New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND ORDER

Case Number:

NYS Case Identifier Number: N/A

Student’s Name:

Date of Birth:

District:

Hearing Requested by: Parent

Date of Hearing: 5/4/15

6/2/15

6/9/15

6/11/15

Record Close: 9/26/15

Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 4, 2015

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 2, 2015

Attorney — Student

Parents

District Representative — DOE

Teacher Assigned (Via Telephone) — DOE

School (Via Telephone) — DOE

Assistant Principal (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 9, 2015

Attorney — Student

Parents

Director, (Via Telephone) — Student

Teacher, (Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 11, 2015

Attorney — Student

Parents

— Student

District Representative — DOE

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

( ) is an student classified as . The parents, and ( , , parents or parent), argued that the DOE had failed to provide the child with a free appropriate public education (FAPE) for the 2014-2015 school year and placed him at ’s ( , or ). The parents brought the instant hearing seeking an order for tuition reimbursement and/or prospective funding for amounts owed to for the school year, reimbursement and/or direct funding for any independent educational evaluation obtained by the parents, provision of appropriate to and from , and reimbursement for the cost of any expenses incurred by the parents in providing private .

PROCEDURAL HISTORY AND BACKGROUND

I was appointed to hear this case on February 23, 2015. A prehearing conference hearing was held on March 25, 2015. The hearing convened on May 4, 2015, June 2, 2015, June 9, 2015, and June 11, 2015. Post-hearing briefs were to be submitted by July 30, 2015. Following a request by the district representative and with the consent of the parent attorney, the deadline for submission was extended to September 10, 2015. The district representative subsequently asked for an additional 30 days extension of time for submission and extension of deadline for decision, which motions were denied. The parties were granted a one week extension for submission, to September 17, 2015.

The district submission included a computer chronology from the DOE’s special education student information system. The parent objected to what was essentially an exhibit being submitted as part of the post-hearing brief, and I ruled that the chronology would not be entered into evidence nor considered by me. Extensions granted in this case are entered in the record as IHO Ex. IV. The record closed upon receipt of briefs and accompanying cases and cited materials on September 26, 2015.

FINDINGS OF FACT

is a student with . attended

for and . Tr. 444. In , he was able to function in a general education setting, but became more difficult for him. Tr. 444. In the 2013- 2014 school year, he was in the , and receiving ,

, and , and ) from the

DOE through an Individualized Education Services Program (IESP) dated July 24, 2013. Tr.

419, 446; IHO Ex. I. The IESP had a projected annual review date of July 23, 2014. Although there should have been a CSE review at the time, there was no explanation of why one was not held. Tr. 118-119; IHO Ex. I.

According to , could have been promoted to the second grade at , but he was doing poorly. In January or February 2014, officials, specifically , the director of , and his teachers, discussed with their belief that he would succeed in the school’s , and that would be appropriate program for him. knew there was a seat available at for the following year. She testified that she was not asked to put down a deposit. As of June 2014, it was understood he would be able to enroll in in September. testified that it was not her intent he enroll; she had to first look at a public school. Tr. 447-450.

Ms. noted ’s performance in , and his difficulties with . They had tried working with him in the school’s , which is something like a , but he was not progressing, so they suggested moving him to ’s class in . He began in the class at around February 2014. Tr. 262-264. , his classroom teacher at the following year, was told by that he was not functioning within the classroom, not participating and not reading until he began midyear with Ms. .

Tr. 357.

School officials at asked to obtain a evaluation for him. Tr. 420-421, 450. The was completed on May 6, 2014. It provided a diagnosis of , and recommended placement in a small classroom setting, where he could receive instruction modified to accommodate his ,a to assist in , as well as , ,a approach, and a social skills group for children his age. Ex. 6. An addendum was conducted, because asked her to get additional tests from Dr. . said she did not know why those tests were requested, although the report cited the school’s request for specific testing; the addendum reported results on the ( ), a test administered for determining if a student has a . Those tests were done on July 4, 2013 and a report issued July 19, 2014, adding a diagnostic consideration of and recommendation for , which had not been in the previous report. Tr. 452-454, 458; Ex. 7. Asked why she waited until August 18, 2014 to forward a request to the DOE for a program for , that she was waiting for the doctor.

