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: May 14, 2015

May 28, 2015

June 4, 2015

Actual Record Closed Date: July 9, 2015

Hearing Officer: Regina Brandow, Esq.

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

Attorney — Student

Father — Student

Mother — Student

District Representative — DOE

DOE (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 28, 2015

Attorney — Student

Mother — Student

(Via Telephone) — Student

Classroom Teacher (Via Telephone) — Student

Chairperson's Designee CSE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 4, 2015

Attorney — Student

DR., — Student

Parents

Parents

Observer — Student

Chairperson’s Designee CSE — DOE

INTRODUCTION & PROCEDURAL HISTORY: — DOE

This hearing was requested on March 17, 20151, for amongst other things, tuition reimbursement for March 2, 2015, through June 30, 2015, including denial of free appropriate public education, failure to child find, reimbursement of monies paid to date and any payments made in the future, plus transportation, related services, and costs and fees.2 I was appointed on March 27, 2015; resolution was attempted, and the due process hearing commenced.

The hearing was requested, pursuant to the Individuals with Disabilities Education Improvement Act of 2004 (IDEIA), §§1415 (f) & 1412 (a) (10) (C).

Upon appointment, a pre-hearing conference was held on April 17, 2015.

Thereafter an initial hearing was held on May 14, 2015, and thereafter on May 28, 2015, and June 4, 2015. Appended to the record are lists of persons in attendance, along with the parties and witnesses noted (“Exhibit IHO 1”) and the documents received into evidence (“Exhibit IHO 2”). The record close date is July 9, 2015 with the decision date set for 30 days thereafter, July 23, 2015.

BACKGROUND:

During the 2012/13, 2013/14, and 2014/15 school years, the STUDENT attended the (“Public School”) for , and . It was testified to that the Student received services during grade.

TR. 51/6-25. Despite these interventions, along with support paid by the Parent (Tr. 312/3), the Student received a letter (Tr.309/11-14) and it was reported that she (Tr. 307/10-23). The parents requested daughter to be evaluated during her in April 2014 (PA); however the New York City Department of Education (“DOE”) did not evaluate and convene a Committee for Special Education (“CSE”) until January 2015 (D14). In preparation of the CSE the Student was

For confidentiality the student shall be referred by his or her initials and/or STUDENT. evaluated, including a that recommended that she be transferred to another school. D 6. The CSE classified the Student and her classification is

(“ ”), which there is no dispute to. STUDENT was removed by the Parents in March 2015 and she was unilaterally placed at the (“Private School”) by the parents who are seeking reimbursement.

The documentation, evaluations and or progress reports provided by the Department of Education (“DOE”) were:

Dr an’ al report dated 9/3/2014 which indicated that the student’ on i al; however she ha es and need hs and may consider ic evaluation at that time. D1 erd ical report dated 10/16/2014 which indicated the studen tion record. D2

No D3.

Notice of request for social history dated 10/8/14. D4

Parent Letter dated originally 4/4/14 and 9/16/14 indicating second request. D5

Psychoeducational report dated 12/2/14 that was based upon student and parent interview, along wi in C-IV, WJ_

Integra

ull le s high average ran

essing s in the 27th percentile, which i

functioning that may be attribut the anxiety n er behaviors. Other scores in the Beery high avera to superior, es ix reas Her academic as t in readin ated low avera e luency (18th percentile), which was lower than the evaluator expected cons ove average per al reasoning.

Likewi ith her math, the stu ored low ave

ut n task (16th percentil the written, where she was found to be . The assessment indicted that the student denied any and . She considers herself and ; however the evaluator noted notable problems with and . Student did report some progress in due to provided by the parents. The evaluator indicated overall that her performance is . The evaluation also noted that the philosophy of the current school appears to be a poor fit for the Student. Recommendations included transfer to another school that emphasizes and ; continue with ; for her limited progress during the last year; and receive considering her . D 6.

Amended Psychoeducational report dated 12/2/14. D7 (MARKED

ONLY NOT ADMITTED). D 7.

