Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 11, 2015

August 25, 2015

Actual Record Closed Date: September 4, 2015

Hearing Officer: Daniel Ajello, Esq.

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

Parent Advocate — Student

For the Department of: — Student

District Representative — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 25, 2015

Educational Advocacy Services — Student

Parent/Mother — Student

Parent/Father — Student

For the Department of: — Student

Impartial Hearing Representative — Student

Impartial Hearing Representative — Student

INTRODUCTION

On 07/20/2015, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of ’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities 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 07/17/2015 alleging that the Department of (DOE) failed to provide a procedurally valid and substantively appropriate Program (IEP) and placement for the student, for the 2015-2016 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public (FAPE) for the student for the 2015-2016 school year. (Ex 1-2 & 1-3)

Relief sought includes funding for parental placement at ( ) and to and from . (Ex 1-3)

DOE concedes it has not offered the student a FAPE for the 2015-2016 school year and seeks an Order directing the Committee on (CSE) to reconvene. (T 12) IHO advised the parties neither requires an Order to request an IEP meeting of the other party and may do so at any time. (T 13-15)

BACKGROUND

The student’s most recent IEP, of 06/18/2015, includes the following information: Student is , with a classification of ,

, and (Ex 3-1); exhibits behavior

associated with , ,

, ,

, , (Ex 3-2); ,

, (Ex 3-4 & 3-5); recommendation of (Ex 3-5); , in a , (Ex 3-6); of (Ex 3-9); and no listed (Ex 3-

10).

Social History Update of 06/03/2015 includes the student has been diagnosed with and parent concerns with finding her child an appropriate placement.

(Ex 5-1)

Parent requested a referral to the Central Based Support Team (CBST) for private school placement, via letter of 04/21/2015. (Ex 10-1)

of January 2015 made a variety of recommendations for the student, several of which were included in the IEP of

06/18/2015. Specific recommendations regarding areas such as reading were not included in the IEP. Recommendations included consideration of , such as , . (Ex 17-6 & 17-7)

Document reflects the student was recommended to be declassified in 2013.

(Ex 32)

THE PARENT’S POSITION

, Parent Advocate, represented the parent and student at hearing of 08/11/2015

( ), Parent Advocate, represented the parent and student at hearing of 08/25/2015.

outlined the parent’s position in an opening statement.

“The case is for the '15-16 school year. (Student)has been enrolled in a public school program and…has experienced little academic success. During the '14-15 school year, Ms. was involved with …needs and the fact that she felt he was not making progress. More than one staff member expressed to her their feeling that he required a New York State-approved private school because he needed a highly specialized program because of his disabilities. That is supported by Parent's Exhibit E which is the 6/9/15 update, which also gives the opinion that he will require a highly specialized educational environment.

The parent located . observed and interviewed the child and determined that they could offer him an appropriate placement and provided the parent with an acceptance letter on March 24th,

2015. The (T 26) is , so Parent's Exhibit H is a description of the program that they would offer him in a class of and the teacher is licensed and certified, and is an approved school from New York State that can accept direct funding from the Department of . The parent believes that (Student) must be placed in this placement, that it is necessary for him to have this in order to receive an appropriate and move forward. And the parent will ask at the conclusion of these proceedings for you to please consider her position and order that the Department of place the name of the New York State-approved on the student's IEP and allow him to attend the program.” (T 27)

PARENT WITNESS

( ), the student’s mother, testified.

Student first attended school in a at . Student is set to attend for the 2015-2106 school year. (T 29)

In : “…

” (T 30)

had her child evaluated and he was diagnosed with . (T 31)

In June 2015 felt her child was

” (T 31)

In June 2015 a Update was obtained and it was suggested her child attend another school and obtain services such as . (T 32, Ex E)

learned of and took her child to and they explained the program.

