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: February 27, 2015

April 15, 2015

April 17, 2015

April 23, 2015

Actual Record Closed Date: May 25, 2015

Hearing Officer: Daniel Ajello, Esq.

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

Attorney (Via Telephone) — Student

District Representative (Via Telephone) — DOE

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 15, 2015

ESQ., Attorney — Student

District Representative, Committee on — DOE

Special Education Region — DOE

School Psychologist, (Via Telephone) — DOE

Assistant Principal, (DID NOT TESTIFY) — DOE

District Representative, Committee on Special Education Region — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 17, 2015

Esq., Attorney — Student

Clinical Director (Via — Student

Telephone) — Student

(Via Telephone) — Student

(Via Telephone) — Student

DR., Director (Via Telephone) — Student

Teacher (Via Telephone) — Student

District Representative — DOE

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 23, 2015

Parent Advocate — Student

Parents

Attorney — Student

District Representative — DOE

District Representative — DOE

INTRODUCTION

On 01/15/2015, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).

A hearing was conducted and appearances made by the parties as indicated herein.

Pre Hearing conference was held on 02/27/2015. Date was originally set as the commencement of the hearing. However, the IHO suffered an injury and could not travel. Parties agreed to conduct a pre hearing conference to move the matter forward. Parties discussed scheduling and parent attorney requested the IHO recuse himself, contending the matter may be delayed by the IHO injury. Department of Education (DOE) did not join in the request. Request was denied. (T 22)

Ultimately the matter was scheduled as quickly as possible based upon scheduling considerations as agreed to by the parties. (T 5-19)

Appended to the record are lists of persons in attendance and the documents received in evidence.

On 02/27/2015 the DOE made a motion to extend the compliance date by 30 days to allow for availability of witnesses. Motion was granted and compliance date was extended to 04/27/2015. (IHO Ex IV)

On 04/23/2015 parties made a motion to extend the compliance date by 30 days to allow receipt of the transcript and allow for time to submit additional documentary evidence as well as a closing memorandum. Motion was granted and compliance date was extended to 05/27/2015. (T 364-365, IHO Ex VII)

On 05/12/2015 parties made a motion to extend the compliance date by 30 days to allow receipt of the transcript and allow for time to submit a closing memorandum.

Motion was granted and compliance date was extended to 06/08/2015. (IHO Ex VIII)

This matter was instituted by the impartial hearing request dated 01/15/2015 alleging that the Department of Education (DOE) failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement for the student, for the 2013-2014 and 2014-2015 school years. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2013-2014 and 2014-2015 school years. (Ex A 1)

Relief sought includes:

Funding of student tuition at the for the32014-2015 school year;

A determination the student requires with a higher teacher student ratio;

A deferment to CBST for non public school placement;

A P-4 letter foe compensatory at DOE expense as enhanced rate;

An in all classes at DOE expense at enhanced rate;

A evaluation at DOE expense at enhanced rate;

/ at DOE expense at enhanced

rate with licensed ; and for remediation for by licensed at DOE expense at enhanced rate;

Compensatory at DOE expense at enhanced rate;

A determination the student should have received as a related service on her

06/11/2014 IEP;

Compensatory at DOE expense at enhanced rate; DOE expense at enhanced rate;

An and integration evaluation at DOE expense at enhanced rate;

A evaluation at DOE expense at enhanced rate;

Parental reimbursement for student evaluations at the enhanced rate;

An Evaluation at DOE expense at enhanced rate.

(Ex A 3-4)

evaluation has been completed. (T 345 & 348, Ex H)

Requested in all classes at DOE expense at enhanced rate is no longer an issue since the Student does not use an at , where the class utilizes

. (T 189)

Parties agreed that the student was in need of the following evaluations. A Psychoeducational evaluation, a , an , and a evaluation. (T 358-359 & 361)

BACKGROUND

Student IEPS provided the following information

Student is currently years old and attending .

IEP of 05/22/2013, conducted at the end of for the upcoming school year, included: level of , level (Ex 27-1)

recommended a program in a School District, with ( ) for for and periods for , and related services of ( time in the classroom) and and ( times in a group of students in a separate / room) for the 2013-14 academic school year, for individual use full time on a in the classroom (Ex 27-8), level of the student at for and (Ex 27-12). IEP reflected standard promotional criteria for the current and following school years. (Ex 27-13)

IEP of 06/22/2014 conducted at the end of for the upcoming school year, included: level of N, level (Ex 1-1)

recommended a program in a School District, with times for in a separate and times in the classroom; times in a separate and times in the classroom, as a related service time in a group session in a separate and; and times , daily as needed (Ex 1 6-7), and level of the student at for and (Ex 1-10). IEP reflected standard promotional criteria for the current school year and modified promotional criteria for the following school year. (Ex 1-11)

THE PARENT’S POSITION

( ) presented the parent’s position at hearing, and via closing brief. (IHO Ex IX)

clarified that the P-4 letter for services actually related to the 2012- 2013 school year and related appeal. (T 80, Ex 5)

contends the referred to in the IEP was never actually delivered to the student. (T 80)

