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: June 15, 2015

June 24, 2015

Actual Record Closed Date: July 8, 2015

Hearing Officer: Daniel Ajello, Esq.

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

Advocate — Student

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 24, 2015

Parent Advocate — Student

Parent/Father — Student

Principal, (Via Telephone) — Student

(Via Telephone) — Student

CSE District Representative — DOE

INTRODUCTION

On 05/05/2015, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).

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

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

This matter was instituted by the impartial hearing request dated 05/03/2015 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 2014-2015 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2014-2015 school year. (Ex A 1)

Relief sought includes funding or reimbursement for unilateral placement at the

. ( Ex A)

BACKGROUND

Most recent IEP includes: Student is currently about to turn years of age, classification of , testing scores fall in the “ ”, diagnosed with , mandated for services (Ex 2-1); ,

, (Ex 2-2); needs include

, , ,

, and (Ex 2-3); recommended services include a Program

, - ( ) services for minute

sessions weekly, ( ) for minute sessions

weekly, ( ) minute sessions weekly,

Parent Training and Counseling monthly for , and (Ex 2-15); transportation accommodations of and (Ex 2-18); of for and (Ex 2-19); and standard promotional criteria (Ex 2-19).

Early student history includes that he was identified with a disability, , , he attended at where there was a lot of regressions and deteriorated (T 83). Then while at the student was diagnosed with (T 84).

THE PARENT’S POSITION

( ) presented the parent’s position.

notes the student’s dual diagnosis of and , and had issues in . (T 18-19)

contends the current IEP is not appropriate and denied the student a FAPE.

(T 18-19)

Parental placement at is “

” (T 20)

also contends equities favor the parent who was involved in the IEP process and gave timely notice to the DOE regarding the placement. (T 21)

Parent cannot afford tuition and seeks direct payment (T 22)

PARENT WITNESS

( ) reviewed her educational and professional background and testified as the Principal of . (T 23-24)

“

” (T 24)

School characteristics include: classrooms with no more than students per class, each class has a master teacher, the school has ,

, , , and instruction (T 25), and school does not . (T 26)

data is taken and analyzed. (T 26)

Teachers are trained in and . (T 26)

is familiar with the student having met the student and family during the intake evaluation. Student began attending the program in September 2014. (T 28)

described some aspects of the intake process. (T 43)

described the student’s academic skills at the time of intake: “biggest deficit was like what we would call skills… …

level” (T 29); did not have (T 29); was not ,

, (T 30); , and (T 30-31).

Student has a in place. (T 31)

Student is in a class of (T 31) who are appropriate for the group. (T 32)

Class has a master teacher, a and other instructors.

Including related service providers the teacher student ratio is . (T 32)

Students are “ instruction.

” (T 55)

Student receives related services at school, which includes “

” (T 33)

Related services are based on the IEP recommendation and then adjustments are made throughout the year, (T 50-51)

Witness reviewed services provided to the student which are included in the student schedule. (T 34-38 & 48, Ex H)

Witness has seen progress in: the student is able to ,

,

, (T 38); progress in ,

, and skills such as (T 39).

Student is noted to have improved in the area of

. (T 55)

is familiar with tuition. (T 40)

Parent is responsible for tuition, which includes related services. (T 40 & 59, Ex D) Tuition is adjusted for months since the student did not attend during the summer. (T 58-59)

Scholarships or breaks are not given by . (T 40)

PARENT WITNESS

( ), reviewed his educational and professional background and testified as an at . “

” (T 62-63)

is the student’s and sees the student times

weekly, since September 2014. (T 63-64) sessions are and one is

. (T 71)

Student presented in September as “ ”

“A child that would be , and . And he would

…” (T 64)

Student’s issues were addressed: “A significant amount of time was given in

– , in a more appropriate manner, throughout the day.

