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 17, 2015

July 21, 2015

July 27, 2015

August 19, 2015

September 1, 2015

Actual Record Closed Date: November 5, 2015

Hearing Officer: Martin J. Kehoe III, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 17, 2015

Attorney for Parent — Student

Attorney for Parent — Student

Mother — Student

Father — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 21, 2015

For the Student:

NO APPEARANCES

Impartial Hearing Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 27, 2015

Parent Attorney — Student

Mother — Student

Attorney's Intern (Observing) — Student

Doctor-Expert Witness (Via Telephone) — Student

, IHRO

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 19, 2015

Attorney — Student

Principal (Via Telephone) — Student

Parents

, IHRO

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 1, 2015

Attorney — Student

Impartial Hearing Representative — DOE

Impartial Hearing Representative — DOE

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student. This is a compensatory education case.

PARENT’S POSITION

In the complaint notice dated April 14, 2015, the Parent states that the District failed to provide a free and appropriate public education (FAPE) for the Student for the 2013-2014 and 2014-2015 school years. For the 2013-2014 school year, the Parent claims the IEP was not reasonably calculated to offer educational benefit, the CSE failed to consider a continuum of placement options, and that appropriate services were not provided. For the 2014-2015 school year, the Parent claims that again the IEP was not reasonably calculated, a proper placement was not recommended, and services were not provided as mandated on the IEP, and that the District failed to of the Student.

The Parent is seeking placement of the Student at a private school for the 2015- 2016 school year; an independent evaluation of at an enhanced rate; compensatory education for any services the District failed to provide, including , , , and (all at the enhanced rate); a ; and payment of attorney’s fees and related costs and disbursements.

DISTRICT’S POSITION

It is the District’s position that the Student was provided a FAPE for the 2013- 2014 and 2014-2015 school years. They argue that the Parent, in seeking compensatory education, is seeking to advance the Student to grade level, which, they argue, is not a requirement either of a FAPE or of IDEA.

OVERVIEW

The Due Process Complaint Notice is dated April 14, 2015, and I was appointed on April 15, 2015. The parties came together to commence the hearing on June 17, 2015.

An interim order was issued on June 17, 2015 for an evaluation (Ex.

N). The hearing continued on July 21, 2015 and July 27, 2015, and an interim order was issued on July 29, 2015 to explore potential schooling placements for the Student. The hearing resumed on Aug 19, 2015 then concluded on Sept 1, 2015.

After reviewing the facts in the case, I find for the 2013-2014 school year that the District provided the Student with a FAPE. I find for the 2014-2015 school year, however, that the District, despite clearly documented observations about the Student’s particular struggles, failed to dedicate sufficient ancillary services to facilitate the Student’s academic advancement. I outline and discuss these findings herein.

STUDENT HISTORY

At the time the Complaint Notice was filed, the Student was years old and was in grade. The Student was classified with “ .” The Student is diagnosed with ( ), , , and (Ex 1, Ex 3). The Student received a full scale intelligence quotient of ( range) on the ( ). The Student . He reportedly experienced , , and . He exhibited and delays at the

.

After , the Student entered a in

November 2009. The Parent says at that time she was aware of the Student’s delays and expected that, especially with his late start on the semester, the Student might have to , but she says she thought the Student was . As was anticipated, the Student

(2010-2011), and part-way through that year, he was moved from a to a setting. This setting accompanied him through the following three years of his schooling (2011-2012, 2012-2013, 2013-2014). It is in this last year of instruction, 2013-2014, that the Student’s FAPE first comes into question.

Facing problems with the Student’s , approaching the 2014-2015 school year, the Parent moved the Student to a different school that promised compliance with the Student’s IEP. After it was discovered that there were at this school, the Student was offered a setting, but the Parent, , argued for the importance of the Student’s and asked that the Student be given additional services of as well as and services to supplement his . This school year comprises the second time period for which the Student’s FAPE is questioned.

LEGAL BACKGROUND

The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE).

20 U.S.C. § 612(a) (I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a) (1) (A). The IDEA defines a FAPE as special education and related services that:

(A) have been provided at public expense, under public supervision and direction, and without charge,

(B) meet the standards of the state educational agency,

(C) include an appropriate preschool, elementary, or secondary school education in the state involved, and

(D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).^[1]

A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP (20 U.S.C. § 614(d)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. W east, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14) In New York State, the IEP is produced by a committee on special education (CSE), whose members are appointed by the board of education or trustees of the school district. (N. Y. Educ. Law § 4402(1) (b) (1) (McKinney Supp. 2005)).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. (See generally 20 U.S.C. § 615.) These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b) (I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b) (6)). Any such complaint is resolved through an "impartial due process hearing" in which parents of disabled children have "a n opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child" (20 U.S.C. § 615(b) (6)). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. B oard of Education Newburgh, 288 F.3d 478, 482 (2nd

Cir. 2002).