PARENT WITNESS

( ) reviewed her educational and professional background and testified as the Clinical Director of . (T 169-171)

The student came to in September of 2014, “

” (T 171)

Student at first was very quiet, very withdrawn, anxious and internally preoccupied. (T 172)

Student was picked up for a weekly session, of and a social skills class. (T 172) Due to concerns about student is seen at the end of each day. (T 173)

This lasted for to weeks and now the student is seen on an as needed basis. (T 173)

A is technique that helped the student. (T 174-175)

described the school wide in which the student participates. (T 175-176)

Student’s class has , teacher, and or assistant teachers, depending upon the class. (T 176)

tuition is for the school year. (T 176) Parent is responsible for tuition payment. (T 177)

Since coming to the school student is less anxious, makes eye contact, developed a wonderful relationship with her counselor, raising her hand asking for help, and working cooperatively in groups. (T 178)

“The accepts students who have at least low average IQ all the way up to superior IQs who have learning--who may have learning disabilities and/or emotional concerns on the level of fragility.” (T 179)

Student needs met at “require the level of therapeutic support that we provide for her within an appropriate academic environment that provides her with the academic supports that she also needs… it appears to me in my professional opinion that she's already participated in programs that are considered to be less restrictive and not succeeded…and therefore, they have not met her needs because we see her succeeding here with the supports that we have in place.” (T 180)

Student in the school have classifications that include: “

” (T 185)

Some students at do not have IEPs. (T 186)

Student curriculum includes common core. (T 187)

Student receives and weekly and takes part in a class pragmatics class weekly. (T 187)

Student does not use an as the class utilizes . (T 189)

PARENT WITNESS

( ) reviewed her educational and professional background and testified as a employed by the . (T 192-194)

described services. “

” (T 194)

provides services to the student at . (T 195)

Student has

. (T 195-196)

services would not be appropriate for the student due to classroom setting background noise and distractions. (T 196)

recommends services for that she seems to benefit the student. (T 196-197)

Classroom system helps address in the classroom by amplifying sound of what is said by the teacher. (T 197)

sees the student weekly for sessions. (T 198)

“

” (T 199)

Progress this school year is noted by student understanding information like main idea and some improvements in sentence structure for expressive . (T 200)

are used to help her put information in sequence. (T 200)

was asked to review the goals of the 06/12/2014 IEP. states that the first goal (examine a topic and convey ideas) would be difficult to address as a services. “I mean she has underlying deficits that need to be addressed, so this goal would be very difficult for her to meet--” (T 202)

Referring to the second goal (compose followed by a written summary of a paragraph): “I think the goal itself with is beneficial…but in a session it would be really difficult because…if the teacher is not working on a paragraph or a story at that time, it would be difficult to address that because that specifically says here…that it's a written summary she has to go by. So if it's nothing--that's not being presented, then we can't really do that at that moment.” (T 203)

notes that both goals relate to expressive and there is no receptive goal. (T 204)

was asked to provide testimony regarding the and Progress Report of 06/12/2014. (Ex Y)

does not agree with the statement set forth that “ ” notes that is a deficit currently being worked on this school year. (T 206, Ex Y)

also does not believe services are appropriate. (T 207)

does not believe a program is appropriate for the student due to the overall distractions of the classroom, the expectations are very difficult, she needs a lot of time processing information, and her underlying expressive and receptive deficits cause her difficulties to follow and keep up. (T 207

PARENT WITNESS

( ) reviewed her educational and professional background and testified as an at the , who treats the student.

(T 215-216)

began working with the student as a result of informal observations and information regarding her in the school. (T 217)

At the beginning of the ye4ar: “I observed that when she was working at the desk she would work with her head close to the--her work…I also observed that she worked at a slow pace. That was really my main concerns.” Concern was perceptual skills, the ability to process the input, organize it and respond accordingly. (T 218)

is working on the student’s “

” (T 219)

Student had an evaluation and was approved for to receive a . Keyboarding skills are essential for her academic success. (T 219)

is provided to the student for a session. (T 220)

believes the current services are meeting the student’s needs. (T 229)

is in the student’s class weekly to address handwriting skills using the program. (T 220)

Progress is noted in the student’s handwriting. (T 221)

Student is also provided with perception tasks which may include tracking and scanning as well as a program with specific eye exercises.

These tasks benefit the student

believes the student’s most recent IEP should include . supports her skills which can enable her to succeed in school. Student currently requires .

(T 223-224)

detailed why she believes the student has .

This included a history of

. (T 226-227)

PARENT WITNESS DR.