Classroom observation dated 1/12/15 which indicated that while the

Stud ions, she appeared to have difficulty w

room. D

tional Evaluation dated 10/29/14 where the classroom observation showed that the St times; the teacher reported concerns roving; teacher also reported er ersals were n p

l

do so; further difficulty was noted in

Student’s abili e

uickly. Follow up w etrist

was recommended. She was noted to have difficulty in the despite showing on the test that she fell within the range. The report indicated that the Student was receiving services ( ) and her mother had checked last year, which were found to be impaired. The evaluator noted that her issues were related to the and skills and recommended p a week. In addition, there were a number of accommodations noted for her

/ / / and concerns. D 9.

Parental consent dated 10/16/14. D 10.

Social History dated 10/16/14 where it indicates that the Parents were very concerned about their daughter last year and hire utor an gist at their own expense to address emic problems, w ding ting onal issues; last year’s teacher called in March to express her concerns about daughter’s abil used. During rade she exhibited s lems and dur rade the student recei nd bad reports from teacher. D 11.

Meeting notice dated 12/18/14 for Committee for Special Education (CSE) to convene on 1/6/15. D 12.

Meeting notice dated 1/5/15 for Committee for Special Education (CSE) to convene on 1/13/15. D 13.

Individualized Education Program dated 1/15/15 where d learning characteristics it indicates that the s eding them; working with Student f k for help; her performance was nev ess weaker given Student’s performance on the testing; ther impair th readin ills; math is the biggest struggle for her;

, however, trouble and part; teacher shared that children like become more aware of individual differences and it was reported her difficulties; she is aware of (level ) and Parents had doubt this was enough support for her. The recommendations included a ( ) for per week and per week in separate and in the classroom. of per week for and ( ) per week each. The goals were where Student be able and be able to ; ability to ; , such and able to ; and goals: where , the Student

will ;

. The goal will give support for her and . D 14.

Prior Written Notice dated 2/2/15. D 15.

Consent for Initial Provision of Services dated 2/2/15. D 16.

The Parents provided, amongst other things, the following documents, evaluations, reports on the STUDENT:

Parent letter dated 4/4/14

chiatric evaluation dated 2/16/15 indic t

a Di Disor

D ehension. Furt

hiatrist indi rapeutic school ructured with a imum 8:1 ratio. PB.

Letter dated 1/14/15 from Student’s Social Worker (SW), who was ng therapy. The SW described the Student’s h of therapy starting with an initial referral in December 2013 and it included a history of the struggles that the Student was experiencing over the course of the time. PC.

l H es

o completed by Student’ de teacher, which indicated that 3

en) fo il ed

at go” rs an ng an on as problematic.

PD.

o completed by Student’ or that likewise indicated 3 en) for having difficult on gh rt ed ds; go”; and indicated en ul. For th ng an on problematic were indicated again. PE.

o completed b d on teacher where 3

en) was fo ed and fo cs an or performance it was indicated as problematic in a number of areas. PF

Parent email dated 5/19/14 to rade teacher asking to complete

ADHD rating survey for the Student. PG

Email forwarded from Parent indicating her inability to attend the January 13, 2015, meeting and referring to her initial request in April 2014. PH

February 8, 2015, Parent letter to the Public School Principal and CSE Chairperson stating her concern relating to the delay in the IEP due to the revised psychological; notice of the Student’s withdrawal from the Public School; placement at the Private School and requesting tuition reimbursement. Letter was sent certified and received by the NYS DOE

2/11/15. PI.

Parent letter dated March 2, 2015, stating that th ic evaluation by Dr an dated February 16, 2015, is enclosed and for the CSE to consider in reviewing the student’s needs and reserving the right to seek reimbursement for such. PJ.

Private School literature. PK.