In New York State, “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . .” (NY Educ. Law § 4404 (1)(c)), modifying the rule enunciated in Schaffer where “The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. (20 U.S.C.

§ 615(g)). New York has elected to employ the two-tier approach. (N.Y. Educ. Law § 4404 (McKinney Supp. 2005)); accord, Heldman v. Sobol, 962 F.2d 148, 152 (2nd Cir., 1992) Under the New York scheme a parent who wishes to challenge his or her child's IEP is entitled to a due process hearing conducted by a hearing officer appointed by the local board of education. (N.Y. Educ. Law § 4404(1) (McKinney Supp. 2005)). A party dissatisfied with the decision of the hearing officer has the right to appeal the hearing officer's decision to a State Review Officer (N.Y. Educ. Law § 4404(2) (McKinney Supp.

2005)). After these administrative remedies have been exhausted, a party may bring a proceeding pursuant to Civil Practice Law and Rules Article 4 in state court or a federal action under Section 615(i) (2) of the IDEA (20 U.S.C. § 615(i) (2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004).

SUBSTANTIVE STANDARD

The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. B oard of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); W alczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA nor Article 89 of the New York State Education Law requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services or match those services requested by a parent. A pplication of a Child With a Disability (City School District of B uffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. S traube v. Florida UFSD, 801 F.

Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F.

Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley).

This straightforward obligation of the District is underscored by the obligation to demonstrate the appropriateness of the program recommended by its CSE. (A pplication of a Child Suspected of Having a Disability , Appeal No. 93-9; A pplication of a Child with a Handicapping Condition, Appeal No. 92-7; A pplication of a H andicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR

200.6[a][1]).

PROCEDURAL STANDARD

Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F.

Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir.

1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. (See 20 U.S.C. Sec. 615(a); LIH v. New Y ork City B oard of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. B oard of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987)).

The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. (See Brandon R.R. 874 F. 2d at 1041, W alczak v. Florida

Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998)). Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The

United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id.

For this reason, the Supreme Court held in B oard of Education v. Rowley, 458 U.S. 176 (1982) that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held “…the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458

U.S. 176.

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. Jan. 9, 2007]), A pplication of a Child with a Disability , Appeal No.

07-007.

COMPENSATORY EDUCATION

Regarding the remedy of compensatory education, I find guidance in Reid v.

District of Colum bia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . . mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].

Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v.

Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir.

1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001].

Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]). Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]).

In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005]

[holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch.

Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Parents of Student W . v. Puy allup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014.

Analysis

This case was initially brought as a compensatory education case, but because the primary compensation here regards the Student’s education going forward, I find it instructive to analyze this as a 3-prong reimbursement case.

Prong I

A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (A pplication of a Child Suspected of Hav ing a Disability , Appeal No. 93-9; A pplication of a Child with a Handicapping Condition, Appeal No. 92-7; A pplication of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (B oard of Educ. v. Rowley, 458 U.S.

176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. ' 300.550[b]; 8 NYCRR 200.6[a][1]).

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 Y ork City D ep't. of Educ., 694 F.3d 167, 189-90 [2dCir. 2012]). "'[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'" (W alczak 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. M amaroneck Union

Free Sch.

2013-2014 School Year

The first IEP we have in the record is dated March 1, 2013, and even from this first relevant IEP we see the Student was . The IEP states that the Student “ ” (Ex 4, p 1) and that “ .” It then says, “However, we want

[Student] to ” (Ex 4, p 1-2). From these notes we see that has long been a matter of for the Student and that “ ” is needed to help him . Also

worth noting is the Student’s “

” (Ex 4, p 2).

We also see in this IEP evidence of the Student’s challenge in . One such note states,

“He is a boy and can become

. [Student] does get and will

. [Student] can be

. [Student] is learning to and has made ” (Ex 4, p 2)."

The relevant IEPs not only show good awareness of the Student’s needs by the CSE but also demonstrate progress being made by the Student. For example, the Student’s first IEP on the record, dated 3/1/13, notes that the Student is on a level and that he “ ” (Ex 4, p 1), while the third IEP on the record, dated 1/28/14, shows the Student reading on a level and observes that “he is

” (Ex 2, p 1).

