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: October 13, 2015

October 27, 2015

October 30, 2015

Actual Record Closed Date: November 6, 2015

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 13, 2015

Attorney — Student

Mother — Student

Chairperson's Designee — DOE

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

Attorney — Student

Mother — Student

Father — Student

Director of — Student

CSE Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 30, 2015

Parents

Attorney — Student

Teacher (Via Telephone) — Student

Teacher (Via Telephone) — Student

CSE Chairperson's Designee — DOE

INTRODUCTION

On August 31, 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.

Student pendency was addressed on the first day of hearing, October 13, 2015.

Pendency Order issued October 26, 2015. (IHO Ex III)

This matter was instituted by the impartial hearing request dated August 31, 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 2015-2016 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2015-2016 school year. (Ex A 1)

Relief sought includes funding for unilateral placement at

( ). (Ex A 7)

BACKGROUND

Most recent student Individualized Education Plan (IEP) includes: student age of , classification of , evaluation data of 04/08/2013 reflecting areas of , testing data of March 17, 2015 reflecting full scale IQ score and , no services were provided for the 2014-2015 school year, goals were “forwarded” into the current IEP (T C 1); , ,

,

, parent seeks a (Ex C 2);

, as needed, , ,

, . Use of , ,

, , ,

, , (Ex C 3); recommended services

include Services for , , and ,

( ) times weekly,

( ) for minute sessions weekly (Ex C 15);

, and (Ex C 16-

17); levels of for and for (Ex

C 19); and (Ex C 20).

THE PARENT’S POSITION

( ) presented the parent’s position.

“Parents are seeking tuition and at They are also seeking reimbursement for an evaluation. The, the evaluation is in evidence as Exhibit D. The letter submitting the evaluation is in evidence as Exhibit E. And the proofs of payment for the evaluation are Exhibit H. And parents are seeking the full costs of the child's attendance at And the parent will testify as to the theory behind reimbursement for evaluation. And then we will have witnesses to testify as to the appropriateness of ” (T 18)

Parent seeks relief that includes: tuition for the student includes

$ , the Program $ , a fee of $ and a fee of $ . The total is $ and $ cost of evaluation. (T 78 & 104-105, Ex I)

PARENT WITNESS

( ), the student’s mother, first noticed her child had difficulties at the age of . (T 19)

Student attended public school from through , and then attended . Presently the student is in the . (T 19)

attended the 07/16/2015 IEP conference via telephone and her husband was there in person. Class size was discussed and the parent advised the team that the student needed to be in a class. did not participate because the meeting was held during the summer. (T 20)

A placement letter was received and calls were made but never returned until after school started. (T 20-21) Placement letter was received in August. (T 34)

did visit the recommended placement and was told: “That they did not have , that they couldn't really accommodate (the student) there, and also that it was a school.

” (T 21)

would send the student to a public school if the placement was appropriate. (T 23)

has . (T 29)

Decision to remain at was made after the visit to the recommended placement at the end of September, at which time the student was already attending

. (T 29-30)

had a new evaluation of her child done: “Because we wanted to see where he stood, because there wasn't--one needed to be done. We wanted to see - - evaluation.”

(T 23)

Invoice for evaluation in the amount of $ was paid. (T 24, Ex H)

No one from the DOE asked the parent to have an evaluation of the student.

(T 25)

Parent signed the Contract on 03/11/2015. (T 26 & 36, Ex I-4)

A non refundable deposit of $ was paid . (T 26, Ex J)

By the time of the IEP meeting the parent had paid about $ to to secure a placement for her child. (T 28)

Parent wrote a letter to the DOE after her visit to the recommended placement.

(T 32, Ex G 8)

PARENT WITNESS

( ) reviewed his educational and professional background and testified as the Director of the and the student‘s teacher. (T 48-49)

has students (T 48), grades , student class sizes of students, students are grouped into tracks mostly by or , there are students in the (T 49), somewhere between and students have , teachers need to be certified as a New York Special Education Teacher, and is used which is an

( 50).

assists student with disabilities: “

” (T 51)

was the student’s teacher last year and the current teacher.

(T 52)

Student due to progress that was quickly

noted. (T 52)

Current track is appropriate as it is level and is a relative strength for the student. (T 52-53)

There are students in the student’s class. (T 53)

Student is and an . (T 54)

sees the student (T54) to provide

times this year. (T 60)

Special education techniques used with the student include

, ,

, and . (T 54)

“…I have tons of . I have different

that we do and I have some knowledge and experience in issues. So, the …which is often , is very heavily mitigated; students need to , , , , . There's and and .” (T 54-55)

Student has from the activities. (T 56)

Student’s issues are addressed by and , and

. (T 56-67)

Student is and . (T 58)

Student . “

” (T 58)

Student is allowed to , and .