Tr. 450-452.

Admission to the program is a collaborative decision, with Ms. ,

, the principal of , and “sometimes” the principal and the director. For , it was a determination with input from his teachers, the , , as well as Ms. . Ms. reviewed the evaluation provided by the parents and the child’s IESP. She confirmed the evaluation was accurate in that he had a , and they found processing to be a big issue for him. She did not recall specific scores in testing. Tr. 296-

301. She discussed the levels, , and stated that the related services were selected off his IESP. Tr. 306

On August 18, 2014, the parent wrote to the DOE detailing concerns about ’s academic difficulties in the 2013-2014 school year, stating that the current level of ) was no longer appropriate, as needed a . She testified that she wrote, because he was doing poorly and needed a more appropriate setting. Tr. 418-419, 456; Ex. B. Asked why she waited until August 18 before writing the letter, stated that she was “waiting for all the results, everything to come back.” Asked again why the letter was written on August 18 and not in July when she had all the reports, she stated that she didn’t recall, but insisted that nothing was determined at that time concerning ’s placement at . Tr. 459-460.

Asked about a credit card payment to the school for on July 16, 2014, stated that her daughter also attended the school, and when pointed out that the reference was to an exhibit concerning a payment for ’s tuition, her response was, “I may have, I may have to hold a spot just in case I didn’t find the right setting,” but stated that she didn’t recall. Tr. 461-

462; Ex. G. The parents provided , in sequential numbered order, beginning with # 135 dated September 19, 2014 and continuing with Checks # 136 through 142 as payment for the following . testified that the checks were provided to when she signed the contract. The contract was not dated, but testified that she signed the contract sometime in the middle of October or November 2014. Tr.

462-465; Exs. F, G. The contract provided for a refund if the school was notified prior to September 15, 2014. Ex. F. Asked whether the contract provided any opportunity to withdraw the child and not be obliged to pay full tuition, stated that she wasn’t sure but she believed there was. When asked to find a statement on the contract to that effect, she was unable to answer. Tr. 478-479. According to the parent, an enrollment contract for with was signed sometime in early October and payments were made for ’s enrollment in the 2014- 2015 school year Tr. 434-435; Exs. F, G, P.

The parent submitted a request for an immediate CSE meeting to secure a spot for the upcoming 2014-2015 school year. Included in the August 18, 2014 request was a copy of the evaluation. Tr. 130-131, 421; Exs. 4, 6, 7. At the same time, the parent indicated she would be enrolling in temporarily, until the DOE recommended an appropriate program and placement, and would be seeking reimbursement and/or funding for the cost of ’s enrollment, including tuition and related expenses. She also requested the DOE to provide appropriate to and from , informing the DOE that if appropriate was not provided, she would be seeking reimbursement and/or funding for any private expenses incurred. Ex. B.

, school , testified that ’s case had to be reopened, as he previously had been parentally placed at , receiving services under an IESP. Ex. 4.

She conducted a psychoeducational evaluation, which indicated his performance in the range, with and at the , and scores in . Overall, he was found to be

, , and .

At the time he was in the at . Tr. 131-133, 152-154; Ex. 4.

On October 31, 2014, the CSE convened an IEP meeting. , certified in both special education and general education, served as teacher assigned and district representative.

Tr. 48-50, 113-114. Also present at the meeting were as general education teacher and as school . was present, and participated by phone.

Tr. 52-53; Ex. 1. There was no one from , although there were progress reports submitted by the school. Tr. 79-81, 144-146, 163; Exs. 1, 5, 8.

In addition to the evaluation, the psychoeducational evaluation, dated October 8, 2014, and the progress report and report, dated June 9, 2014, were reviewed.

Tr. 54-55, Exs. 4, 5, 8. The report recommended a continuation of services . Tr. 89-90. The parents wanted to have an appropriate educational setting for their child; they felt he was not performing the way he should in the classroom at .

Tr. 83-84. reported that was doing poorly, that teachers were complaining he wasn’t

.