( ) reviewed her educational and professional background and testified as the Director of . (T 231-232)

evaluated the student in February of 2015, as directed by the DOE, and provided an outline of her report. (T 232, Ex G)

recommends remediation on a to basis at a learning center or in the , after the school day. (T 232-233)

Without remediation the student will continue to struggle. (T 233-234)

states it is critical for the student to receive “ -on- support particularly with the methodology. I think it would be most optimal if it was done -on- outside of school, again here after school and/or on the . I think having additional support at school could only help her, but I don't think that's the only solution. I do think it's critical that she receives this -on- support.” (T 237)

Having dealt with similar students recommends “

” (T 238)

charges per . (T 238)

PARENT WITNESS

( reviewed his educational and professional background and testified as a teacher at the . (T 241-242)

is the student’s homeroom, , , and teacher

at . (T 242)

In September the student “…She presented as someone who would isolate herself. She presented as a student who to be honest came in with a lot of baggage from previous experiences, and what I mean by that is she was-- she would refrain from taking any risks during class. She would resist any assignment that presented as difficult to her, even if her skills were able to achieve the desired result, she really resisted in particular to or . That took months to, you know, build up her self confidence because her confidence in terms of her own self was very low socially, academically, and emotionally. She presented as an emotionally--

.” (T 243)

uses approaches to instruction which includes a

, , ,“ ”. (T 245)

Upon entering the student was not on a level in any subject. (T 246)

Asked if the student has made any progress: “I've seen improvements, and I think what we've been doing this year has been working for her. But, you know, again as her homeroom teacher, I would want her to continue this progress, and I think for her the best way to do that is to remain in an environment where she feels all of the supports, not just the

” (T 247)

and are the student’s biggest struggles. Student is in a class of with . “remains--she shies away from those opportunities because of her lack of self esteem. So you know, I've seen progress and I think she--the most important piece for her is for her to feel like she's capable, but again it's very much a work in progress for her.” (T 243)

Students in the group are grouped academically and with a social emotional piece. (T 249)

Student requires a . Even with the it took months for the student to feel comfortable. “And my biggest fear for her if she were removed from this environment would be that she would return to that place of feeling terrible about herself and feeling like she can't perform, you know, up to the expectations.” (T 251-252)

Academic deficits included: she was basically a non writer did not understand the process of , was similar and she struggled in . (T 252-253)

Progress is noted in student willingness at times to read , and in is more able to . (T 253-254)

A program is used to assist students which breaks down to a simple strategy. (T 254)

instruction is individualized based on student needs. Student is “…in students of a similar profile, similar reading level and ability as well but instruction is geared towards her specific needs.” (T 255-256)

A program was not working for the student. (T 256-257)

When asked about a class size of for the student witness responded: “…I couldn't think of a worse environment for her…She is someone who requires a lot of emotional support as well as academic support, so it's kind of twofold for her. She's not someone who is put together emotionally and therefore we can just focus on the academic support and maybe that could be provided…In our small setting I see how much support she needs and that's in a , you know, depending on her reading group and she, you know, has seven students. So a class of would not be the place for her.” (T 258-259)

“…I think this environment is absolutely the last restrictive for her because of, you know, the turnaround that we've seen in really all areas.” (T 258)

Student progress is reflected in progress report. (T 259-260, Ex J)

Instructional support of the student includes: “in terms of her expressive language…in the small environment she needs somebody who is constantly checking in with her to support her emotionally, you know, to make that a short summary. That's what we do throughout the whole day every class for her. Academically she benefits from the system that we use within the room.

Because of her difficulties in processing and understanding directions, especially multistep directions…(T 260)…In terms of her , she requires a very specific instruction…she needs such emotional support, you know, to highlight or to improve all of these areas.”(T 261)

Student “ ”(T 261-262)

“…in terms of becoming …either myself or the assistant in the room will…

. We have a point

card system in our school which is a foundation of our motivational system within our school…it's really in a way it's assessing their overall

…” (T 262)

“…The is very helpful…because she feels good about you know, which remains on her desk in every single class also is beneficial to her.“ (T 263)

Directions are given to the student and student has checklists laminated on her desk for areas that are the biggest directions throughout the day. (T 263-264)

Student attendance is described as average. (T 267)

Student functions at a level below other students in and . (T 267-268)

PARENT WITNESS

( ), identified herself as an advocate for the student and the student’s grandmother. (T 282-283)

recalls discussions with DOE staff during the 2013-2014 school year. (T 284)

attended student IEP meetings for the past several years. (T 286-287)

attended the 05/22/2013 IEP meeting. describes the meeting as “complicated“ “everything spiraled completely out of control“ (T 287) “ mayhem” “people screaming” (T 288) and “hostile” (T 304). refers to having on the phone and leaving the meeting upset. “Before I left I said we need to reconvene this meeting because at this point it's just too much going on. We don't know exactly what we're here for. We needed to know did you have It was really bad.” (T 288)

was told if they left the meeting would continue. (T 289-290)

believes the student was having a hard time last year. (T 291)

In the student was considered , was coming

upset and could not always . (T 291)

attended another IEP meeting no 06/12/2014 through a phone conference.