…and the was also a manner in which we would implement any techniques that .” (T 65)

Witness referred to the student’s annual review which included information relating to and the which is utilized throughout the school day. (T 66-67 & 72-73, Ex I 11)

The student has responded well to the . “A lot of adaptations were made, in order to keep up with the changes. An adaptation might – a particular type of

, , as well as

, . Those were adapted through the year, and he – he has gotten to a point where, in session – in , for example, and the discussions with the teacher, in classroom, he is able to and …for at least , sometimes even longer.” (T 68)

is in communication with the parents and has made a visit with other staff concerning the student. (T 68)

“Parents were concerned about that they needed help with, in order to . So, a like the one that I described for school, was designed for him …the visit was to further make recommendations and modifications to and suggestions were sent to the family after meeting…with the specific recommendations…to help (student) be more available and more part of the family and seek whatever needs he needs, in a more purposeful and conductive way.” (T 69)

PARENT WITNESS

( ), the student’s father testified.

Student was identified with a disability, , , he attended at where there was a lot of regressions and deteriorated

(T 83); while at student was diagnosed with (T 84).

Parent identified letter of 06/24/2014, rejecting the DOE placement, including a recent student evaluation, and asking for a CSE meeting. (T 85, Ex B)

Another meeting was held but the recommendation did not change. “they said they couldn’t offer more than a , and they didn’t have an program.” (T 85)

Parent enrolled the student at , signed an Enrollment Contract, paid towards tuition, and a balance is due. (T 86, Ex D & K)

is holding off while parent seeks payment from the DOE. (T 87)

does not . (T 87)

Parent identified 2014 Tax Return and contends family cannot afford to pay the tuition balance for . (T 87-88)

If parent does not prevail at hearing he will owe the balance of tuition to

. (T 88)

If he does not prevail parent will

. (T 88 & 92)

Parent is in touch with and believes his child has made progress. (T 88)

Parent sees progress in , he knows ,

. (T 88-89)

Parent visited the recommended DOE placement. “they said they couldn’t offer anything more individualized. It is what it is.” (T 89)

Parent would have been receptive to a State Approved Non Public School.

Parent researched and found . (T 90-91)

Parent has children. (T 93)

Parent is

. (T 93-94)

DEPARTMENT OF EDUCATION POSITION

( ) CSE District Representative, presented the DOE

position.

offered documents into evidence and set forth the DOE position: “The Department of Education's position today is that we will concede Prong 1.” (T 6)

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 OFFER OF FAPE FOR THE 2014-2015 SCHOOL YEAR

The district conceded that it failed to offer the student a FAPE for the school year in question.

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

PLACEMENT

DOE did not present any witness nor any evidence to contradict any evidence or testimony presented by the parent in support if Parent’s case.

The question of whether was an appropriate unilateral placement is principally determined by whether the program provided "educational instruction specially designed to meet the unique needs of [the student]" (Rowley, 458 U.S. at 188-

89; see Gagliardo, 489 F.3d at 115; Frank G., 459 F.3d at 365). As discussed below, the evidence in the hearing record submitted by the parent in this case was sufficient to identify the student's unique individual needs and to satisfy the parent's burden to establish the appropriateness of the student's unilateral placement at for the 2014-

2015school year.

I find the witness testimony in support of the program for the student to be credible and uncontested. Witnesses and evidence detailed an understanding of the student’s needs and the appropriateness of the program for the student for the 2014-2015 school year. Testimony regarding the program for the student included: “ ” (T 24); no more than students per class, related services are provided (T 25); (T 26); and Teachers are trained in and (T 26).

Additional program details are included in Evidence as Program

Details. (Ex G)

Student needs were identified through the intake process and further tailored while the student was in attendance at . (T 29, 30-32, 43, 50-51 & 64)

Services provided to the student include a (T 31); class of (T 31); who are appropriate for the group (T 32); the teacher student ratio is . (T 32); related services of “ ” (T 33); and “ ” (T

65).

also visited the student’s to provide additional support, akin to parent training, to address parent concerns regarding . (T 69)

Progress is noted by witnesses in areas. (T 38-39, 55 & 69) Parent notes progress in , , and following instructions. (T 88-89)

Annual Review includes information regarding the student, his program and progress. (Ex I) Progress for example is noted through (Ex I 1) and . (Ex I 2)

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 transportation for the student for the 2014-2015

school year.