, a special education experience with children with , articulated her concerns about his performance in 2013-2014, stating that she wanted a smaller setting, with more instruction, and that learns best with

. Tr. 423-425.

Mr. identified the IEP goals for t,

. There were no short-term goals on the IEP. Tr. 64-73; Ex. 1. The IEP reported reading on a and was on a level. Tr. 74; Ex. 1. Mr.

thought he had . He

acknowledged contradictory information in the June 2014 progress report that indicated that he was still . Tr. 107-109. There was no discussion about a , but there was discussion about whether he would receive

. Tr. 110-111.

The recommendation in the IEP was for a class in a school, with related services of , , , and . It was agreed that needed a small class. Tr. 81; Ex. 3. There was no disagreement regarding ’s classification of impaired, nor with the recommendations for small class placement and related services. Tr. 75-77, 139-140, 467; Ex. 1. Mr. believed the team had sufficient information to make a program recommendation for , and he and Ms.

thought the recommendation that was made was appropriate. Tr. 93-95, 142. According to Mr.

,a class was more educationally restrictive, and often had more students who were . Tr. 103.

Following the meeting, a final notice of recommendation dated November 10, 2014 indicated placement for at . Tr. 470; Ex. 2. spoke with , the Assistant Principal at , and testified that she was told there were no appointments available, and she had to bring her son and enroll him the same day. Ms. testified that she never stated that the parent could not visit the school unless she enrolled her son, stating that would be a foolish policy. said she was later informed by that the school wasn’t appropriate for . She tried to contact Ms. again, and received an appointment to visit the school. Tr. 206-207, 426-427. Ms. described the school as through . The school has , classes for children with , which she described as “the entire continuum of services in a school.” The school has ,

, and , as well as and services. Tr. 172-175.

Ms. stated that the school would have provided a class because she is permitted to “overserve” children, in other words, putting a child recommended for a program into a class. The school doesn’t have a class, only classes. The class that would have been available for was a Tr. 182, 184, 214-215. in the class was a licensed and certified special education teacher. There were , with , , , and ” to support . Their academic levels were from the . Tr. 185-187, 221-222, 229. There was only one student in the class at the start of the school year, who was discharged prior to the date of the parent’s visit. Tr. 229.

Ms. testified that the goals on ’s IEP could be addressed by the special education teacher in the class, as they were part of the upon which the classroom curriculum was based. Ms. testified that the teachers use differentiated and individualized instruction across all levels of the school, especially in a class, explaining that they were varied levels, and in the room help to differentiate instruction to meet the needs of all the students. Tr. 191, 204, 223-227. She stated that the school could meet and could have met all the mandates of ’s IEP. Tr. 181, 187-190,

193. There were no students with , and none with

. Tr. 191-192.

visited the school with an advocate, on or about December 9, 2014. Tr. 202-203,

470. stated that as of her visit, she was willing to remove her son from and place him in a public school setting. She acknowledged that he has never attended public school setting. Tr. 472. testified that with students in the class speaking

, would not be able concentrate. She stated that he has a hard enough time with and concentrating with . She stated that if he heard other languages it would be detrimental to his learning. Tr. 433-434.

After visiting the school, the parent informed the DOE that she would be continuing at , and seeking reimbursement and/or funding for tuition, , and related expenses. By letter dated December 11, 2014 letter, she informed the district of her concerns about the school, specifically that the school could only offer a program, with additional in the classroom, all , and that there were no in the class, although struggles with social skills development and should be with children his own age. , the parent coordinator who conducted the tour, did not provide any information concerning a class profile. She also complained about the qualifications of the classroom teacher, the reading teacher, and the . Tr. 196, 428-433. Ex. C.

received no response to her request for in her August 18, 2014 letter. Ex. B. She submitted a document from , indicating to from September 2, 2014 through April 17, 2015. Ex. O. She explained that she had another child on the same bus, so she was only requesting half the amount. testified that has been receiving from since he began at in September 2014. He was not given the prior year at , nor was his sister. Tr. 436-437, 473.

is the Director of ’s . She is certified in early childhood, special education teaching, and leadership, as well as having completed in . Tr. 249-251. The program at offers

. Tr. 252. The program is located in the building of . The school has special education teachers, associates working on or finishing a Masters in special education, some assistants working on their s, related service providers in , , and , as well as a consultant. Tr. 252, 257-260; Ex. R. The school follows the . Tr. 294. Mr.

acknowledged that program was similar to the program available in the public schools, providing classes for children with disability in grades , with a special education teacher and related services. Tr. 84-87, 128-129.