Student schedule at the Private School.

st

grade final progress report that indicated lev r tand read writin ile m tanda stud ta t stu -telling indicated some areas of concer

2nd grade Progress Report November 2014 indicated that the St stan standards in a number or s, g, wr g and 2nd grade January 2015 Progress Report less meeting standards than the previous report and indicated more approaching standards and indicated needs imp ment in math. PP.

Email dated 2/5/15 f tudent’s drama teacher at the Public School indicating Student’s tu from 1st grade; however, she same behaviors. PQ.

Private School contract signed by the Parent 3/20/15 indicat n for

$19,264.00. PR

Private School certification of payments made ent for

$19,264.00, along with copies of checks dated 2/20/15 . PS

Psychia ’s invoice for $1200. PT

Doctor’s repo /14. PU.

Prescript n for Student stating OT is needed. PV.

Private School progress report dated 4/29/15 which stated that Student started 3/9/15 and she is starting t ps ol an ed. PW.

Parent email dated 4/29/14 rade teacher requesting a meeting with her. PX

The exhibits were marked and admitted accordingly into evidence.

DOE’S WITNESSES

There was one (1) witness that testified on behalf of the DOE at the hearing and it was the followi

S.F., DOE Sch gist (via telephone) : On direct, the Sch gist testified that she worked at the Public School w E.B.; however, she had no personal experience of the Student (Tr. 50/9); she chaired the CSE on January 15,

2015, which she does not normally do. Tr. 145/2 S.F. became aware of the April 2014 parent request for evaluation in preparation of this hearing. Tr. 138/7.

PARENT’S WITNESSES

There were four (4) witnesses that testified on behalf of the Parent at the hearing.

In summary they testified in the succeeding order to the followi

. M., Administrator/Teacher Supervisor (by telephone): The Administrator testified that she is certified early rade teacher (Tr. 174/18/-20); she is an

Administrator and Teacher at the Private School (Tr. 176/3-5); description of the Private School where each class @ 14 w ixed age classes o a 2 year span with children with or without IEP’s and how the Teachers are trained and each child’s plan is developed individually (Tr. 177/1-13); each Teacher knows every student at the Private School and how they work (Tr. 181/17); related services are provided (Tr. 184/2); there is collaboration between Teachers & Service Providers (Tr. 184/15); knows Student and that she cant delays di ti ma onal sing skills (Tr.

187/21-25); requi tion with some support services blended seamlessly in her week (Tr. 188/4-6); her progress has been remarkable (Tr.188/8);

Student is feeling the support and encouragement and she has had a significant attitude change about herself and her learning (Tr. 188/13-18); upon arrival Studen iors

; and and (Tr. 189/3-12); Student benefits from “ . She needs a . She needs continued support , ,

, , especially the assignments, and monitoring her , and and ct. [Student] needs . She needs and modifications, ” (Tr. 192/5-25) and , , Teacher to provide that (Tr.193/22); her familiarity with the public schools (Tr. 196/22)

and how it is not appropriate for the Student to be in the Public School with students and the special education services provided as described in the IEP and she requires and support at the Private School in order to gain meaningful progress. (Tr.

196/20). On cross the witness reiterated she did not have a certification in special education (Tr. 196/11) nor taught in the public school for the past 16 years (Tr. 196/19)

and as part of her responsibilities she attends the public schools periodically (Tr. 197/1); she is familiar with a program but not sure of the ratio (Tr.07/17-21) and the IEP did not provide enough support for the Student and how the Public School does not offer the support Student needs (Tr. 219/Tr.5-10). Private School does not but the Student and . (Tr. 233/10-17).

, Classroom Teacher (by telephone): Classroom teacher of a and class (Tr.237/19); familiar with the Student since March when she started (Tr.238/16); class size is students with Teachers (Tr.238/23); how instruction is taught (Tr. 240/5-6); daily opportunities for (Tr.