(T 291-292)

recalls recommendations made at the meeting but not a consideration of a deferment to CBST. (T 292-293)

Evaluations were not discussed at the meeting. (T 293)

“

” (T 294)

asked about vision and was told the evaluation was too old. (T 295)

For 2012-2103 student did not receive services. (T 300)

PARENT WITNESS

( ), identified herself as the student’s mother. (T 309)

Student is described as being . (T 309)

Student received and had an IEP prior to entering

. (T 309-310)

Student began attending in and each year received a letter. (T 312)

attended the 05/22/2013 IEP meeting. (T 312)

describes the meeting as attended with . was confused and wanted the provider to attend. did not receive any progress reports. (T 313)

describes some confusion due to the pending appeal, parties were getting upset and was confused and seeking to reconvene. (T 314-315)

After the meeting received an IEP and progress reports. (T 315)

did not understand why she was told her child was making progress since the child was in working on material. (T 317)

received a P4 letter authorizing due to an appeal. (T 318)

Parent located a provider in March but did not get the form back from the DOE until May, at which time the provider was lost. (T 353)

Student did not receive for the 2012-2013 school year. (T 318)

Student did not have an for the 2013-2014 school year. (T 322)

Student reported to parent that for the 2013-2014 school year she had and wanted to be schooled. (T 325-326)

spoke with teacher at a parent teacher conference who advised her child was doing fine, yet student still received letter and continued to have difficulties. (T 327)

provided Dr. ’s reevaluation and evaluation to the school. (T 328-329)

Each evaluation showed deficits and was not discussed by the school. (T 329-330)

At the 06/12/2014 IEP meeting requested discussing Dr. ’s evaluation. (T 331-332)

In January 2014 parent received the DOE recommendation in that was presented at the June IEP meeting. (T 332-333, Ex V)

did not agree with the recommendation contained in the prior written notice of 01/10/2014 (Ex V), which was also contained in the IEP of

06/12/2014 (Ex 1). (T 333-334) IEP did indicate an increase in from to periods . did not understand why the was increased if the DOE continued to tell her the student was making progress. (T 347)

expressed to the school: “It was not appropriate for her. She has delay so any outside noise affects her ability to retain information and process

.” (T 334)

was told the student should be able to do the work. (T 334)

did not see any progress for the 2013-2014 school year and the student continued to fail. (T 335)

received student report card which did not indicate to her any progress.

“…the teacher comments she's still far below in , had promotion-in-doubt. Also I see ones in her all the way till June. Actually she degressed (sic) from March to June. So what they thought they were accommodating her with they weren't helping her.” (T 334, Ex X)

was not provided with any student test scores for the 2013-2014 school year, but is aware the student received “ “. (T 336)

sent notice to the DOE that she would be placing her child in a private school. Decision was made due to academic concerns for her child. (T 337-338, Ex C)

While at the sates that the student has increased confidence, is able to take risks to do work independently, loves going to school, is a happier child, “

” (T 339)

compared the class size at to the DOE class.

At : “She knows she has the support, and she's not afraid. She actually is able to express herself better in the fact that she can tell her teachers that I don't understand this problem. They're able to help her out because the classroom setting is so much smaller and they have teachers. She still gets that -on- attention that she needs when she has a little confusion on something. She's able to express that.” (T 340)

At the DOE placement: “ I'm asking for answers.” (T 340)

continues to believe the setting is not appropriate for the student. (T 341)

Parent responded to DOE letter asking for permission to test the student with handwritten notes as identified Exhibit MM. Notes indicate the student had been recently tested and to inform parent if additional testing is necessary. Parent did not consent to testing, but indicated to contact her if additional testing was necessary. (T 341-342) No one contacted about additional testing. (T 343)

took the student for testing at . Testing

showed “she needed intervention, she needed help. She still was behind severely. (T 344-345)

Student received an evaluation.

was recommended, but not received by the student. (T 345) believes a and was recommended. (T 348)

is responsible for the tuition, of about monthly.

income is monthly. Paying the tuition would present a financial hardship.

(T 346) has not made any payments towards the tuition. (T 349) does not have any assets upon which to draw and pay the tuition. (T 367) did engage in a contract with . (T 368)

DEPARTMENT OF EDUCATION POSITION

( ) District Representative, presented the DOE position at hearing and via closing statement. (IHO Ex X).

DOE contends the student was offered a FAPE for the 2013-2014 and 2014- 2015 school years and that the sought after relief should be denied. (T 38-39, Ex 27

& Ex

DOE contends that by the parent leaving the 05/22/2013 IEP meeting the parent exhibited a lack of cooperation with the DOE and such action shows there were no serious intentions to consider a placement in the public school at the time. (IHO Ex X-4)

DOE contends that by provided “a P-4 authorization to seek a private academic intervention services funded by the DOE…DOE was not informed until later in the year that...(student)…was not receiving services and that the parent was having any difficulty securing a provider via the P-4 authorization …(T

106)…(student)received an education throughout the entire academic school year 2013- 2014 and related services including additional academic interventions with a special education teacher…(T 82)” (IHO Ex X 7)

DOE contends the parental placement is not appropriate in that the student requires a larger setting “

“ DOE also points to lack of an at . (IHO Ex X 8-9)

DOE contends the has not been a showing of a legitimate financial obligation of the parent to pay tuition. (IHO Ex X 9)

DOE WITNESS

( ) reviewed her educational and professional background and testified as a DOE school psychologist. (T 43-45)

evaluated the student in March of 2011 and attended the May 2013 IEP meeting. (T 45, Ex 27)

reviewed the recommendations made at the IEP meeting based upon teacher input, teacher reports the and as well as evaluation. (T 47 & 71) Recommendations were made to support student areas of weakness. (T 73)

was recommended to be terminated. (T 74)

Student is described as little slow in . (T 48)

Parent attended the meeting but left in the beginning after calling her lawyer stating she was advised to leave the meeting. (T 72)

was aware that the student had a , was recommended to have a research based program, and had an diagnosis. (T 87)

For the 2013-2014 school year the student’s class had about . (T 90)

At the time there was a recommendation for for the student. (T 91)

also attended the 06/12/2014 IEP meeting. (T 76, Ex 1).