Although there may be more to what occurred in the 2013-2014 school year, I find that the Parent focused her specific complaints on the following school year (2014-2015)

and that the record is in this year sparse for the Parent. I further find that the District, in providing relevant IEPs, met its burden of proof in showing that the Student was given an appropriate program and related services for the 2013-2014 school year.

2014 -2015 school year

Regarding the 2014-2015 school year, the Parent claims the District neglected several matters. Specifically, the Parent claims that the IEP was not reasonably calculated, a proper placement was not recommended, and services were not provided as mandated on the IEP, and that the District failed to of the Student.

The Parent argues that the IEP was not reasonably calculated and that the Student’s placement was erroneous because the Student did not demonstrate adequate progress during his grade year. I find that the identification of present levels of performance and the goals of the latest IEP are reasonably calculated to provide advancement and that the problem lies not with the IEP document but in the execution of its plans.

A CSE is charged with developing individual programs and assigning the resources necessary for students to take part in their education. These resources must be allocated according to student needs and not according to a given school’s ready resources. I find in this case that some services, though there may have been intention to deliver them, were denied the Student based on local availability. These services are part of what enable a student with special needs to learn, and their deprivation in this case caused a notable disruption of the Student’s education.

Regarding , the Parent claims that the DOE failed to intervene in a meaningful way. She testified, saying, “The administration addressed it a few times when I was very, very firm by but there were no real lasting, sustainable measures taken to ” (Tr 127-128). The Parent said she believed the school did not have staff who were appropriately trained to support the Student .

I find for the 2014-2015 school year that the Public School made assurances – informal though they may have been – to the Parent that were not met and that the deprivations to the Student and his education were substantive enough to warrant a deprivation of FAPE. Accordingly, I resolve Prong I in favor of the Parent.

PRONG II

I now consider whether the Parent met their burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” S chreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp

529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

“ . . . [P]arents 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 v. A rlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir.

2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d

Cir. 2006]

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v.

Cum berland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

The Parent bears the burden of proof with regard to the appropriateness of the educational program in which the Student was enrolled. (M.S., 231 F.3d at 104;

A pplication of a Child with a Disability , Appeal No. 02-027) In order to meet that burden, the Parent must show that the Private School offered an educational program that met the Student’s special education needs (Burlington, 471 U.S. at 370; A pplication of a Child with a Disability , Appeal No. 02-027). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining entitlement to an award of tuition reimbursement (M.S., 231 F.3d at 105; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

In this case, the Parent argues that Private School is an appropriate placement.

They point to a evaluation’s findings to support this claim. The doctor administering the evaluation to the Student, observed that the

Student “

” (Ex

E, p 11-12). The doctor went on to recommend a setting with , teachers who have experience working with children with needs similar to the Student’s, instruction, and instruction .

From its latest relevant IEP, dated 2/2/15, we see the CSE also identified that the Student would benefit from “ instruction,” “ instruction,” and “ (Ex 1, p 3)

The principal of the Private School testified about the offerings available at her school. She noted the classes there (ranging from ), the qualifications and experience of the faculty and staff (all teachers have their Master’s degrees), and their use of classrooms, all of which target of the Student as identified by professionals. She also explained that the Private School has students work in , that may have up to children (Tr

169).

As a school with , classrooms (Tr 161) and related services assigned to each classroom (Tr 163), Private School seems well poised to manage the Student’s particular and needs. Upon the evidence before me, I find that the Parent has met her burden under Prong II. Therefore I resolve this prong in favor of the Parent.

PRONG III

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; .G. v. New Y ork City D ep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

Tuition 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 child 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. § 612[a][10][C][iii][I] ; see 34 C.F.R. §

300.148[d]). 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 in the public schools." (Greenland Sch. Dist. v. A m y N ., 358 F.3d 150, 160 [1st Cir. 2004]).

In this case, the Parent did place the Student unilaterally. The record does, however, support the Parent’s consistent, ardent efforts to obtain a suitable placement and appropriate related services (see above). I find that equitable considerations here do not preclude an award of tuition reimbursement. The District did not offer testimony to refute this fact. I find that equity weighs in favor of the Parent.

I turn now to the instant case and issue the following order:

That the DOE reimburse the Parent for monies expended toward tuition to the Private School upon the presentation of properly receipted invoices for same, and

That the DOE make direct payment to Private School for unpaid tuition prospectively for the 2015-2016 school year at the Private School.

So Ordered,

Dated: November 5, 2015

MARTIN J. KEHOE III, 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.