In 2014-2015, is in a class of , with a

. , , is certified and licensed in special education.

, the associate teacher, has a Masters in special education. In the portion of the day, is , who has a Masters in special education, although Ms. was unsure about her license or certification. The assistant teacher is , and she is going for her Masters in special education. , the reading teacher, is an associate of ; she works on , and with ’s group. , a school , provides group for for in a group of . The is ,a , and the is , a licensed . is the consultant, a , who goes into classes and helps modify curriculum. Tr. 265-275, 297. There are with teachers, as well as with the school , social worker, consultant, and occasionally related service providers, discussing progress from an academic and social emotional viewpoint. Tr. 280-281. The and social worker meet individually with students, and every child is assigned someone, whether mandated or not. Tr. 281.

According to his schedule, receives in a

, and in approximately . Ms.

explained that the and the sometimes , for example, working with the writing workshop. Tr. 276-280; Ex. H. The and worked on goals based on the DOE mandate.

The April 2015 progress report of described his present level performance and work being done with him in regard to the following , generating a , well as . Ex. K. The April 2015 report from detailed performance deficits in and work on increasing his , , and . She noted in task . Ex. L. Exhibits M and N, follow-up in the current 2015 calendar year to the progress report from June 2014, also indicated improvement in the .

Asked about ’s schedule, Ms. described , and the content of courses in . She testified that writing and verbs were language related and not in nature, and that the reading period was split between and

, about

. Tr. 282-290. In addition to his , receives all his related services in . Asked whether a child with a would benefit from instruction in subjects in , Ms. stated that she didn’t know that it was a benefit or detriment, since instruction is done to the child’s level. She stated that she didn’t know that it would be either. Tr. 322-325.

Ms. said had made some “really nice progress.” From September to February in the 2014-2015 school year, he went from a according to the . His is approaching .

Socially, the and teachers work with him on interacting and initiating appropriate conversations, and he has made a lot of progress. Tr. 291-292, 335-336.

testified that she was a certified special education teacher, certified also in and as a . She teaches the class at in general studies. Tr. 354-355. She explained that general studies means

. Tr. 393. She

is the teacher in the school. Tr. 405.

In September 2014, at the very beginning of , did not yet have basic fact fluency. He scored a ( ), reflecting the very beginning of , and was . In , he had not yet mastered his . Tr. 355-356, 394-396.

In the beginning of the year, Ms. asked him to write sentences to assess whether he could . Some

have , and , but

. Tr. 362-363. In the

. She considered it an appropriate student grouping for . Tr. 363-364. There are with the , the teacher, and various other providers, sometimes the , the , and/or the school

. Tr. 364.

Ms. described the schedule for his

Tr. 390-392.

stated that she thinks

Tr. 484-486.

According to ’s mother, showed progress in the school year in exams, homework, and school work, quizzes. He’s

.

cited reports from , his classroom teacher, and , the , and stated that he has . There were in his class, and he is able to socialize with them. His scores are better and he is eager to go to school, as opposed to the did in the prior year. She described the smaller setting as “really the key” for him. Tr. 438-442.

CONCLUSIONS OF LAW

The decision in this case rests on a determination of the -pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child's 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. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

ISSUE 1

A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE).

Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir.

2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student's recommended program must also be provided in the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR § 200.6(a)(1). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. 34 C.F.R. § 300.320(a)(1), (a)(4); 8 NYCRR §

200.4(d)(2)(i), (iii), (v).

