. I also find that the Annual Goals and Short Term Objectives contained in the I.E.P., while sparse, satisfies the need for such; especially in light of Student’s abilities. The other challenges to the appropriateness of the Committee‘s actions at the May 7, 2013 meeting I find to be without merit or, even if established, would not rise to the level of denying Student a free, appropriate public education (8 NYCRR 200.5(j)(4)(ii)).

I do have concern with the recommendation that Student receive her special education program in a Class in a School having a staffing ratio of , given the nature and degree of Student’s educational deficits. Testimony supplied by the Principal of Student’s program at indicated that Student’s was that Student received her “…

” (T.R.168), i.e., and Student’s

instruction was provided (T.R. 168). Despite such instruction, Student, at the age of , was found to be at a level and performing in at a level (Exhibit C). While Witness was of the opinion, after reviewing Student’s I.E.P., that Student’s placement at was appropriate and that the special education teacher in the proposed classroom would be able to individualize instruction in a manner that would enable Student to receive an appropriate education, it is my finding that Student’s needs are that such could not appropriately be addressed in a educational setting.

It is, therefore, mu finding and determination that District has failed to establish hat it offered Student a free, appropriate public education for the 2013-2014 school year.

Having made such determination, it is necessary that I review the educational program unilaterally selected by Parents for Student for the 2013-2014 school year at . That program was described by Principal as being a special education program located within a building housing a program of some students. While Witness was directed to a Program Description of that Parents had placed in to evidence (Exhibit E) and was asked if such described the program during the 2013-2014 school year, to which she responded in the affirmative, I note that such Program Description related to the School and not the program in which Student had been enrolled (See Exhibit F, which shows Student’s Daily Schedule School during the 2013-2014 school year). Witness described the class in which Student was placed as having students, , and that the student were likewise composed of . Witness described her involvement with Student’s program as being responsible for working with Student’s teacher and classroom assistants, although Student had teacher for portion of the program and another for portion of the school day, while each teacher had both an assistant and (T.R.166). According to her testimony, Student made progress throughout the school year in , noting that Student began the school year in at level and ended the year at a level, while in , Student began the school year at a level and ended the year at an level (T.R.208). Similar reports were provided by Principal related to Student’s progress in her and skills (T.R. 161). It appears that all such reports of progress were based on teacher estimates and not on any objective assessments or material. While I must rely upon the testimony of Principal for a description of Student’s programs and successes, as none of Student’s teachers or assistants provided any testimony in this proceeding, and while Principal ’s estimates on Student’s progress appear somewhat self-serving and optimistic, in light of the fact that Student has been in such program for a number of years without apparently making much progress, it is my finding and determination that the program unilaterally-selected by Parent s for Student for the 2013-2014 school year was appropriate to basically meet Student’s special education needs and provide her with some educational benefit.

Having made such determination, I now must consider whether equitable considerations favor an award of reimbursement to Parents for such unilateral placement.

Initially, it is noted that, according to the Tuition Contract received in evidence and signed by Student’s father (Exhibit L), Parents obligated themselves to pay the sum of

- ( ) Dollars for Student’s attendance at for the 2013-2014 school year. However, according to the Affidavit of Dr. (Exhibit

T), Parents have made a total payment to , either by Parents or on their behalf, of only ) Dollars. If payment were to be awarded for reimbursement only, - which is the only relief sought in Parents’ Due Process Complaint - such would of necessity be limited to that sum. However, as previously noted, some courts have expanded that reimbursement concept to direct retrospective payments of tuition to the school that provided such program (Mr. and Mrs. A. v. New York City Department of Education, Civ. 09-5097 (S.D.N.Y. 2011). I shall do likewise, and my reference to reimbursement shall equally apply to the concept of direct retrospective payment..

It is clear that equitable considerations are relevant to fashioning relief under the provisions of the Individuals with Disabilities Education Act (IDEA) (See Burlington v.

Board of Education, 471 U.S.at p. 374). Further, in fashioning such relief, I must consider all relevant factors, including the appropriate and reasonable level of reimbursement.

Specifically, the IDEA provides that reimbursement may be reduced or denied when parents fail to challenge the appropriateness of an I.E.P. in a timely manner or upon a finding of unreasonableness with respect to actions taken by parents. (20 U.S.C.

§1412[a][10][C]). Under the provisions of the IDEA, reimbursement may be reduced or denied if Parents fail to provide notice of the unilateral placement either at the most recent

C.S.E. meeting prior to removing the student from public school or by written notice ten business days before such removal that they were rejecting the placement, including stating their concerns and their intent to enroll their child in a private school at public expense (20 U.S.C.§1412[a][10][C][iii][I]. While Parents did provide District with timely notice (Exhibit D), I find that such was inadequate. After visiting the proffered site,

Parent wrote that the proffered placement was not appropriate, listing the reasons for such. – but making no challenge to the I.E.P. nor identifying any concerns with the I.E.P.

Such concerns with the I.E.P. were first raised in the filing of Parents’ Due Process Complaint on October 22, 2013. Thus, and in accord with the Decision of the Office of State Review, dated February 11, 2015, in determining Application of a STUDENT WITH A DISABILITY, Appeal No. 14-162, it is my finding that appropriate relief should consist of direct funding of Student’s tuition for the 2013-2014 school year, beginning on October 22, 2013 and continuing for the remainder of that school year, resulting in a deduction of or of the charged tuition of – or

( ) Dollars.

I find further that Student’s program, at for the 2013=2014 school year included - minute period of Instruction ( ) on per week of the program. As did Impartial Hearing Officer in deciding Case # (Exhibit B), on which Pendency in this proceeding was based, I find that, as Student cannot , the rationale for such classes suggests that they provide little more than basic instruction and that, as such, that portion of the day is non-reimbursable. As the school day runs from to days a week (Exhibit F), I find that the non-reimbursable portion of the day is of the school day. Accordingly, I reduce the amount to which Parents are entitled as direct payment to to also be reduced by percent, or the sum of

( ) Dollars.

