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: April 14, 2015

May 11, 2015

May 18, 2015

Actual Record Closed Date: June 4, 2015

Hearing Officer: Daniel Ajello, Esq.

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

No appearance — Student

No appearance — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 11, 2015

Parents

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 18, 2015

Attorney — Student

(Via Telephone) — Student

(Via Telephone) — Student

Parents

Chairperson's designee — DOE

INTRODUCTION

On 03/13/2015 I was appointed the Impartial Hearing Officer (“ ”) 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.

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

Pre hearing conference was conducted on 04/14/2015. Neither party choose to appear. Hearing was set to commence.

At hearing of 05/18/2015 parent made a motion to extend the compliance date by 30 days to allow receipt of the day’s transcript. Motion was granted and compliance date was extended to 06/17/2015. (IHO Ex II)

This matter was instituted by the impartial hearing request dated 03/12/2015 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 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2013-2014 school year. (Ex A 1)

Relief sought includes funding or reimbursement for unilateral placement at the

( ). (Ex A 2)

BACKGROUND

Student is currently , in at . (Ex A)

Most recent IEP, of 10/10/2014, includes: classification of or

(Ex 1-1), includes test scores but no grade level for the student (Ex 1-2), student was attending (Ex 1-4), student was diagnosed with at years of age (Ex 1-6), has expressed ideation (Ex

1-6), include

goals are included (Ex 1-9 & 1-10), recommended services including an ( ) class for , , and (Ex 1-11), student functional and instructional levels are and (Ex 1-14), and promotional criteria is standard (Ex 1-15)

THE PARENT’S POSITION

( ) presented the parent’s position.

contends the IEP is flawed, due in part to the inclusion of related service goals without recommendation for related services. (T 22-23)

PARENT WITNESS

( ) reviewed her educational and professional background and testified as teacher, school psychologist and grade coordinator of . (T 23-

26) “…I'm in charge of working with the teachers to ensure the student is making progress and monitoring that progress.” (T 48)

describes : “

” (T 26)

serves a and special education population, with about in the program. (T 26) The Program has students.

(T 49)

This year the Student was in in the “ ” Program.

(T 27)

“

” (T 27)

is the student’s grade coordinator. “

” (T 28)

Student difficulty is primarily in the area, he can struggle with .

(T 28-29)

Class size for the student is up to . (T 29-30)

described the student support. This included history where material is previewed and extra time is allowed for certain projects, and and teachers are either special education trained or certified. (T 30)

reviewed the student schedule (G) which included

(T 30-31),

,

(T 34).

and are provided as related services at . (T 34)

is to minimally times weekly (T 34) and is provided in session and as a . (T 34-35) , in part, is to address student social

And difficulty in social situations. (T 69)

Class size is significant for the student who has a high level of and needs to be . (T 35-36) Sometimes the student asks to go to a smaller room to complete work. (T 36)

reviewed students current class program which included where

(T 39).

reviewed parts of the student IEP. (Ex 1) addresses some goals contained in the IEP such as determining a them or central idea (T 40-41) to organize and (T 41), and

. (T 43)

states that the student has made progress since attending. (T 45) Student began attending in December of 2014. (T 51) This includes history and and “…in learning the strategies that are going to help him learn how to monitor his attention…he's definitely learned more of he needs to say I need to work in the library right next to you or I need to move my seat because something on the wall is distracting me. So he's really becoming more self-aware and learning strategies to help him whether it means taking water in class, using different and formats that are helping him to organize his ideas. He's becoming more independent with things like the binder system and managing his work load. So those are his major areas of , and he's made great gains in those areas for sure. He's doing well in all his classes.” (T 45-46)

Student level of instruction at was based upon “

” (T 52)

describes some parts of the IEP as helpful and some “ ”.

(T 53)

believes the program is appropriate for the student providing need support “ ” . (T 73-74)

PARENT WITNESS

( ) reviewed her educational and professional background and testified as director of and services at of . (T 75-77)

coaches the student’s class and sees him privately as a

. (T 77-78)

is in the students class about times a cycle in class and a week individually. (T 78)

Student special education needs and with his thoughts and being fluent with his expression. (T 78-79)

Regarding smaller class sizes: “I think he definitely benefits from the smaller class sizes that he is in. Even in our class, a class of with of us in there, and he needs a lot of even within that environment. His attention is so scattered…you can't always tell when he has tuned out because he is not hyperactive. He will just sit and look as though he is being attentive but he's not even listening at that point. If you don't bring him back to attention and notice that, then he misses of the lecture or the class activity and it causes him to have to go back to the beginning of the activity. He totally needs to be in order to start over and get an activity finished with any degree of success--” (T 80-81)

In a -to- setting the student is able to stay on task and perform at grade level. (T 81-82)

believes the student has shown progress at . Student can use active strategies, will raise his hand and his expression is more fluent. (T 82)

Student is starting to get

. (T 84)

believes a benefit’s the student. (T 85-86)

PARENT WITNESS

( ), the student’s mother testified.