(T 58-59)

Student is . Student

. (T 59-60)

has referred to student document documentation including student IEP and evaluations. (T 64)

PARENT WITNESS

( ), provided his educational and professional background and testified as a Teacher. provided testimony by affidavit and the DOE requested to cross examine the witness. (T 84-86, Ex M)

Student is assessed informally and formally. Student case is more . “So I try to ” (T 86)

To

. , and

. (T 86-87 & 89)

Student has problems with and .

“So I'm trying to express to (the student) that he needs to a little bit more because . His hardest difficulty is to he's having. So it's more like and then and to , and that's where I'm working on right now, really focusing on his and just trying to . For a while (student)

wasn't necessarily so I worked with , his teacher, and we spoke about that we can use to and . I know that he'd and and then and , which I think is wonderful in the , but I don't think it's

. I'm looking for and to and

.” (T 87-88)

Student progress is assessed with , ,

, , and . (T 93-94)

PARENT WITNESS

( ), provided her educational and professional background and testified as a Teacher. provided testimony by affidavit and the DOE requested to cross examine the witness. (T 95, Ex L)

does not perform any formal assessments. works on .

(T 96)

has seen progress in her sessions with the student over the years. (T 96)

Student has difficulties with .

Work with the student involves , like . (T 97-98)

difficulties were identified through an evaluations. (T 98)

“…in our sessions we focus a lot with with specifically the and the and being able to and We've also worked on and those are the main things we've focused on so far this year.” (T 98)

has continuous contact with school staff through . (T 99)

Student does not currently have . Student has been successful at . (T 100)

To address student difficulties helps with: “…with and and .” (T 101)

“I feel comfortable addressing his needs focusing on helping him with that. I feel comfortable enough dealing with those needs.” (T 102)

services provided to the student address student difficulty. “…we work on and , . With we'll work on and working on and . Then with his whenever he sessions.” (T 102-103)

DEPARTMENT OF EDUCATION POSITION

( ) Chairperson ‘s Designee represented the DOE

position.

contended that the matter should be adjourned to allow for possible settlement of the matter. As not specifics beyond stating that a ten day notice was submitted, the adjournment was not granted. No document was provided to clarify the contents of said “ten day notice“. (T 5 & 37)

contended that the DOE will shortly determine if the matter should be settled or if the DOE would present a “Prong I case.” (T 10-14)

Neither party could provide any information establishing that there was a likelihood that the matter would indeed be settled. The was allowed an opportunity to present a case and did not avail itself of said opportunity. (T 13-17)

FINDING OF FACTS AND DECISION

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

(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct.

2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (CSE) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-

07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June

24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir.

1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir.

2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9,

2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a)

impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379).

Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130]

[citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE)

(20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent.

Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo

Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428

[W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No.07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington

v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).

"Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR

300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

The parent bears the burden of proof concerning the appropriateness of their unilateral placement.

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364, quoting Rowley, 458 U.S. at 207 [identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-

65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115, citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010])

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-

65).

Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373

F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y.

2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167

F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-

079; Application of the Dep’t of Educ., Appeal No. 07-032).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-

71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).

DOE IEP and PROPOSED PLACEMENT

DOE did not present any evidence to defend or support the most recent IEP of

07/16/2015. (Ex C)

DOE representative at hearing relied upon the settlement process and reference to a “ten day notice” which was never provided. (T 5, 10-17, & 37)

I find that the DOE failed to provide an appropriate IEP and placement for the student for the 2015-2016 school year.

PLACEMENT WITH

Witnesses and documents detail the student’s placement. Witnesses detailed an understanding of the student’s needs and the appropriateness of the program with for the student for the 2015-2016 school year.

Student’s mother reviewed the student’s educational history and evidenced an understanding of the student’s needs. (T 19-T 20)

Witnesses detailed areas of the student’s program, special education needs and services designed and delivered to meet those needs.

Student difficulties are similar to those reflected in the IEP (Ex C 1-3) and contained in Evaluation (Ex D)

Difficulties include (T 58, Ex D 3),

(T 86), and (T 87-88),

(T 97-98, Ex D 6), and (Ex D 4).

Appropriate Student services include (T 51), (T

52-53), (T 53, Ex D 9), times this year (T 60),

, , , (T

54), , , ,

(T 54-55, Ex D 10), ,

(T 56-67), ,

(T 58-59, Ex D 9-10),

(T 86-

87 & 89), “

.” (T 87-88),

(T 97-98), “

.” (T 102-103)

Student progress is assessed with , ,

, , and . (T 93-94)

Student has from the activities (T 56) and (T 58)

now being able to . (T 59-60)

has seen progress in her sessions with the student ove r the years. (T 96)

needs are addressed in the current program. Though Student does not currently have he has been at . (T 100)

To address student difficulties helps with: “…

” (T 101)

“I feel comfortable addressing his focusing on helping him with that. I feel comfortable enough dealing with those needs.” (T 102)

I note that the DOE, though recommending services for the surrent school year made no attempt to evaluate the student or update student goals based on any new student information provided, such as the . (Ex C & D)

Parent confirmed her position that the student did not require in her letter of 07/22/2015. (G 4)

Uncontested Documentary evidence also supports the parent’s position that with the is appropriate for the student.