(T 32)

believes can help her child. (T 32)

“It's a smaller environment. All the kids are on the same level. He has no competition that you could read better than me, you know the letters better than me, this kid could do this, I can't do it, I don’t want to go to school. He never wants to go to school.” (T 33)

Student was accepted at and accepted placement. (T 33)

Student’s current teacher told her that her child would not make it in his current placement. (T 33-34)

asked for placement at at the last IEP meeting and was denied. (T 34)

does not agree with the DOE IEP recommended program for her child. (T 34)

believes will give her child what he needs, including

. (T 34)

Parent seeks the student placement at and then will consider any possible need for and . (T 36)

DEPARTMENT OF POSITION

( ) District Representative, presented the DOE position.

At hearing of 08/11/2015 sought an adjournment of the matter due to settlement negotiations. (T 5)

was unable to provide any specifics regarding the likelihood of successful settlement negotiations. The only information that could be provided was that the matter was referred for settlement and assigned “yesterday”. (T 6)

was ale to provide that: “From my understanding, it has a likelihood of being settled, which is why I referred it to settlement. I have, from three different staff members at the school, their information that they believe that this student does require nonpublic school.” (T 6)

The parent’s advocate could not verify they had been contacted by the DOE regarding settlement. (T 7)

The DOE did not avail itself of the opportunity to present a case at hearing.

(T 8)

The DOE did submit an evidence packet. (T 9)

Ultimately the DOE conceded it had not offered the student a FAPE for the

2015-2106 school year and sought the IHO to order a CSE reconvene to address the student’s .

Student “is a boy who has just completed at

...currently receives services as a student with a …

current program recommendation is , or

, for ; for

; for ; and

, for …The DOE concedes that they did not offer a FAPE for the 2015-2016 school year. As relief, the Parent is requesting…IEP recommend a nonpublic school, specifically , and transportation to and from . The Department of Ed (T 12)

respectfully requests that the IHO order an IEP reconvene to allow the Committee on to consider the Parent's request, as well as provide the team an opportunity to develop an educational program from which (student) will receive benefit.

Thank you.” (T 13)

FINDING OF FACTS AND DECISION

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

, "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 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 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 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 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 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 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 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 under the IDEA"]). A private placement is only appropriate if it provides 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 , the evidence did not show that it provided 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 needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every 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 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 2015-21016 SCHOOL YEAR

DOE concedes it has not offered the student a FAPE for the 2015-2016 school year. (T 12)

When a district concedes that it failed to offer the student a FAPE for the school year in question and elected to not submit any evaluative information or assessments of the student as evidence of the district's view of the student's needs into the hearing record, then the district has effectively abandoned any opportunity to assert at either the impartial hearing or on appeal its position regarding the student's needs and the extent to which the parent's unilateral placement either addressed or failed to address those needs. In this case the District has submitted evidence, but has in no way disputed the parent’s claim that it has found an appropriate placement at for the student. DOE evidence has been reviewed to see if it can be viewed in any way to counter the parent’s contention that is an appropriate placement.

I note the DOE’s Due Process Response (Ex 2) is entirely bank, except in its reference to a Prior Written Notice, dated 03/31/2015 (Ex 11), prior to the date of the IEP in question, 06/18/2015 (Ex 3).

A review of the DOE’s remaining documents do not reflect any evidence that the recommendation included in the IEP is appropriate. Additionally, the documents do not weigh against the parent’s placement of .

I find that the DOE failed to offer the student a FAPE for the 2015-2016 school year.

PLACEMENT ( )

The question of whether constitutes 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). The evidence in the hearing record submitted by the parent in this case are sufficient to identify the student's unique needs and to satisfy the parent's burden to establish the appropriateness of the student's unilateral placement at for the 2015-2016 school year.

Parent testimony exhibited an understanding of her child’s needs and the program provided by as able to meet those needs.

DOE presented no evidence to contest any information presented in the parent testimony, nor did the DOE contest any evidence submitted by the parent.

Parent submitted documentary evidence which supports student placement at

.

