NY IHO #2015-ih-726: Impartial... | Special Education Law

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FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 14, 2015

September 10, 2015

October 9, 2015

Actual Record Closed Date: October 30, 2015

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 14, 2015

For the Student:

Parent Advocate

parent

For the Department of Education:

CSE _ District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 10, 2015

For the Student:

Parent Advocate

parent

For the Department of Education:

CSE Chairperson Designee

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 9, 2015

Parent Advocate

parent

For the Department of Education:

CSE Representative

INTRODUCTION

On 07/07/2015 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.

On 09/10/2015 parent advocate made a motion to extend the compliance date by 30 days to allow for availability of witnesses. Motion was granted and compliance date was extended to 10/10/2015. (T 90)

On 10/09/2015 parent advocate made a motion to extend the compliance date by 30 days to allow receipt and review of the transcript. Motion was granted and compliance date was extended to 11/09/2015. (T 130)

This matter was instituted by the impartial hearing request dated 07/11/2015 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 ( ), payment of any related services and transportation related to placement. (Ex A 3)

Since the school year has passed it is not necessary to address any transportation claim.

I note that the transcript of 08/14/2015 incorrectly identifies the speaker as the IHO. Speaker is . (T 12, linel16)

I note that transcript of 09/10/2015 at page 40 line 17 identifies an Exhibit as B. It is actually Exhibit D.

BACKGROUND

IEP for the 2014-2015 school year is dated 01/28/2014, was intended for student’s year, and includes: classification of , currently an student at on an approximate level, needs a in , working on an , suffers from for and for , parent concerns about , (Ex 1-1), needs include when feasible, , being level (Ex 1-2), recommended services of a times a day, ( ) services individually for minute sessions weekly, weekly for a minute session, ( ) minute sessions weekly and , time weekly for a minute session. (Ex 1-6), (Ex 1-7), for and for (Ex 1-9), and (Ex I-10).

Parties do not have a disagreement regarding the IEP recommendation of related services which include , and . Disagreement primarily relates to the program recommendation itself. (T 20-21)

Parties agreed as to what portions of the student schedule were in nature. This included , , and . (T 114-115)

DOE IEP Minutes include that parent was willing to look at public school placements. (Ex 4-1)

Psycho-Educational Update of 03/25/2011 includes that the student was on a level and a level. (Ex 8-3)

THE PARENT’S POSITION

( _) presented the parent’s position.

DOE failed to offer the student a FAPE, in part due the IEP being able to provide the appropriate services required for the student. (T 13-14)

Parent believes to be a proper placement, equities favor the parent, and tuition reimbursement relative to is an appropriate remedy. (T 14-15)

PARENT WITNESS

( ), the student’s father, testified. (T 35) states that his child “ “ (T 36)

He sent the student to : “Because we want our child to have a special education, and it happens to be a fantastic school.” (T 36)

“It's a fantastic program. The kids come out with confidence. The kids come out with self-esteem. With that, you can do anything.” (T 56) has educated the student for the last four years and the student has made progress last year. (T 37)

Student work in (T 37) identified his tax return for the 2013 year. (T 38) agreed to pay the tuition (T 38) and he has paid $ thus far. (T 39, Ex J) is awaiting payment, which is unable to pay. (T 39) isa and has children. (T 40) received a School Location Letter and attempts were made to visit the identified school. (T 40, Ex D) “I do remember my wife telling me that she made several attempts, and they were not able to let her in, or give her the attention, or show her exactly what we were told to do.” (T 41)

Student attended the and for the last several years. program is in a different building. (T 47) believes related services are appropriate for the student. (T 79, Ex H) has not had conversations with about tuition payment. (T 79) does send bills. (T 80)

believes a class of 1S for his son. (T 85)

PARENT WITNESS

( ) reviewed her educational and professional background and testified as a certified general and special education teacher, employed at . (T 97-99 & 105) was the student’s teacher for the 2014-2015 school year. “It included including and ° (T 100-101)

Class had a total of students (T 100) with ages of years (T 101).

At the beginning of the school year: “His challenge was . Difficulties including, this would be , and in terms of he was and . He has difficulty with . Instead of , he (T 101)

Student issues were dealt with through a “ °’ in which . (T 101-102)

Educational materials for the student included , and progress was measured by (T 102) and (T 107).

Student progress was noted as: “He . He was -- and this was seen on his ” (T 102)

Progress in the is noted in that: “He started to and we were able to see this ” (T 104)

At the beginning of the student was at a level (T 106) and level (T 108). Student was instructed in ata level. (T 118)

By the end of the year student was at a level. (T 111 & 121) skills are described as: “ ” (T 108) skills are described as and

. (T 109)

Curriculum 1s . School uses . (T 112)

For the year student had: “

° (T 110)

IEP related services are delivered at the school. (T 116)

DEPARTMENT OF EDUCATION POSITION

( ) District Representative, presented the DOE position at hearing of 08/14/2015.