Documents include: Affidavit of and of which each confirm appropriate service delivery to the student (Ex L & M),

I find the educational instruction at with the 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 with the offered an educational program which met the student's special education needs and such placement is reasonably calculated to enable the child to receive educational benefits.

INDEPENDENT EDUCATIONAL EVALUATIONS and RELATED SERVICES

The IDEA and State and federal regulations guarantee parents the right to obtain an IEE (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]). IEEs are defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]). In addition to having an IEE considered by the CSE, parents have the right to have one IEE conducted at public expense if the parent disagrees

Additionally, an IHO is vested with the authority to direct that a student be evaluated at district expense (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]).

IHOs are "granted broad authority in their handling of the hearing process and to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA" (Warren Consolidated Schs., 106 LRP 70659 [LEA MI 2000]).

A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things, the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see E.A.M. v. New York City Dep't of Educ., 2012 WL 4571794, at *9- *10 [S.D.N.Y. Sept. 29, 2012]; S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *12 [S.D.N.Y. Nov. 9, 2011]; Letter to Clarke, 48 IDELR 77 [OSEP 2007]). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).

In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments, as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]). Subject to certain exceptions, a school district must obtain informed parental consent prior to conducting an initial evaluation or a reevaluation (34 CFR 300.300[c]; 8 NYCRR

200.5[b][1][i]; see Letter to Sarzynski, 51 IDELR 193 [OSEP 2008]) and provide adequate notice to the parent of the proposed evaluation (8 NYCRR 200.5[a][5]).

In the instant case the IEP team was provided with the parent obtained private evaluation for use at the 07/16/2015 IEP meeting. (Ex C & D)

Evaluation was completed in March of 2015. (Ex D)

Parent wrote the DOE in May of 2015 questioning why no new evaluations had been conducted. (Ex E) Letter includes “I have no option but to take my child for an independent evaluation…” (Ex E 1)

Parent had already obtained the evaluation at that time.

Parent presently seeks $ reimbursement for said evaluation. (F 1)

As there is not evidence that the parent disagreed with any DOE evaluation, nor that an evaluation was requested from the DOE, this relief is denied.

No evidence was provided regarding the initial claim relative to related service (Ex A 7) and that relief is denied.

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting (Ex C), provided private evaluation (Ex D) and communicated her concerns to the DOE (Ex G).

Parent also visited the recommended placement in a reasonable manner and made her concerns known to the DOE. (T 20-21, Ex G 8) DOE never responded and did not object to any of the contents of the parent’s concerns.

Parent would send the student to a public school if the placement was appropriate (T 23) and . (T 29)

Parent signed the Contract on 03/11/2015 (T 26 & 36, Ex I-4)

and a non refundable deposit of $ was paid . (T 26, Ex J)

By the time of the IEP meeting the parent had paid about $ to to secure a placement for her child. (T 28)

Parent advised the DOE that if an appropriate placement was not offered she would seek DOE funding for student placement. (Ex G 1)

I find the parent entitled to tuition reimbursement that includes:

$ , the $ , a fee of $ and fee of $ . The total of $ shall be awarded by Order. (T 78 & 104-105, Ex I)

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2015-2016 school year.

2. The parent shall be reimbursed for any payment made to , including the for the 2015-2016 school year tuition.

3. Total amount of Parent reimbursement shall be $ .

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

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

Dated: November 13, 2015

DANIEL AJELLO, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

ENTERED 10/13/2015

A Impartial Hearing Request, dated 08/31/2015, nine pages

B Findings of Fact and Decision, , dated 03/08/2014, 21 pages

C IEP, dated 07/16/2015, 21 pages

D February and March 2015 Evaluation, 13 pages

E Parent Correspondence to CSE, dated 05/18/2015, two pages

F February/March 2015 Invoice for Evaluation, one page

G Various Parent Correspondences, February 2015-September 2015, nine pages

H Proofs of Payment for Evaluation, dated 05/20/2015, one page

I School Contract, dated 03/31/2015, four pages

J Proofs of Payment to School, dated 05/14/2015, one page

K Student's Schedule, dated 10/02/2015, one page

ENTERED 10/27/2015

L Affidavit, (phonetic) dated 10/19/2015, three pages

M Affidavit, (phonetic) dated 10/20/2015, three pages

DEPARTMENT OF EDUCATION

NONE

IMPARTIAL HEARING OFFICER

ENTERED 10/13/2015

I Notice to the Parties of My Appointment, dated 08/31/2015, four pages

II Notice of Appearance, dated 09/02/2015, one page

ENTERED 10/27/2015

III Order on Pendency, dated 10/26/2015, seven pages