Analysis in this case begins with the parents’ August 18, 2014 request and the DOE action in response. The district, then dealing with an initial review, conducted a psychoeducational evaluation on October 8, 2014, and the CSE met on October 31, 2014 to review the child’s assessments. The claim that the student was entitled to a FAPE before the school year was inaccurate. Assuming that August 18, 2014 date was in fact the date to trigger a timeline for the district to act on an initial referral, the district had 60 school days to make a recommendation and arrange for the appropriate special education program and services to be provided to the student. 8 NYCRR §200.4(d), 200.4(e)(1). In this case placement was offered on November 10, 2014, meeting that requirement.^[1] Ex. B.

The district also addressed the DOE’s obligation to the child under the IESP in effect for the prior school year, arguing that a parentally placed student is not owed a FAPE, but there was no claim that was denied a FAPE because an annual review was not held, nor allegation that the DOE had failed to provide the child with services under the IESP. In any event, services under an IESP plan would not have begun until September 2014. The parent filed their request for an IEP review and notified the district that the child was unilaterally placed at before that date, making any objection moot.

Analysis turns to the various allegations concerning the adequacy of the CSE meeting, specifically the adequacy of the team, the absence of short-term goals, and the failure to consider additional support for the child.

The complaint about the adequacy of the team is misguided. Certainly Mr. and Ms. were qualified for their respective roles at the meeting. Mr. was a certified special education and general education teacher working as teacher assigned to the CSE, and knowledgeable about programs including the program at . Ms.

was the who conducted the October 8, 2014 psychoeducational assessment of .

Exs. 1, 4. Although there were no officials from participating in the meeting, I note that the school sent a progress report and report that were before the committee. Exs. 5, 8. I credit Mr. ’s statement that the team had enough information to form a basis for a recommendation for .

Nor are short-term objectives on the IEP critical for this student. Short-term instructional objectives and/or benchmarks are only required for students who are to take alternative assessments or preschool students. 8 NYCRR § 200.4(d)(2)(iv). I note also that if short-term objectives were required for , their absence would still not be enough to support a finding that the district failed to provide a FAPE. As for the failure to consider additional support for the child, there was no dispute that the parent agreed with the recommendation. There was discussion about support, although there was no recommendation for a requested by the parent. There is no requirement that every request by a parent be approved. The parent’s subsequent rejection of a class, citing the class structure supplying that supplied further illustration of the flaws in this claim.

Finally, despite the desire for additional support, the parent challenged the placement recommendation at , questioning the appropriateness of a class for a child recommended for a class. I note to begin that the district’s argument that challenges to placement are impermissible under R.E. is simply wrong. The holding in that case bars consideration of retrospective testimony by the district that the school would have provided additional services beyond those listed in the IEP. R.E. v. NYC Dep 't of Educ., 694 F.3d 167 (2d Cir. 2012). Certainly, the district is not prohibited from providing actually additional services to support to students, in addition to what is recommended in the IEP. However, the burden remains on the school district to prove that the proposed placement was adequate. The parent is entitled to make a decision based on the information made available to them at the time of the placement decision. B.R. ex rel. K.O. v. New York City Dep't of Educ., 910 F. Supp.2d 670 (SDNY 2012).

School districts "do not have carte blanche" to assign a child to a school "that cannot satisfy the IEP's requirements." T.Y . v. New Y ork City D ep't of Educ., 584 F.3d 412 (2d Cir.

2009). The district cites a decision of the State Review Officer that upheld a placement for a child recommended for a class. Application of a Student with a Disability, Appeal No.

12-169. However, in that case the SRO held that the evidence in the hearing record showed the class to be capable of providing a suitable classroom environment and appropriate grouping.

That is simply not the case in regard to the placement recommended for . In this case, the evidence from the district’s own witness was that the class would likely have had more students with behavioral issues. There was no evidence that consideration was given to placement that was in a class based on similarity of needs, levels of academic achievement or learning characteristics or levels of social development. 8 NYCRR §

200.6(h)(2), (3). The the parent was shown had no students in ’s grade, and

.I

agree with the parent that the environment would be , due to his , and not a benefit for a child with his social and needs. The evidence fails to support the placement being able to adequately address ’s educational needs.

For the reasons noted above, I find the district failed to provide a FAPE for .