On the first day of hearing asked the hearing only include opening statements and evidence and advised that he was indeed the DOE witness regarding the case at hand. (T 7) wanted to have a litigator appear to question him so he could provided estimony. (T 7)

The IHO advised he could provide testimony and the parent advocate could question him directly. (T 8-10)

DOE position is that an appropriate IEP was drafted, a FAPE offered the student for the 2014-2015 school year, and that equities favor the DOE. (T 11-12) ( ), District Representative, appeared for the DOE on 09/10/2015. ,CSE_ Representative, appeared for the DOE on 10/09/2015.

DOE WITNESS

( )) reviewed his educational and professional background and testified as the District Representative and Teacher of the 01/28/2014 IEP meeting. (T 16-17, Ex 1)

IEP team was duly constituted with proper members allowed to participate. (T 17)

Recommendation was made of a ; “with services of times 30, ; times 30, : and times 30, service; and times . We also recommended (T 17) and ...at of the IEP, ; 4 , with the ; and > (T 18)

Student was moving from to and needs were included in the IEP. (T 18, Ex 1-2)

Placements other than a would have been too restrictive for the student. (T 18) states that: “We felt that ...and would not have benefited him ” (T 18-19)

Student was on a and level. “We felt a class was appropriate for him.” (T 19)

Student’s teacher reported progress. (T 19, Ex 5)

Parent participated in the IEP meeting and concerns of the parent are noted in the IEP. (T 20)

Goals were discussed and included in the IEP. (T 20)

“To my knowledge, there was no objection to the IEP, but I think the Parent did reserve the right to--she wanted to look at the placement school before she made any decision. And that's my testimony.” (T 20)

On the day of the meeting the IEP team had documents which included “the School Progress Report, the Report, the Report, and we had the PsychoEducational.” (T 21)

On the day of the IEP meeting the student was in . Student levels for and were obtained from the student’s teacher. (T 21-22)

Student teacher advised the team that student’s are for and instruction. believes there are about students in the class, a teacher and assistants. (T 23) Class size could goupto . (T 25)

Student required to . (T 23-24)

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 nghts 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 JEP" (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 "[mlultiple 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 JEP 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, 1f 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] [11]; 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; Walezak, 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 US.C. § 1412[a][S5][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 JEP 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][1]; 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 me 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][1], [2][J[A]; 8 NYCRR 200.4[d][2][i]), 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 retmburse 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), 1.¢e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walezak, 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 JEP 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..." (Gaglhiardo, 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, "[ulltimately, 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 1t 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. (Gaghardo, 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][i1]; 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], affid, 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).

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][1]; 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 [Sth Cir. 2009]).

DOE IEP and PROPOSED PLACEMENT

DOE witness testified as to the IEP meeting and JEP created as a result of the meeting. (Ex 1)

DOE did evidence that the parent, participated in the IEP meeting. IEP minutes and IEP include information and concerns of the parent. (T 20 & Ex 1 & 4)

Testimony also included parent was allowed to participate. (T 17)

Parent does allege that the parent was not allowed meaningful participation in the IEP (Ex A 2). However, no evidence was presented to support this position.

DOE witness reviewed the recommendation made at the meeting. While parties agree as to the recommended services, the dispute centers on _ the recommendation of a . (T 18)

IEP details various needs of the student (Ex 1-2) and testing accommodations (Ex 1-7).

DOE witness testifies that placements other than a would have been too restrictive for the student (T 18) and that “We felt that ...and would not have benefited him ” (T 18-19)

DOE witness testified generally regarding the included IEP goals. “...we believe that they were appropriate...(Student)...was working on a level in and . We were able to put goals in the IEP. We put goals in the IEP, goals, and goals in the IEP. The goals were discussed at the IEP meeting, and they were transcribed into the IEP after the IEP meeting was developed. To my knowledge, there was no objection to the IEP...” (T 20) No evidence was presented contesting the IEP goals.

Psycho-Educational Update of 03/25/2011 includes that the student was on a level and a level. (Ex 8-3)

In almost three years since the Psycho-Educational the student as measured by grade level. (Ex 8-3 & 1-1) This accounts to about a|_ grade level of progress each year.

For the 2014-2015 school year the student was at a level (T 106) and level (T 108). Student was instructed in ata level (T 118) and by the end of the year student was at a level. (T1111 & 121)

Parent alleges the goals are insufficient. Goals do cover areas of weakness of the student, which include and . (Ex 1)

Parent witness confirmed some areas of weakness in the area of . “His challenge was , Difficulties including, this would be ” (T 101)

Student progress report includes areas of difficulty including . (Ex F 1)

In student progress report includes student weakness and (Ex F 1) and difficulty with (Ex 1-1).