Student attended the school for about a year and a , and was paid for by the DOE. (T 90)

At the end of the 2013-2014 school year decided to place the student in a protective which started in July. (T 91)

Student became the subject of and ultimately the student stopped attending the sometime in August. (T 91-92)

In September parent went to Committee on Special Education ( and asked for a placement. No seats were available. Parent had hoped to perhaps return to . (T 93-94)

CSE tests the student and sent the parent to look at schools. While awaiting

DOE placement the Parent enrolled the student at ( ), a DOE school. (T 94 & 115)

Parent discussed related services with staff person at . (T 115-116) At the time the student was receiving and outside of school. (T 117)

Some student classes were spec ial education classes and some were classes. (T 117)

At this school they wanted to place the student in an and parent felt that class was too large. (T 95)

After parent placed the student at the CSE sent the parent a placement of . (T 124)

Parent refers to an IEP meeting prior to the 10/10/2014 meeting. (T 96)

Parent had several meetings including IEP meeting of 10/10/2015 which recommended an placement. (T 97, Ex 1-11) Parent believes at point

( ) was recommended. (T 112)

Parent disagreed with placement (T 97) but agreed to related service of

. (T 98)

Parent asked for ( ) and was denied. (T 99)

Parent does not recall advising the CSE related services were not necessary in school because they were provided outside of school. (T 99, Ex 1-4)

accepted the student and parent signed a contract. (T 103)

Last year parent made about . . (T 103) Parent is just returning to word after being . (T 1338) Tuition is approximately for the year. (T 103) Parent has no other source of income (T 136)

and no asset to draw upon to pay the tuition. (T 137) Family is currently in foreclosure. (T 137)

Parent is seeking reimbursement for transportation paid for in cash to a driver.

(T 103-104) Total amounts include and for . (T 105)

Student has benefited from placement. He is not afraid to go to school, feels safe and is focused. (T 105-106) Student was bedwetting which has stopped.

(T 107) Student is learning. (T 107)

Parent identified correspondences of 01/20/2015 (Ex B) and 11/14/2014 (Ex C). (T 125-126)

Parent did look at . (T 126-127) Parent was not able to see any classes and principal and parent coordinator were not available to meet with her. (T 127-128)

By November parent removed the student from , due to in the school. Student was for his “ “

“

” (T 128-129)

Parent did not contact the CSE though they knew the status o the student. (T 130)

DEPARTMENT OF EDUCATION POSITION

) District Representative, appeared at hearing for the DOE on 05/11/2015.

When hearing commenced on 05/11/2015 the District Representative had entered the room and then left. Parent’s evidence was entered and Ms.

returned and gave the hearing officer DOE evidence to enter into the record. As was again about to leave the room she was warned that if while she chooses to leave she may loose her opportunity to present a case. (T 9)

DOE evidence was entered and was again out of the room when the IHO was ready to hear the DOE case presentation. As warned the DOE lost its opportunity to present its case. (T 11)

returned to the room and another date was set for the parent to present its case. (T 13)

then advised the IHO she was trying to clarify information regarding the student’s IEP. (T 14) appeared unsure still if the IEP entered was indeed the correct IEP. (T 16)

Dr. ( ) appeared at hearing for the DOE on 05/18/2015.

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 2014-2015 SCHOOL YEAR

As outlined above the DOE failed to avail itself of an opportunity to present a case regarding any DOE offer of FAPE for the student. An impartial hearing officer must provide all parties with an opportunity to present evidence and testimony, including the opportunity to confront and cross-examine witnesses (34 C.F.R. § 300.512[a][2]; 8 NYCRR 200.5[j][3][xii]). IHO did advise the DOE representative to remain in the hearing as indicated above and she choose to attend to leave the room. DOE did not choose to make any closing statement nor present any rebuttal witnesses.

DOE did submit evidence which is considered in rendering this decision.

Most recent IEP, of 10/10/2014, is deficient in several respects. Most glaringly it includes and related service goals, but does not recommend said services. (Ex 1)

Parties did relate some communication between parent and CSE regarding a request for . This would not alter the requirement to place the services upon the

IEP. (T 99, 128-129)

Prior written Notice does reflect and services, but fails to include an amount of service. (Ex 2)

Meeting minutes include an amount of related services which is missing on the IEP. (Ex 3)

IEP includes a note that the parent did not want related services from the DOE and instead wanted them from an outside provider. (Ex 1-16) IEP includes the meeting was held to terminate related services. (Ex 1-4) Meeting minutes include the parent seeking . (Ex 3-4) Whether or not parent wanted the services the recommended services to deliver a FAPE are to be included in the IEP. Especially considering the needs in light of the IEP note that sets forth that the student has expressed ideation (Ex 1-6). DOE documents also recommend related services of . (Ex 4-9) and services (E 5-1)

Though a lengthy recitation of testing is included in the IEP no explanation is made nor services set forth to address the student’s apparent delay. Student functional and instructional levels are and (Ex 1-

14). No goals are included in the IEP.

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.

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 an appropriate IEP for the 2014- 2015 school year.