Further, I consider, as a matter related to my consideration of equitable factors, the obligation of Parents, when seeking reimbursement or direct funding, to bear the burden of establishing that Parents were unable to prospectively pay the required tuition to before seeking relief (Connors v. Mills, 34 F. Supp 2d 795 (N.D.N.Y. 1998). Indeed, it was for this very purpose that Parents introduced into evidence a copy of what was purported to be their Federal Income Tax Return ( ) for 2013 (Exhibit N).

Further, Parent provided sworn testimony regarding this exhibit and the financial factors involved in the preparation of that document. It is my finding, however, that such Tax Return is, in fact, a fraud and that Parent’s testimony is not worthy of credit. Parent testified that she is employed as and was so employed in prior years (T.R. 246).

Parent further testified that she earns “ - ” (T.R.255), although Parent noted that, during 2013, she might have earned less “

”(T.R. 255). However, Parents’ 2013 Tax Return shows a total in wages or salaries as - , ( ) Dollars. Parent confirmed that Husband was a salaried employee, but professed, under oath, that she did not know what salary her husband earned (T.R.255). To assume that such salary was less than ( ) Dollars begs credulity. I note further that, while both parents are employed and receive W-2’s, there is no entry whatsoever for Federal Taxes withheld. Parent further testified that and that both attend private schools and that Parents are obligated to pay – and do pay - for their tuition (T.R.252-253). Parent testified that she was uncertain of the amounts of such tuition for , as her husband takes care of tuition (T.R.257), but estimated that was in the neighborhood of ( ) Dollars and the other in the neighborhood of ( ) Dollars – totally other tuition in the amount of ( ) Dollars. While it is of no concern of mine whether Parents defrauded the United States Government of taxes by filing a false return, I am most concerned that such form should be submitted in this proceeding as a true document in furtherance of their seeking equitable relief afforded by the provisions of the IDEA.

It is my finding and determination that, in light of such finding, equitable considerations require that Parents’ application for reimbursement or direct funding of their unilaterally-selected placement for Student for the 2013-2014 school year be reduced by - of such tuition, or ( ) Dollars.

As noted, the tuition charged by for the 2013-2014 school year was in the amount of - ( ) Dollars. From that amount I have deducted the sum of ( ) Dollars for failure to timely advise the District of the claimed defects of the I.E.P., as well as the sum of ( ) Dollars for the non-reimbursable Instruction

( ), as well as the sum of ( ) attributable to the fraudulent Tax Return submitted by Parents. Such deductions leave a balance of ( ) Dollars due to . However, as evidenced by the affidavit submitted by Dr. (Exhibit T), has already been paid by the New York City Department of Education the total sum of

- ( ) Dollars. Thus, no further payments

are due to \ nor will reimbursement be allowed to Parents for any sums paid by, or on behalf of, them.

ORDER

Based upon the above review, it is

HEREBY ORDERED that District and the New York City Department of Education are relieved of any further obligation to reimburse Parents or to directly retrospectively pay for the unilateral placement by Parents of Student at for the 2013-2014

school year

Dated: March 13, 2015

.

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 DECEMBER 19, 2013

A. Parents’ Due Process Complaint Notice, dated 10-22-13 (5 pages; Parents)

B. Findings of Fact and Decision of Hearing Officer, dated 5-3-12 (11 pages; Parents)

DOCUMENTATION ENTERED INTO RECORD SEPTEMBER 22, 2014

D. Letter from Parents to and, dated 6-26-13 (2 pages; Parents)

E. School Program Description (1 page; Parents)

F. Student’s Daily Schedule at during the 2013-2014 school year (1 page; Parents)

G. Related Service Student Progress Report, dated 5-6-13, by / (2 pages; Parents)

H. School Progress Report by, Student’s Teacher at, dated 5-6-13 (1 page; Parents)

I. Goals for Student, undated (1 page; Parents)

J. Student’s Goals at (1 page; Parents)

K. Letter from School, dated 3-11-14, Regarding Student’s Attendance during the 2013-2014 school year (1 page; Parents)

L. Tuition Contract with School, dated 9-3-13, signed by Parent (1 page; Parents)

M. Affidavit of Dr., sworn to on 3-10-14, Regarding Tuition Payments (1 page; Parents)

N. Copy of Parents’ 2013 Federal Income Tax Return, ( ), dated 3-10-14 (2 pages; Parents)

O. Student Progress Report, dated Spring 2014 from (3 pages; Parents)

P. Progress Report, dated June 2014, by S., (1 page; Parents)

Q. Progress Note, dated 6-22-14, by, 3 Student Progress, dated January 2014, from Parents (1 page; Parents)

S. Student’s Record of attendance at for the 2013-2014 school year (1 page; Parents)

T. Affidavit of Dr., sworn to on 3-10-14, Regarding Tuition Payments (1); Copy of Check To from Parent, dated 122-12-13 (1); Affidavit of, sworn to on 3-26-14 (1); Affidavit by Parent, sworn to on 3-26-14 (1); Copy of Statement of, for 1-23-14 (1) (5 pages; Parents)

1. Student’s I.E.P. as prepared by District’s C.S.E., dated 5-7-13 (13 pages; DOE)

2. Final Notice of Recommendation, dated 5-30-13 (1 page; DOE)

DOCUMENTATION ENTERED INTO RECORD OCTOBER 30, 2014

None

DOCUMENTATION ENTERED INTO RECORD FEBRUARY 5, 2015

None