Parent declined to have test the student for the IEP. (T 77)

A P-4 for was issued and the school realized as the 06/12/2014 meeting was coming up that the services were never actually delivered. (T 82)

Student did not get for the 2013-2014 school year as mandated in the

IEP. (T 83)

believes the smaller class size recommendation was brought up and addressed at the 06/12/2014 IEP meeting. (T 116)

reviewed the IEP recommendations for the upcoming school year, including the increased services. (T 119-121, Ex 1)

was increase because they “ ” (T 121)

Student did make progress and increase in was related “…more of the fact of her going into , was more of the issue. If I am remembering right. I mean because overall she was making – I mean she might still be delayed, because she came in delayed, however, she did make progress, even…without the during her year.” (T 122)

notes the student received a letter and “

” (T 123)

did not defer the case the CBST. “We felt she was making adequate progress and despite certain things, absences and being late in the morning, not doing her homework and not getting the , yet you know she had made progress. And we felt that if she took advantage of everything we had to offer, she would excel. And I don’t feel that she needs such a, you know specialized type of setting. And I also think that the environment here she was doing well, socially, academically. I felt that it was -” (T 126)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and

(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct.

2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't.

of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June

10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[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'" (Walczak v. Florida

Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. 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 (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 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, 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]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; 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]).

The IDEA directs that, in general, an IHO'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, 142 F.3d at 130; 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 parents" (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 T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; 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). The student's recommended program must also be provided in the least restrictive environment (LRE)

(20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent.

Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo

Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428

[W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also 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).

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).

The burden of proof is on the school district during an impartial hearing, except that 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 York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

The parent bears the burden of proof concerning the appropriateness of their unilateral placement.

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364, quoting Rowley, 458 U.S. at 207 [identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-

65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115, citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010])

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents 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, 489 F.3d at 112; see Frank G., 459 F.3d at 364-

65).

Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373

F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y.

2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167

F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-

079; Application of the Dep’t of Educ., Appeal No. 07-032).

The IDEA allows that 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 student 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. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). 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

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement 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 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).

DOE IEP and PROPOSED PLACEMENT for the 2013-2014 and 2014-2015 SCHOOL

YEARS

DOE contends the student was offered a FAPE for the 2013-2014 and 2014- 2015 school years and that the sought after relief should be denied. (T 38-39, Ex 27

& Ex

IEP for the 2013-2014 school year included services in a classroom for periods weekly. These services were never delivered by the DOE. (T 82) DOE did issue an authorization for services relative to a prior appeal. (Ex 5)

DOE contends that by the DOE met its obligation, to some degree, by providing a P-4 authorization for private academic intervention services funded by the DOE.

(T 82 & IHO Ex X 7) However, these services were not actually approved until May 20th of 2014. (Ex 5) These services were useless in addressing student educational needs for the 2013-2014 school year, which only had a month left until its end.

Parent also correctly points to the DOE failure to provide the recommended as another indication of the DOE failure to deliver the IEP services to the student. (T 87-88 & 90, Ex 20-9)

Even if the IEP developed was appropriate, its recommended services were never delivered to the student, resulting in a failure by the DOE to provide a FAPE for the 2013- 2014 school year.

DOE points to the parent leaving the 05/22/2013 IEP meeting as in indication that the parent exhibited a lack of cooperation with the DOE and such action shows there were no serious intentions to consider a placement in the public school at the time. (IHO Ex X-

4) Any action of the parent at the meeting did not prevent the DOE from developing an IEP and failing to deliver the recommended services. Student did indeed attend the DOE recommended program and did not receive the recommended services.

I find the DOE failed to offer the student a FAPE for the 2013-2014 school year.

For the 2014-2105 school year the DOE offered witness.

reviewed the IEP recommendations for the upcoming school year, including the increased services. (T 119-121, Ex 1) states that the Student did make progress and increase in was related “…more of the fact of her going into , was more of the issue. If I am remembering right. I mean because overall she was making – I mean she might still be delayed, because she came in delayed, however, she did make progress, even…without the during her year.” (T 122)

The testimony of does not make sense when considers the student received a letter and “ ” (T 123) Student coming in delayed does not relieve the DOE of seeking to have the student progress. No indication of student progress is offered. testified to continued failure of the student and notices from the school regarding continued student difficulties. This included letters, report card and testing.