241/20); Student had a number of weaknesses in her ; , (Tr. 242/10-14); she would (Tr. 242/22); Student would (Tr. 244/4); IEP in a regular class with daily does not provide enough support for Student in and out of classroom (Tr. 245/1-2) and she would regress (Tr. 245/19); she is (Tr. 249/7); she receives week and a week (250/10-11); Student works daily on such as (Tr. 250/20-21) where it assists with (Tr. 251/1); when she arrived (Tr.251/14-15)

and now she is closer to (Tr.252/14); Student receives minutes of instruction in , and (Tr. 257/18-19).

, (by telephone): Witness established his extensive educational and professional experience as a . Tr. 269/7-270/25. He evaluated the Student where he initially collects background information from the District and interviews the parent then evaluates the Student. He then attended the Public School where he conducts a clinical interview of the Student for approximately . Tr.

273/5. Then he administers the testing – the , and the .

Tr. 273/22-25. The results in his opinion are reliable. Tr. 276/9. He testified to the District’s request to amend his initial report and in his professional opinion his recommendations that the Student be transferred to another school and receive support remains his professional opinion. Tr. 278/25. He further testified that the recommended Student’s IEP was inappropriate. Tr.279/13 & 24. On cross he testified he did not observe the Student in the classroom nor any classroom. Tr. 281/3. His recommendation was to address the marked discrepancy between the child’s potential and her level of achievement. Tr. 284/16-18. He further testified that it is “extremely unusual to see a student with ” Further that “[a]ll the evidence was that

.” Tr. 292/23-25. Recommended to transfer

based upon his research of the Public School and its mission statement and the observation at the Public School. Tr. 296/4-23. Further that the support would be inappropriate for this Student. Tr. 298/16.

, Parent (in person): The Parent testified about the difficulties in her daughter’s (Tr. 307) and how she put her daughter in to address her and . (Tr. 308/9-10); the February letter and how her was at a level ; how Student should be at level and Student was receiving . (Tr. 309/22-25). Parents hired at own expense and recommended a referral to the CSE, a former teacher. Tr. 312/14-15. She did not withdraw her request for an evaluation. Tr. 318/6. Despite the at end of Student was at a level . Tr. 319/11. In May 2014 the recommended the rating scales. 319/22-25. In September 2014 Parent had to resubmit the same request to evaluate her child as no one from the District contacted her. Tr. 232/8-10. Her child struggled again in . Tr. 323-324. There was a delay in generating the IEP due to the report. Tr. 334/4-20. Parent initially thought was not . Tr. 336/9. Parent testified about her child ’s progress at the school – . Tr. 346. Parent provided notice to seek reimbursement.

Tr. 349/17 & PI. Parent paid tuition of for March 2015 through end of school year. Tr. 353/22. On cross the Parent testified that she and her legal representative did not ask questions at CSE and she did not inquire as to the goals and program.

PARTIES POSITIONS:

A. The District’s Position:

The District’s position was that the District proved it offered Free Appropriate Public Education (“FAPE”) during with services based upon District’s witness’s hearsay testimony and at the IEP meeting in , (D 14) and any delay in evaluating the Student in the Spring of 2014 was by agreement where the Parents consented to wait until the Fall of 2014 and any delay thereafter in convening the CSE in December 2014 onto January 2015 is due to the Parent’s delay. Further that at the CSE meeting the CSE considered all evaluations, including the original

Evaluation. The Parents did meet their burden in establishing that the private school was appropriate as it is a general education independent school. Further, the equities do not favor the Parent; however the District does not cite any specifics how or why.

The Parent’s Position: The Parent argues that there should be a finding that the CSE failed to offer FAPE for the 2014-2015 school year procedurally by not acting upon the initial request in April 2014; if the request was allegedly withdrawn then the District failed to obtain the withdrawal in writing; failed to obtain a timely consent to evaluate upon the initial request in April 2014. That the District failed to provide FAPE as it rejected the recommendations of the psycho-evaluation. Further that the Private School is appropriate as it provides the instruction throughout the day that the Student requires; and that the Parents cooperated with the District. The Parent wrote letters, attended meetings, consented for their child to be evaluated and provided notice to the District.