In student progress indicates area of weakness in that student . (Ex F 1)

IEP includes goals (Ex 1-3), goals to address (Ex 1-4), goals (Ex 1-3), and needs to address (Ex 1-2). needs include and . (Ex 1-2) goals generally call for student progress in each area. (Ex 1-3 & 1-4)

This goal is reasonable considering the student’s past progress. Additionally, the student appears to have made progress of about for the year in , as indicated by the student’s 2014-2015 teacher. At the beginning of the student was at a level (T 106) and level (T 108). Student was instructed in ata level. (T 118) By the end of the year student was at a level. (T 111 & 121)

DOE witness testified to the appropriateness of the recommended placement. “We felt a class was appropriate for him.” (T 19)

Student’s teacher reported progress. (T 19, Ex 5) This is borne out in progress indicated from the time of the student’s 2011 Psycho-Educational. (Ex 8)

Parent participated in the IEP meeting and concerns of the parent are noted in the IEP. (T 20)

Parent alleges the IEP does not contain a statement of student’s present level of performance. IEP does contain information regarding student’s characteristics. (Ex 1-2 through 1-3).

Parent raises concerns that the DOE did not properly evaluate the student. However, no evidence is presented to establish the parent requested any evaluation. No evidence was presented indicating the IEP was incorrect in its presentation of the student characteristics.

I do not find any evidence that the IEP meeting was conducted improperly nor that any party was denied participation.

I find that the IEP does provide for personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction and the IEP is reasonably calculated to provide some meaningful benefit to the student.

I also find the parent was afforded the opportunity to appropriately take part in the IEP meeting.

The IEP does accurately reflect the results of evaluations to identify the student's needs and does establish annual goals related to those needs.

PLACEMENT

It is not necessary to examine the placement as the DOE IEP and placement recommendation are found to be appropriate.

I do note that even if the DOE IEP and placement were found to be inappropriate the parent failed to notify the DOE of any objection to the IEP until November of 2014. (Ex D) Parent also failed to notify of their intent to place the student unilaterally at 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][i11])

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][T]; 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 in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement 1n cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1* Cir. 2002])

In this matter the parent did not provide timely notice to the district at the most recent IEP meeting nor in writing at least 10 business days before the parent’s “removal” of the child, with a rejection of the proposed placement, “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)aii)(D; 34 C.F.R. § 300.148(d)(1).

In this matter the student’s IEP meeting was conducted on 01/28/2014 (Ex 1) and a Prior Written Notice (Ex 2) as well as School Location Letter (Ex 3 & D) were issued on 07/24/2015. Parent did not advise the DOE of anything until 11/02/2014, well into the school year, that student would not be attending the DOE recommended placement. (Ex D 1) The only concern raised in the parental note of 11/02/2014 includes that the parent “4 ” (Ex D 1)

No concern was raised regarding the IEP, and recommendations included therein, until the hearing request of 07/01/2015, after the 2014-2015 school year had concluded.

No opportunity was given to the DOE to address parent concerns. Parent concerns, at least until 07/01/2015 only related to , and not the IEP of 01/28/2014. (Ex D & Ex 1)

ORDER

1. The parent’s Due Process Complaint is dismissed.

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

Dated: November 5, 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.” (SNYCRR279.2[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 08/14/2015

A Hearing Request and Fax Confirmation dated 7/21/15, 4 pages

ENTERED 09/10/2015

14-15 Program Description, 2 pages cTDmroa

7/24/14 School Location Letter, 2 pages

14-15 Class Schedule, 1 page

1/16/15 Progress Report, 2 pages

14-15 Student Report Card, 2 pages

14-15 Related Services, 1 page

— 9/3/14 Tuition Contract, 4 pages

8/11/15 Affidavit of Payment, 1 page

<*Anr

14-15 Attendance Record, 1 page

2013 1040 Tax Return, Parent, 2 pages

2014 Application for Automatic Extension to File, 1 page

DEPARTMENT OF EDUCATION

ENTERED 08/14/2015

l IEP dated 1/28/14, 11 pages

Prior Written Notice dated 7/24/14, 4 pages oAFNWO&nHoDF

School Location Letter dated 7/24/14, 1 page

Minutes of Meeting dated 1/28/14, 1 page

Progress Report, January 2014, 1 page

Report of January 2014, 1 page

Report dated 1/27/14, 2 pages

Psycho-Educational dated 3/25/11, 6 pages

IMPARTIAL HEARING OFFICER

ENTERED 10/09/2015

I Extension of Timeline, dated 9/10/15, 3 pages

II Extension of Timeline, dated 10/09/15, 3 pages

Impartial Hearing Decision