ISSUE 2

Under the second prong of Burlington, the parents bear the burden of proving the appropriateness of the services obtained for . M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No.

99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that offered an educational program designed to meet ’s special education needs. School

Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

When determining whether the parents' unilateral placement is appropriate, the issue turns on whether that placement is "reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d 356, at 364 (2d Cir. 2006); see also Gagliardo, 489 F.3d 105, at

115.

The parents have met their burden of showing that a portion of the program was appropriate. I credit the description of the at for , noting the . Ms. described the use of . She noted ’s progress in performing routines more independently. Work with Ms. in has produced s in , in . He has also improved about in , . cited the reports from Ms. , noting ’s improvement in fluency and penmanship, as well as the importance of the smaller setting, and his new eagerness to go to school. Ms. noted work done by the as well as teachers on interacting and initiating appropriate conversations, citing progress in that area. I also credit Ms.

’s statement that the school met all the mandates on the child’s latest IEP. I note the progress reports from the and the , describing the work done with him in their respective fields. Exs. K, L.

To the extent described above, the program was appropriate. What was not appropriate was the half day spent in and/or instruction. I note to start the arguments proffered by the parties concerning funding for instruction for . The parent cites the United States Supreme Court in Zobrest v. Cataline Foothills Sch. Dist. in support of funding for a institution and the district cites the New York State Constitution in support of prohibition on funding for a institution. Zobrest, 509 U.S. 1 (1993); NYS Constitution,

Article XI, §3. Neither of those citations are directly on point, as this case is not about a voucher program nor about public funding of a institution but about funding for a student’s education, which may be appropriate in any setting, or not.

The daily schedule at is divided into , taught by

.

. Even more significant is consideration of the educational benefit to of instruction. 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 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. Given ’ specific multiple challenges, I find that the portion of the day, whether in whole or in part, did not meet this standard. In that regard, I need only cite the school’s director and the parent.

was unable to state that instruction would be a benefit for a student with a classification of . As the parent testified, learns best in and the instruction was not a benefit for him.

For the reasons noted above, I find of the instructional program at to be appropriate for .

ISSUE 3

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded.

This case raises several questions concerning whether the parents had any intention of sending to a public school. As early as February 2014, teachers and parents agree that was able to go to in the next year, and in fact he began in Ms. ’s class at in February 2014. In March 2014, a evaluation was conducted at the behest of , concluding in a May 6, 2014 report. That report provided an diagnosis and recommended placement in a small classroom setting, where could receive instruction modified to accommodate his , yet there was no request made to the DOE at that time. officials requested added testing for , resulting in the addition of a diagnosis of and recommendation for . Exs. 6, 7. The testing for the addendum was conducted on July 4, 2014 and the report issued July 19, 2014. The parent, exhibiting confusion about the dates, was unable to explain why she waited until August 18, 2014 to request a placement for her child.

At the same time, the initial payment to hold the child’s seat at was made on July 16, 2014. Ex. G. In this regard, the parent’s testimony was contradictory and unclear. The contract was undated, and there was no provision in the contract for any refund of monies due for tuition should the child leave the school, making the date of the agreement significant. The parent testified that the contract was signed in October or November 2014, then testified that the contract was signed at the same time the sequential checks were provided , the earliest bearing the date September 19, 2014. Payments followed dated October 20 and November 20, 2014. Given these facts, it is likely the contract was signed prior to the October 31, 2014 CSE meeting, and most definitely before the visit to the recommended school in December 2014. The parent’s visit to on December 9, 2014, a full month after the final notice of placement, fails to support the argument that the public school placement was a legitimate possibility.

Accordingly, equitable considerations operate to deny an award of funding or reimbursement to the parents for ’s tuition at for the 2014-2015 school year.

State law provides that a school district is required to provide “suitable ” for a child with disabilities attending a nonpublic school, if the child is attending a private school for the purpose of receiving services or programs similar to the recommendation of the district’s

CSE. Education Law § 4402(4)(d). It is clear that the program at meets that standard, as described by Ms. and Ms. and as Mr. readily confirmed. The

IEP made no provision for . Ex. 1. There was no evidence that was even discussed at the CSE meeting, nor was there any evidence that the DOE had ever responded to the parent’s request for in her August 18, 2014 letter.