(Ex F, X, & 25)

No logical explanation is offered as to why the increased services were recommended. If the student was indeed making progress without the services why then would they need to be doubled?

did not defer the case the CBST. “We felt she was making adequate progress and despite certain things, absences and being late in the morning, not doing her homework and not getting the , yet you know she had made progress. And we felt that if she took advantage of everything we had to offer, she would excel. And I don’t feel that she needs such a, you know specialized type of setting. And I also think that the environment here she was doing well, socially, academically. I felt that it was -” (T 126)

refers to the student taking advantage of everything “ ”. (T

126) Exactly what that means relative to the student’s educational needs is not explained, nor is it reflected in the IEP. The student was unable to take advantage of everything the DOE has to offer since the student was already not receiving the IEP services.

Though the DOE contends the student was making progress the IEP moved the student from standard to modified criteria for promotion for the 2014-2015 school year.

(Ex 1-11) No explanation is offered as to how student progress resulted in lowering the student’s standard for promotion to the next grade.

DOE offers into evidence documents that point to a lack of student progress.

Educational testing of 05/17/2013, when the student was at the end of , indicates some scores at a level. (Ex 8) Other offered document show lack of progress. This includes: testing which reflects student levels of , while the student was mid way through (Ex 17); Academic form at the end of indicating a level (Ex 6); and at the end of that still generally shows student levels. (Ex O)

Parent provided evidence of insufficient IEP goals which went unopposed.

(T 195-196) Witness detailed student needs which were unaddressed by the IEP goals. (T 202-204)

I find that the IEP fails to provide for personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction and the IEP is not reasonably calculated to provide some meaningful benefit to the student.

I also find the parent was not afforded the opportunity to appropriately take part in the IEP meeting. The IEP does not reflect consideration of parent concerns nor parent involvement in creating the IEP. Prior written notice

IEP includes parent concerns and DOE responses contained within the IEP that include: a request for an outside evaluation, parent was told to write a letter (Ex 1-

1); a concern that the student is worried she is not doing as well as her classmates, DOE lowered her standard for promotion (Ex 1-2 & 1-11); and a request for an outside evaluation, parent was told to write a letter (Ex 1-2).

I agree with parent argument that the DOE failed to “discuss the parent’s concerns about…academic failure and social and emotional struggles at the June 2014 IEP meeting, the DOE Team failed to consider the parent’s updated educational testing or neuropsychological evaluation both of which were performed by Dr. Newman or the Huntington Learning Center evaluation which assessed…academic levels of functioning.” (IHO Ex IX-10) Instead the DOE lowered the standards for the student that was, in the DOE’s eyes, making progress and doubled the services she was to receive through .

The IEP does not accurately reflect the results of evaluations to identify the student's needs and does not establish annual goals related to those needs.

I find the DOE failed to offer the student a FAPE for the 2014-2015 school year.

PLACEMENT FOR THE 2014-2015 SCHOOL YEAR

Parent and witnesses detailed the services delivered to the student by .

This included testimony regarding the program in general and how it is specifically tailored to meet the needs of the student. Student “is part of our student body as well as part of our part of our and part of the class when I go in and work with a class to develop their individual contracts” (T 171)

also commenced, for the student, weekly

and a social skills class. (T 172-173)

Student’s class has , teacher, and or assistant teachers, depending upon the class. (T 176)

Student receives and weekly and takes part in a class pragmatics class weekly. (T 187) concerns are addressed, in part, by classroom . (T 189 & 197)

Student progress is noted in that the school student is

. (T 178)

described her services as they relate to the student.

These services appear to appropriately serve the student. (T 194-195)

Witness also points to the inappropriateness of the recommended for the student. (T 195-196) Instead, recommends services for that she seems to benefit the student. (T 196-197)

Witness detailed student needs and indicates progress with the services as they are delivered.

(T 199-200)

detailed observations of the student, her needs, and how they are addressed at . No opposition was made to the testimony provided, which I find credible. (T 218-220 & 223-224)

believes the current services are meeting the student’s needs (T 229)

and notes progress. (T 221)

teacher provided additional testimony regarding the stud ent’s services. Witness recalled student entrance to the program “

.” (T 243)

Witness detailed the type of educational services delivered tot eh student.

This included a approaches to instruction which includes a

, , ,“ ”. (T 245)

Witness details student progress in the program (T 243) and aspects of the student’s program in (T 249 & 253-254), (T 254) and (T 255-

256).

Witness testified that a program was not working for the student. (T 256-259)

Witness testified to Student progress as reflected in progress report (T 259-260,

Ex J) and detailed specific instructional support of the student for academics and

. (T 261-264)

Parent testified to student performance and experience at . I find her testimony credible and supportive of the program. While at the sates that the student has increased confidence, is able to take risks to do work independently, loves going to school, is a happier child, “

” (T 339)

I find the educational instruction at is especially designed to meet the unique needs of the student and is supported by such services as are necessary to permit the child to benefit from instruction.

For the 2014-2015 school year I find offered an educational program which met the student's special education needs and such placement is reasonably calculated to enable the child to receive educational benefits.

COMPENSATORY SERVICES

Parent seeks compensatory education for the student as part of the requested relief.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).

In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR .5[b][7][iii];

Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR .9[e],

200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04- ).2

As discussed above the Student did not receive IEP services for the 2013- 2014 school year and the student is not shown to have made progress during the school year.