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

( )

Witnesses detailed an understanding of the student’s needs and the appropriateness of the program for the student for the 2014-2015 school year.

describes : “

” (T 26) serves a and special education population, with about in the program. (T 26) The Program has students. (T 49)

“

” (T 27

Witnesses identified student areas of (T 28-29, 78-79) and services to address special education needs. . (T 30, 38-39)

was noted to benefit the student. (T 29-30, 35-36 & 80-81)

DOE related services, as recommended in DOE documents but not the IEP, are delivered to the student at and meeting student needs. (T 34-35 & 69)

Student progress in the program is detailed by several witnesses. (T 45-46, 51, 82-84)

Witnesses consistently testified as to the appropriateness of the program.

(T 73-74 & 105-107)

DOE did not contest any evidence presented by the parent nor call any rebuttal witnesses.

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.

TRANSPORTATION

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch.

Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

Parent seeks reimbursement for door to door special education transportation.

Parent obtained reasonable transportation services for her child.

Parent is seeking reimbursement for transportation paid for in cash to a driver.

(T 103-104) Total amounts include and for . (T 105, Ex M)

I find the student is entitled to transportation services and parent is entitled to reimbursement for delivering transportation services to the student.

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting, participated in requested evaluation and communicated her concerns to the DOE.

In what was obviously a turbulent time for the parent and child the parent consistently communicated with the DOE and in no way hindered any attempt to evaluate, develop an IEP or place the child in an appropriate DOE program.

In September parent went to and asked for a placement. No seats were available. (T 93-94) DOE evaluated the student and had an IEP meeting which developed a deficient IEP. Ex 1)

Meanwhile, parent was acting diligently to find placement for her child. CSE tested the student and sent the parent to look at schools. W hile awaiting DOE placement the Parent enrolled the student at ( ), a DOE school. (T 94 & 115)

After parent placed the student at the CSE sent the parent a placement of . (T 124)

Parent continued to object to the DOE recommendation at the IEP meeting and thereafter. Parent had several meetings including IEP meeting of 10/10/2015 which recommended an placement. (T 97, Ex 1-11) Parent believes at point was recommended. (T 112)

Parent disagreed with placement (T 97) but agreed to related service of

. (T 98)

Parent identified correspondences of 01/20/2015 (Ex B) and 11/14/2014 (Ex C). (T 125-126) Exhibit C details parent concerns regarding her student and concerns regarding the change in recommendation from to . (Ex C)

accepted the student and parent signed a contract. (T 103, Ex J)

Parent does not presently have sufficient assets to pay the tuition. Last year parent made about . This is borne out by copy o f . (Ex K)

. (T 103) Parent is just returning to word after being . (T

1338) Tuition is approximately for the year. (T 103) Parent has no other source of income (T 136, Ex I) and no asset to draw upon to pay the tuition. (T 137) Family is currently in foreclosure. (T 137)

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 uncontested testimony regarding her financial ability and status. I find the parent testimony and documents sufficient to explain the parent’s financial capabilities and resources. I find that the parent has sufficiently established entitlement to direct funding of the student's tuition costs for the 2014-2015 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.

I find that the parent cannot afford to pay and receive reimbursement of the tuition and is entitled to direct payment of tuition to .

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2014-2015 school year.

2. The parent shall be reimbursed for in the amount of and for .

3. The DOE shall pay directly the tuition due or to become due for student attendance for the 2014-2015 school year.

4. Total amount of tuition to be directly funded is

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

6. This decision is subject to appeal and review by the State Review Officer.

Dated: June 16, 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 THE RECORD

PARENT

ENTERED 05/11/2015

A Impartial hearing request dtd 3/12/15, two pages

B Parent's letter to CSE dtd 1/20/15, four pages

C Parent's letter to CSE dtd 11/14/14, four pages

D eval dtd 11/12/14, 5 pgs

E program overview, 14-15 school year, one page

F 3rd quarter rpt cd 14-15 school year, six pages

G Student sched dtd 5/4/15, 1 pg

H Attendance record dtd 5/4/15, 1pg

ENTERED 05/18/2015

I affidavit, 5/15/15, 1 page

J enrollment contract, 12/1/14. 2 pages

K statement, 2014, 1 page

L , 2014, 1 page

M , 2014-2015, 1 page

DEPARTMENT OF EDUCATION

ENTERED 05/11/2015

1 IEP dtd 10/10/14, 17 pages

2 Prior written notice dtd 10/14/14, five pages

3 CSE minutes dtd 10/10/14, 5 pgs

4 9/2014, 11 pgs

5 & eval dtd 9/18/14, five pages

6 Psycho-ed eval dtd 9/11/14, 14 pages

7 Parent vocational interview dtd 9/11/14, three pages

8 Social history update dtd 9/11/14, two pages

9 Excluded incomplete document

IMPARTIAL HEARING OFFICER

ENTERED 05/11/2015

I Letter of appointment dtd 4/7/15 three pages.

ENTERED 06/04/2015

II Grant of Extension of Compliance Date,05/19/2015, 3 pages