FINDINGS OF FACT AND CONCLUSIONS OF LAW:

In regard to petitioner's argument that respondent violated its "child find" obligations with regard to the student, the IDEA places an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]; 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400, n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.111[c][1]; 8 NYCRR 200.2[a][7]). To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children (Application of a Child Suspected of Having a Disability, Appeal No. 05-090; Application of a Child with a Disability, Appeal No. 04-054; Application of a Child Suspected of Having a Disability, Appeal No. 01- 082;

Application of a Child with a Disability, Appeal No. 93-41). The purpose of the "child find" provisions of the IDEA are to identify, locate and evaluate those students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 436 F.3d 52, 65 [2d Cir.

2006] [holding that the purpose behind the "child find" provisions is to locate children with disabilities who are eligible for special education services who might otherwise go undetected]). Here the Student during was receiving services, which included instruction. Despite these additional services the student was making insignificant progress where the District issued a letter. I do not find

District’s testimony that this is a matter of routine that a good number of students receive such a letter and not to be concerned with. In addition, the Parent requested an evaluation in April 2014 and the record lacks credible evidence by the District that the Parent agreed to delay the evaluation. There is no written withdrawal. See Part 200 of the Commissioner’s Regulations §200.4(a) (7). Considering District’s reliance on witness hearsay testimony without any written documentation and Parent’s direct testimony, I find that the District violated the "child find" provisions of the IDEA.

Two purposes of the 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.,557 U.S. 230, 239 [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; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2dCir. 2012]; 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).

Here the District failed to evaluate and provide the specialized instruction to the Student during her since the April 2014 letter. The fact that the Parent resubmitted the request again in writing and the evaluation did not take place until December 2014 indicates a continuation of the denial through . Whatever progress the Student made during that time period was trivial. See PM, PN & D6 reporting Student performing poorly and her limited academic progress.

At the CSE the District did not offer FAPE to the Student. Based upon the evaluation and the Student’s experience at the Public School, the continuation of the class with instruction ( ) in the IEP did not provide the Student the needed support in the classroom. I agree that the Student needed a and to give her the continued support and encouragement in the classroom. The IEP as drafted was not reasonably calculated to confer an educational benefit to the Student. 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 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]). I find that the District failed to offer the Student an appropriate public education.

Since the District did not provide a free appropriate public education then the analysis of tuition reimbursement requires that I need to proceed to Prong II.

A board of education may be required to reimburse parents for their expenditures for private educational services, including transportation, 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.9 359, 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., 201.

In order to meet this burden, a parent must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; see Burlington, 471 U.S. at 370), i.e., that the private services addressed the child's special education needs (see Gagliardo, 489 F.3d at 112, 115; Frank G. v. Bd. of Educ., 459 F.3d 356, Walczak, 142 F.3d at 129; Matrejek, 471 F.

Supp. at 419), which is whether the Parent’s private program addressed the student’s unique needs. 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 M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27,

2010]).

In this case I find that the Parent’s witnesses, the Administrator and the Classroom teacher testified how it met the Student’s unique needs. I reviewed their testimony and it reflects how the School as a program provides services, i.e. , check for understanding and how in the classroom the specialized instruction was provided to the Student’s unique needs by in the classroom with the instruction needed.

Rather than , the staff assists the Student to

.

In regard to the related services, testimony was provided that the mandated related services, , was provided by the Private School to the Student. There is no testimony provided by the Parent as to the cost of such related services nor any documentation for this hearing officer to ascertain what amount, if any, to reimburse the parent. In regard to transportation and compensatory services, the Due Process Complaint seeks transportation and compensatory services, Parent’s counsel at the pre-hearing conference and at the hearing did not raise these issues; I therefore shall not consider them. In regard to the reimbursement of the report of , the record does not establish how this report was and is useful for CSE going forward. Likewise, I do not find support to warrant the reimbursement of this evaluation.