I agree, in part, with the parent’s argument that “the DOE failed to appropriately implement…IEP to provide her with times for for a total of of per month per her 2013-2014 IEP.” “requests a total amount of for the deprivation of for the 2013-2014 school year at an enhanced rate not to exceed the usual and customary rate of providers in New York City of not more than per … evaluation demonstrates…deficits in which were the result of her attendance at . (Ex G.) Dr. recommends … of support in research based methodology in addition to remediation being received in school. (T 232-233, 237-238.) Dr. recommends support.

(T 237-239.) The parent requests… remediation allowed at an enhanced rate of per for a total of . (T 238)” (IHO Ex IX 22-23)

Testimony of was unopposed by the DOE. I find her testimony to be credible.

evaluated the student in February of 2015, as directed by the DOE, and provided an outline of her report. (T 232, Ex G) She recommends remediation on a to basis at a learning center or in the , after the school day. (T 232-233)

Without remediation the student will continue to struggle. (T 233-234)

Having dealt with similar students recommends “

” (T 238)

charges per . (T 238)

Student is currently receiving services at . Parent is awarded herein tuition payment, as detailed below. I find the student is entitled to some compensatory services, though not to the degree outlined by over years.

I find the student is entitled to services to make up for the failure of DOE for the 2013-2014 school year in the amount of hours to be utilized by August 31, 2016.

Services to be paid for by the DOE up to per .

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meetings and communicated her concerns to the DOE. (Ex 1 & 27) I do not find any evidence that the DOE was frustrated in any way to evaluate or deliver services to the student.

Parent shared testing with the DOE. (Ex 8 & 17)

Parent communicated concerns to the DOE. (Ex C, J, L, P, W & MM)

Though parent left the IEP meeting of 05/22/2013 the IEP was completed.

Parent seeks direct funding, or prospective payment, of tuition for the DOE.

Parent has the burden of establishing their inability to pay for the student's private school tuition (see Application of a Student with a Disability, Appeal No. 12-004; Application of the Dep't of Educ., Appeal No. 11-130; Application of the Dep't of Educ., Appeal No. 11-

106; Application of a Student with a Disability, Appeal No. 11-041). The parent provides a copy of four pages of their 2012 tax return, indicating 2012 income. No evidence is provided as to any 2013 income and resources available. Absent any evidence provided to further explain the parent’s financial capabilities and resources I decline to find that the parent has sufficiently established entitlement to direct funding of the student's tuition costs for the 2013-2014 school year (see Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-30 [S.D.N.Y. 2011]; Application of the Dep't of Educ., Appeal No. 12-070; Application of a Student with a Disability, Appeal No. 12-004.

tuition is for the school year. (T 176) Parent is responsible for tuition payment. (T 177)

is responsible for the tuition, of about monthly.

income is monthly. Paying the tuition would present a financial hardship.

(T 346) has not made any payments towards the tuition. (T 349) does not have any assets upon which to draw and pay the tuition. (T 367) did engage in a contract with . (T 368)

Parent provide tax information reflecting income of for 2014. (Ex OO)

Tuition contract provided as Exhibit QQ.

I find the parent is entitled to direct payment of tuition.

REMAINING RELIEF SOUGHT

Parent seeks deferment to CBST for non public school placement. This relief is moot for the school year in question and must be addressed as part of any future IEP meeting.

/ at DOE expense at enhanced

rate with licensed . No testimony was provided addressing this specific issue nor how it relates to the DOE failure to provide a FAPE for any specific time period.

and for remediation for by licensed

at DOE expense at enhanced rate. No testimony was provided addressing this specific issue nor how it relates to the DOE failure to provide a FAPE for any specific time period. is being addressed, at least in part, as testified to by through the use of the in class microphone system. (T 197)

Compensatory vision at DOE expense at enhanced rate. No testimony was provided addressing this specific issue nor how it relates to the DOE failure to provide a FAPE for any specific time period

A determination the student should have received as a related service on her

06/11/2014 IEP. Student is currently receiving appropriate service and this issue can be addressed at an IEP meeting.

Compensatory at DOE expense at enhanced rate. No testimony was provided addressing this specific issue nor how it relates to the DOE failure to provide a FAPE for any specific time period

DOE expense at enhanced rate. No testimony was provided addressing this specific issue nor how it relates to the DOE failure to provide a FAPE for any specific time period.

An and integration evaluation at DOE expense at enhanced rate. No testimony was provided addressing this specific issue nor how it relates to the DOE failure to provide a FAPE for any specific time period

Parental reimbursement for student evaluations at the enhanced rate. Insufficient information was provided regarding parent payment of any evaluation fees and any obligation of the DOE to reimburse the parent.

Therefore the above relief is denied.

ORDER

1. The DOE shall complete the following evaluations upon the student within 60 days of the date of this Order: Psycho-educational evaluation, a evaluation, an evaluation, and a evaluation.

2. The DOE shall directly fund hours of individual services provided to the student at a rate not to exceed per . Student may avail herself of the services from the date of this order through 08/31/2016.

3. The DOE shall pay tuition due for student attendance for the 2014-2015 school year in the amount of

4. DOE shall provide parent and with any required documentation and forms necessary to facilitate payment and/or reimbursement within ten days of the date of this order.