Program Description includes student grouping by instructional level,

( ) taught by certified instructors in or

, as well as according to

, , , , and

, and as mandated on the IEP

(Ex A)

letter indicates the student was met, screened, and a suitable program can be provided. (Ex B)

letter also reflects that the school I permitted to accept children with a classification of and that class staffing ratio is . Additionally, the student is accepted into a class of similar to him socially and academically, within a , and his teacher shall be a licensed and certified a teacher. (Ex H)

Update of 6/9/2015, includes a continued impairment of the student in his ability to deconstruct words, a need for to become a , recommendation of a school for children of 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 2015-2016 school year I find offers an educational program which meets the student's 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 , 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 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 to and from . (Ex 1-3)

DOE does not contest this parent relief and reflects student need for transportation in most recent IEP. (Ex 3-9)

I find the student is entitled to transportation services to and from .

EQUITABLE CONSIDERATIONS

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

Parent seeks direct funding of tuition for the DOE. Normally, 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 a recent tax return. (Ex G)

Parent financial information is not necessary since the sought after funding is for a New York State Approved Private School, as defined in the New York State Regulations of the Commissioner of , Pursuant to Sections 207, 3214, 4403, 4404 and 4410 of the Law 200.1 (d).

Approved Private School defined as a “private school which conforms with the requirements of Federal and State laws and regulations governing the of students with disabilities, and which has been approved by the commissioner for the purpose of contracting with public schools for the instruction of students with disabilities.

“ (NYCCR 200.1)

ORDER

1. The Department of (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 2015-2016 school year.

2. DOE shall directly fund student program at for the 2015-2016 school year.

3. DOE shall provide transportation of the student to and from for the 2015-2016 school year.

4. DOE shall provide parent and with any and all required documentation and forms necessary to facilitate funding of program for within ten days of the date of this order.

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

Dated: September 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 08/25/2015

A Program Description, 1 page

B Acceptance Letter dated 3/24/2015, 1 page

C Omitted Duplicate

D NYC DOE Report Card 2013-2014, 2 pages

E Update dated 6/9/2015, 2 pages

F Sample of student's work dates from 2012 to 2015 7 pages

G 2014 Tax Return 2 pages

H Letter from dated 8/12/2015 1 page

DEPARTMENT OF

ENTERED 08/11/2015

1 Due Process Complaint dated 7/17/15, 5 pages

2 Due Process Response dated 7/21/15, 3 pages

3 IEP dated 6/18/15, 12 pages

4 Meeting Notice dated 6/3/15, 3 pages

5 Social History Update dated 6/3/15, 1 page

6 Consent for Evaluation dated 6/3/15 1 page

7 Notice of Social History dated 5/22/15, 1 page

8 Assessment Planning dated 4/23/15, 1 page

9 Request for Reevaluation dated 4/23/15, 1 page

10 Parent Letter CBST Request dated 4/21/15, 1 page

11 Prior Written Notice dated 3/31/15, 4 pages

12 Prior Written Notice of Recommendation dated 3/16/15, 1 page

13 Individualized Plan dated 3/16/15, 13 pages

14 Meeting Notice dated 3/9/15, 3 pages

15 Language Evaluation dated 2/10/15, 12 page

16 Parent Letter Evaluation dated 2/1/15, 1 page

17 dated January 2015, 7 pages

18 Evaluation dated 1/14/15 19 Assessment and Planning dated 1/8/15, 3 pages

20 Consent for Evaluation dated 1/8/15, 1 page

21 Request for Reevaluation dated 1/8/15, 1 page

22 Authorization to Attend dated 12/22/14, 3 pages

23 Prior Written Notice of Recommendation dated 12/19/14, 3 pages

24 Prior Written Notice Initial dated 12/11/14, 1 page

25 IEP dated 12/11/14, 12 pages

26 Meeting Notice dated 12/4/14, 3 pages

27 Evaluation dated October 2014, 7 pages

28 Assessment Planning dated 12/4/14, 1 page

29 Consent for Evaluations dated 12/4/14, 1 page

30 Request for Reevaluation dated 11/5/14, 1 page

31 Parent Letter Initial Referral dated 10/31/14, 1 page

32 Services dated 8/31/13, 3 pages

33 Preschool IEP dated 8/2/12, 12 pages

IMPARTIAL HEARING OFFICER

ENTERED 08/11/2015

I Notice of Appointment, 07/20/2015, 4 pages