Prong III - Equitable Considerations:

I will address the remaining issue. (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and (20 U.S.C. § 1412[a][10][C][iii][III]; 34 C.F.R. §

300.403[d][3]). The record reflects that the Parent cooperated with the District during the Student’s 1st and 2nd grade; Parent notified the District to evaluate; she did not withhold consent. I do not find the scheduling of the CSE at the end December to the beginning of the 2015 a delay by the Parent to warrant a finding that the Parent failed to cooperate.

She waited for the IEP; however, it was delayed; she then filed a ten day notice dated February 9, 2015. See PI. Student’s placement at the Private School commenced in March 2015. According to the payments, such payments by the Parent started February 20, 2015 (P S). Last, the enrollment contract indicates tuition for and it does not indicate any outside or separate costs for the related services. PR.

In this case, I find that the equities favor the Parent.

ORDER:

IT IS THEREFORE ORDERED THAT based upon my findings herein I find that the Parent’s request for tuition reimbursement, for the cost of the Parent’s unilateral placement of the STUDENT to the Private School is hereby granted from March 2, 2015, through June 30, 2015, for the program period and the request for cost and fees (20 USC 1415 (i) (3) (B) (C)) be granted to the Parent in line with prevailing arguments.

Dated: July 24, 2015

REGINA BRANDOW, 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

DEPARTMENT OF EDUCATION

1 Report by Dr. dated 9/3/14, 4 pp.

2 Report by and Dr. dated 9/8/14

3 Omitted

4 Notice of Social History dated 10/8/14, 1 pp.

5 Initial Referral dated 4/4/14 and 9/16/14, 2 pp.

6 Psychoeducational Report dated 12/2/14, 7 pp.

7 Amended Psychoeducational Report dated 1/27/14, 7 pp.

8 Classroom Observation dated 1/12/15, 1 pp.

9 Evaluation dated 10/29/14, 9 pp.

10 Initial Consent dated 10/16/14

11 Initial Social History dated 10/16/14, 5 pp.

12 Meeting Notice dated 12/18/14 for CSE meeting on 1/6/15, 3 pp.

13 Meeting Notice dated 1/5/15 for CSE meeting on 1/13/15, 3 pp.

14 IEP dated 1/20/2015, 15 pp.

15 Prior Written Notice dated 2/4/15, 4 pp.

16 Consent dated 2/4/15, 3 pp.

IMPARTIAL HEARING OFFICER

I Due Process Complaint dated 3/17/15

PARENT

A Letter from Parents dated April 4, 2014, two pages

B Evaluation by Dr. , four pages

C Evaluation by , January 14,

2015, three pages

D , undated, two pages

E , undated, two pages

F by , two pages

G NONE --- ---

H Email from Parent dated January 9, 2015, one page

I Letter from Parent to District, February 9, 2015, five pages

J Letter from Parent dated March 2, 2015, four pages

K Document from the , undated, five pages

L Schedule for 2014-2015, one page

M Final Progress Report, nine pages

N Progress Report dated November, 2014, pages

O NONE --- ---

P January, 2015 Progress Report, nine pages

Q Email from , teacher, to Parent, dated February 5, 2015, one page

R Comprehensive Education Program Enrollment Agreement with dated March 23, 2015, one page

S Certification of Payment and Attendance notarized

March 24, 2015, four pages

T Evaluation from Dr. dated

March 1, 2015, one page

U Report by Dr. electronically signed September 3, 2014, four pages

V by Dr. of dated 01/26/2015

1 See Impartial Hearing Request dated March 17, 2015 as H 1. References to the hearing exhibits submitted by the Impartial Hearing Officer are cited with the prefix “H” followed by the appropriate exhibit number. References to hearing exhibits submitted by the Parent are cited with the prefix “P” followed by the appropriate exhibit letter. References to the hearing exhibits submitted by the District are cited with the prefix “D” followed by the appropriate exhibit number. Specific Transcript references are noted as “Tr.” then the actual Page Number, followed by a forward slash for the Line number; for example “Tr. pp.3/13”.

W Teacher Report dated April 29, 2015, three pages