Exhibit Summary

District Exhibits

EX1. IEP, dated February 2, 2015. The Student’s overall is equivalent to grade student. The Teacher has reported that he is . The Student was given services in ( ) in times per week and in times per week, services a week for minutes, twice a week for minutes, , and and . The IEP removed the recommendation for that was on the previous IEPs. The placement recommendation is for a DOE community school.

EX 2. IEP, dated January 28, 2014. The Student was performing level in . He was classified with a . He was provided with a class in times per week, a in times per week, a times per week, a times per week, a week for minutes, and and .

EX 3. IEP, dated December 1, 2014. Although the IEP states under that reports indicate “[the Student] may require services to address delays,” was not provided as a related service. The Student’s program was for times per week and , services times per week in , a week, and . EX 4. IEP, dated March 1, 2013. The Student was reported as performing grade level in . He was given a program of times per week, and in , and times per week, , and . On this IEP only, the Student was listed as having a .

EX 5. Prior Written Notice, dated February 2, 2015. The District informed the Parent of the identification and recommended program, placement, and related services.

EX 6. Prior Written Notice, dated December 2, 2014. The District informed the Parent of the identification and recommended program, placement, and related services.

EX 7. Evaluation, dated December 16, 2014. The Student’s evaluation was based on classroom observation, clinical observation, Parent report

Teacher report, file/chart review, , , and .

The Student scored on the test, in the range on the . The Parent reported a definite difference in , and . The Evaluator did not recommend because the Student’s “needs can be met by the primary education program and the Student’s current given the nature of his disability”.

EX 8 Evaluation, dated December 16, 2014. The results of the ( ) revealed the Student has delays in his , , , and . The evaluator observed a delay in the Student’s skills. She recommended .

EX 9. Evaluation, dated August 27, 2014, September 15, 2014 and September 24, 2014. The Evaluator wrote that the Student “exhibits

.” He also

confirmed the prior diagnosis of ,

. He wrote the student exhibited

. The Student’s grade level.

Parent’s Exhibits

EX A. Complaint Notice, dated April 14, 2015.

EX B. Same as EX 1.

EX C. Same as EX 2.

EX D. District report card, dated March 16, 2015. The Student’s grades are

.

EX E. Same as EX 9.

EX F. DOE Psycho educational Evaluation, dated August 2014, September 2014. The

Student’s as estimated by the is in the range; his were in the range, and his were in the range. The Student’s score on the ( ) were in , . The evaluator recommended placement in a classroom in a school setting for a program.

EX G. Parent’s email to School Principal, dated December 16, 2014. She informed the principal of her concern about the student school.

EX H. Letters to the Parent from the Principal and Assistant principal about , dated December 19, 2014 and March 27, 2015. In the first letter, the Principal wrote that . In the second letter, the Assistant Principal wrote that it was found that

.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Demand for Due Process, 4/14/15, 8 pages

B NYC DOE IEP, 2/22/15, 17 pages

C NYC DOE IEP, 1/28/14, 13 pages

D NYC DOE Report Card 2, 2014015, Term 1, 3/16/15

E Evaluation, 8/2014, 9/2014, 18 pages

F NYC DOE Psychoeducational Evaluation, 1/14/14, 9 pages

G Parent Email to School Principal, 12/16/14, 1 page

H Principal Letters to Parent re: , 12/19/14, 3/27/15, 2 pages

I Parent Email to School Principal, 5/5/15, 1 page

J Emails re DOE Placement, 8/11/15, 8/12/15, 1 page

K Enrollment Contract 9/15 – 6/16, 4 pages

L Correspondence with Schools and Notice of Details, 7/15 – 8/15, 10 pages

M Signed Enrollment Contract, 8/15/15, 4 pages

N Evaluation Report, 7/29/15, 5 pages

O Updated Signed Enrollment Contract, undated, 6 pages

DEPARTMENT OF EDUCATION

1 Individualized Education Plan (IEP), 2/2/15, 22 pages

2 Individualized Education Plan (IEP), 1/28/14, 15 pages

3 Individualized Education Plan (IEP), 12/1/14, 14 pages

4 Individualized Education Plan (IEP), 3/1/13, 17 pages

5 Prior Written Notice, 2/2/15, 4 pages

6 Prior Written Notice, 12/2/14, 4 pages

7 Evaluation, 12/14, 9 pages

8 Evaluation, 12/16/14, 4 pages

9 , 8/27/14, 9/5/14, 9/24/14, 18 pages

Footnotes

[1] "Special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term "related services" is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).