I find the student is entitled to transportation services as outlined in the IEP. Most recent IEP includes: transportation accommodations of and (Ex 2-18).

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at requested meetings (Ex 1,2 &4), communicated concerns to the DOE (Ex B, T 85 & C), and in no way frustrated any attempt by the DOE to deliver a FAPE to the student. .

Parent would have been receptive to a State Approved Non Public School. (T 90-91)

Parent letter of 08/21/2014 advised the DOE of her intent to enroll the student in a private placement at public expense. (Ex C)

Parent enrolled the student at , signed an Enrollment Contract, paid towards tuition, and a balance is due. (T 86, Ex D & K)

Testimony was consistent that the parent is responsible for the balance of tuition. (T 40, 59 & 88, Ex D)

Tuition has been adjusted for months since the student did not attend during the summer. (T 58-59)

Scholarships or breaks are not given by . (T 40 & 87)

Total tuition amount, inclusive of related services is . (Ex D)

Parent has paid thus far, leaving a balance of . (Ex E)

Parent identified 2014 Tax Return and contends family cannot afford to pay the tuition balance for . (T 87-88) If he had to fund the tuition directly parent would . (T 92)

If he does not prevail parent will

. (T 88 & 92)

Parent seeks reimbursement and direct funding, or prospective payment, of tuition for the DOE. Parent has the burden of establishing their inability to pay for the student's private school tuition (see Application of a Student with a Disability, Appeal No. 12-004; Application of the Dep't of Educ., Appeal No. 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041). The parent provides a copy of 2014 Tax Return (Ex J), indicating income of . (Ex J)

Parent evidences an inability to pay the balance of tuition at the present time.

I find parent is entitled to reimbursement for paid towards tuition and direct payment of the balance of tuition in the amount of

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 any payment made to for 20142015 school year tuition. Presently that amount is .

3. The DOE shall pay directly the tuition due or to become due for the 2014-2015 school year. Presently that amount is .

4. Total amount of tuition to be reimbursed or directly funded is

.

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

6. DOE shall provide special education transportation to the student for the 2014- 2015 school year, inclusive of and .

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

Dated: July 13, 2015

DANIEL AJELLO, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO RECORD

PARENT

ENTERED 06/24/2015

A 5/13/14, Parents’ Impartial Hearing Request, 4 pgs.

B 6/24/14, Parents’ Letter Rejecting Placement, with Enclosed Evaluation Report,

5 pgs.

C 8/21/14, Notice Letter of Unilateral Placement, 3 pgs.

D 9/1/14, Enrollment Contract, 3 pgs.

E 6/11/15, Affidavit of Payment, 1 page

F 6/11/15, Attendance, 1 page

G Undated ’14-’15 School Year, Mission, 8 pgs.

H ‘14-’15 Student Schedule, 1 page

I 4/13/15, Annual Review, 21 pgs.

J 5/19/15, Tax Returns, 18 pgs.

K September 2014, Proofs of Payment, 2 pgs.

DEPARTMENT OF EDUCATION

ENTERED 06/15/2015

1 IEP dtd 7/23/14, 22 pgs.

2 IEP Revision dtd 8/14, 22 pgs.

3 Prior Written Notice dtd 7/24/14 and 5/30/14, four pages.

4 IERP dtd 5/5/14, 20 pages.

5 CSE Minutes, 7/23/14, pgs

6 Parent Letter, 7/23/14, pg.

7 , 6/9/14, 3 pgs.

8 Education Progress Report, 6/5/14, two pages.

9 Rpt, 1/31/14, two pages.

10 Eval, 1/31/13, three pages.

11 Rpt, 2/15/14, three pages.

12 CSE Minutes, 5/5/14, two pgs.

13 Observation, 2/4/14, four pgs.

14 Psycho-ed Eval, 3/17/14, 7 pgs.

15 Social History Update, 4/3/14, 1 page.

IMPARTIAL HEARING OFFICER

ENTERED 06/15/2015

I Notice of Appointment dtd 5/5/15, 4 pgs.