5. This decision is subject to appeal and review by the State Review Officer. Dated: June 9, 2015

DANIEL AJELLO, 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

ENTERED 02/27/2015

A Impartial Hearing Request, 01/14/2015, 5 pages

ENTERED 04/15/2015

B Omitted

C Ten Day Notice with Transmission, 8/25/2014 to 8/27/2014, 2 pages

D DOE Response to Ten Day Notice, 9/17/14, 1 page

E Evaluation Dr. , 8/4-8/19/2011, 19 pages

F notification, 6/14, 1 page

G Dr. - Evaluation, 2/3/15, 5 pages

H Evaluation, 12/11/14, 2 pages

I Addendum, 1/29/15, 5 pages

J Parent Request to School, 1/3/12, 2 pages

K Duplicate - Omitted

L Communication Regarding , 5/12 to 5/14, 2 pages

M Duplicate – Omitted

N Duplicate – Omitted

O Educational Testing Update, Dr. , 05/09/2013, 12 pages

P Emails with School Regarding Testing, 5/6/13 to 5/10/13

Q Findings of Fact and Decision, 10/21/14, 35 pages

R Evaluation, 3/20134, 2 pages

S Evaluation, 11/6/14 and 11/11/14, 8 pages

T Evaluation, 3/26/12 to 5/3/12, 6 pages

U Evaluation, 3/17/12, 3 pages

V Prior Written Notice, 1/10/14, 1 page

W Email Response to IEP Meeting Request, 1/17/14 1 page

X ’13-’14 Report Card, 4 pages

Y and Annual Report, 6/12/14, 1 page

Z Annual Report and - - Plan, 5/12/14, 2 pages AA IEP, 11/9/2009, 18 pages

BB Progress Report, 6/12/14, 2 pages

CC School - - to Parent for Evaluation, 6/13/14, 1 page

DD Annual Report, 4/28/14, 1 page

EE Due Process Response, 1/14/15, 3 pages

FF Report Card, ’14-’15, 2 pages

GG DOE Teacher Progress Report, 5/14/14, 2 pages

HH Annual Review Plan, 5/12/14, 2 pages

II Progress Report, 12/2/14, 3 pages

JJ Midyear Evaluation Report, ’14-’15, 3 pages

KK Present Level of Performance, 2/15, 1 page

LL Progress Report, 1/23/15, 2 pages

ENTERED 04/17/2015

MM Assessment Planning Form 5/7/14, 1 page

NN Letter 6/13/14, 1 page

Entered 05/06/2015

OO Tax Form, 2014, 2 pages

PP Tuition Agreement, 09/10/2015 1 page

QQ Tuition Statement and Attendance Record, 04/23/2015, 2 pages

DEPARTMENT OF EDUCATION

ENTERED 04/15/2015

1 6/12/14 IEP, 13 pages

2 5/29/14, Notice of IEP Meeting, 3 pages

3 5/7/14, Notice of IEP Meeting, 3 pages

4 5/20/14, Parent Canceled IEP Meeting, 1 page

5 5/20/14, Manual Independent Provider Approval Form, 2 pages

6 5/14/14, Academic , 2 pages

7 1/17/14, Parent Letter, 1 page

8 5/17/13, Educational Evaluation, 10 pages 9 6/12/14, Progress Report, 2 pages

10 5/12/14, Annual Review Plan, 2 pages

11 5/28/14, Annual Review Plan, 2 pages

12 6/12/14, and Progress Report, 1 page

13 5/6/13, Evaluation Referral, 5 pages

14 12/11/14, Trial Period Plan, 2 pages

15 1/29/15, Evaluation Addendum Follow Up Report, 3 pages

16 1/29/15, Memo Information for Procurement of Equipment,

5 pages

17 3/9/14, Academic Evaluation Summary by Solution, 2 pages

18 6/13/14, Prior Written Notice, Notice of Recommendations, 4 pages

19 5/8/14, Prior Written Notice, Notice of Recommendation, 1 page

20 1/27/12 to 02/02/2015, Events Log, 16 pages

21 Undated, Record of Book Level, 1 page

22 2014 Spring Yearly Grade for State Score, 1 page

23 2014 State Score, 1 page

24 9/13 to 6/14 Report to Families, , 4 pages

25 6/14 with and problem solving, 8 pages

26 ’13-’14 New York State Education Department Rubric,

14 pages

27 IEP of May 22nd, 2013, 15 pages

IMPARTIAL HEARING OFFICER

ENTERED 02/27/2015

I Notice of IHO Appointment, 01/15/2015, 3 pages II Subpoena to Pros, 02/19/2015, 1 page III Subpoena to , , 02/19/2015, 3 pages IV Grant of Request for Extension of Timelines, 02/27/2015, 4 pages V Not Use VI Not Used

ENTERED 05/22/2015

VII Grant of Request for Extension of Timelines, 02/27/2015, 3 pages

VIII Grant of Request for Extension of Timelines, 05/12/2015, 3 pages

IX Parent’s Closing Brief, 05/22/2015, 24 pages

X DOE Closing Brief, 05/22/2015, 10 pages