The documentation offered by the parent in support of the request for payment for obtained by the parent indicates to over a , although without invoice or documentation specifying dates of service or . Ex. O. Under the circumstances, I will order the DOE to reimburse the parents for ’s to and from by for September 2014 through June 2015, at a rate not to exceed , for a total not to exceed , upon submission of proof of services and payment.

Section

The parents’ due process complaint notice expressly reserves adjudication of claims under Section of the Rehabilitation Act of 1974, 29 U.S.C. 794 et seq. Although the parent bears the burden of proof under Section , there was no allegation specifying discrimination in services or accommodations for nor evidence or argument proffered of discrimination under that statute. I find that this claim has no support in the record, warranting dismissal.

Independent Educational Evaluation

The parents’ due process complaint also requested payment for the full cost of any independent educational evaluation obtained by the parents, without specification of evaluation, the need for an evaluation, or any complaint concerning the district’s evaluation. Nor was there evidence presented concerning this claim, thus warranting dismissal.

ORDER

1. The parents’ claims under IDEA for funding for tuition reimbursement and/or prospective funding for tuition at in the 2014-2015 school year and for an independent educational evaluation are dismissed. The parents’ claims under Section of the Rehabilitation Act are dismissed.

2. The DOE shall reimburse the parents for ’s to and from by for the 2014-2015 school year from September 2014 through June 2015, at a rate not to exceed , for a total not to exceed .00, upon submission of proof of services and payment.

IT IS SO ORDERED. Dated: September 30, 2015

NANCY M.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the Board 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.

If the parent plans to appeal the decision, 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 so that a certified copy of the hearing record may be prepared for submission by the school district. Failure to file the notice of intention to seek review is a waiver of the right to appeal the decision.

If the school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

The petition for review shall be served upon the opposing party 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. (8 NYCRR §279.2[b])

The rules of procedure for proceedings before a State Review Officer are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

1 IEP, 10/31/14, 13 pages

2 School location letter, 11/10/14, 5 pages

3 CSE minutes, 10/31/14, 1 page

4 Psychoeducational Assessment, 10/8/14, 3 pages

5 , General Studies Progress Report, June 2014, 2 pages

6 Evaluation, 5/6/14, 15 pages

7 Addendum, Evaluation, 7/19/14, 5 pages

8 Progress Report, 6/9/14, 2 pages

PARENT EXHIBITS *

A Impartial Hearing Request, 2/16/15, 10 pages

B Letter from parent, 8/18/14, with transmission verification, 4 pages

C Letter from parent, 12/11/14, with transmission verification, 4 pages

F Enrollment Contract, , undated, 1 page

G Affidavit, , , 4/28/15, 1 page

H Student Schedule, , 2014-2015, 1 page

I Letter, , 4/28/15, 1 page

J , , 4/28/15, 1 page

K Progress Report, April 2015, 2 pages

L Progress Report, 4/21/15, 2 pages

M General Studies Progress Report, January 2015, 4 pages

N Parent/Teacher Conference Checklist for General Studies, March 2015, 4 pages

O Payment Activity, Online Banking, 9/2/14 – 4/17/15, 1 page

P Various documents, 9/18/14 – 4/20/15, 7 pages

Q Classroom Teacher School Progress Report, 4/27/15, 1 page

R Description, , undated, 2 pages

* There were no Exhibits D or E admitted into evidence.

IHO EXHIBITS

I IESP, 7/24/13, 9 pages

II Meeting Notice for the CSE, 10/15/14, 2 pages

III Prehearing conference summary, 5/25/15, 1 page

IV Extension decisions, IHO , 5/4/15 – 8/31/15, 5 pages

V Closing Brief and Memorandum of Law for the DOE, undated, 36 pages

VI Closing Brief in Support of Petitioners, 9/17/15, 30 pages

Footnotes

[1] The district also argues that should an award be granted, it should be prorated to reflect the tuition for the student following the 60-day period in which a placement is required. Given the finding later in this section that the district did not provide the child a FAPE, I disagree.