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: July 18, 2017

March 28, 2018

May 2, 2018

Actual Record Closed Date: June 14, 2018

Hearing Officer: James Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 18, 2017

Name Description On Behalf of

Esq. Attorney Associated with the Office of, PLLC, Attorneys for Parents — Parents

District and Department of Education Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 28, 2018

Name Description On Behalf of

Esq. Attorney Associated with the Office of, PLLC, Attorneys for Parents — Parents

Mother of Student — Parents

District and Department of Education Representative — DOE

School Psychologist Assigned to Committee on Special Education Region – Served as School Psychologist and District Representative at C.S.E. Meeting of March 6, 2017 Program Director at School (by phone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 2, 2018

Name Description On Behalf of

Esq. Attorney Associated with the Office of PLLC, Attorneys for Parents — Parents

Esq. Attorney Associated with the Office of, PLLC, Attorneys for Parents — Parents

Mother of Student — Parents

Social Worker at The School (by phone) — Parents

District and Department of Education Representative — DOE

The Matter of (thereinafter referred to as “Student”), was initiated by a Due Process Complaint Notice filed on behalf of Parents by , PLLC, dated June 30, 2017 and received by the New York City Department of Education’s Impartial Hearing Office on that date. The Due Process Complaint alleged that District failed to offer an appropriate program for Student for the 2017-2018 school year and sought reimbursement and/or direct funding for Parents’ unilateral placement of Student at The , located in , for the 2017-2018 school year, as well as certain transportation costs. (Exhibit A). The undersigned had been appointed as the Impartial Hearing Officer authorized to preside over this matter by notice dated July 7, 2017. Thereafter, Parents filed an Amended Due Process Complaint, dated November 3, 2017, was received on that date, and was subsequently accepted by the Department of Education. Such Amended Due Process Complaint added a number of additional specifics to Parents’ original Complaint.

On July 18, 2017, I conducted a Pendency Hearing for the singular purpose of determining the program to which Student was entitled to receive pending the completion of this administrative hearing. By Interim Order Regarding Pendency, dated July 19, 2017, I directed that Student continue at The at District and Department expense until the conclusion of this administrative proceeding. Thereafter, hearings were conducted on March 28, 2018 and May 2, 2018 for hearings on the merits. At the close of proceedings on may 2, 2018, both parties requested the opportunity to submit Post-Hearing briefs for my consideration. Those requests were granted so long as such briefs were submitted by the Close of Business on June 1, 2018. That date was later extended to June 5, 2018. Each party has timely submitted a Closing Brief and each has been read and considered. The Record Close Date was June 14, 2018.

Student is presently of age, having been born on . Student was diagnosed by on January 20, 2016 as having an Autism Spectrum Disorder (ASD); Attention Deficit Hyperactivity Disorder (ADHD); a Specific Learning Disability; and a Persistent Motor Tic Disorder (Exhibit G). When utilizing the Behavior Assessment System for Children -Parent Rating Scales (BASC-2), found that such scales were clinically significant for hyperactivity, atypicality; inattention; poor activities for daily living; functional communication; and adaptability. The utilization of the Autism Spectrum Rating Scale (ASRS) disclosed to the evaluator that student evidenced delays in Social Reciprocity, including verbal and non-verbal communication, with limited capacity for developing and maintaining relationships with other children or adults, with stereotypical ideations and behaviors. Regarding Student’s academic functioning, provided perfunctory information, noting that Student’s Expressive Language varied, but that his Conversational Language was generally adequate. It was reported that Student’s Verbal Language Processing and Comprehension Skills also varied, being average or low average. Student’s Math skills were reported to be Superior. The Report noted that Student had a history of behavioral difficulties with regard to complying with rules and routines, transitioning from preferred activities and significant anger when limits were set. The Report also described the difficulties Parents reported that they had encountered with Student at home, including outbursts when taken from a preferred activity; no motivation to attend school; and no interest in personal hygiene; and an inclination to run into a street without looking.

A clearer picture of Student’s academic skills was reflected in a Psychoeducational Update (Exhibit J) conducted just one day prior to the evaluation conducted by , that is, on January 19, 2016. In that Report, through the utilization of the Stanford-Binet Intelligence Scales – Fifth Edition (WB5) and the Woodcock-Johnson Tests of Achievement (Form A), Student evidenced a Verbal IQ of 116; a Non-Verbal IQ of 104; and a Full Scale IQ of 110. Student’s Verbal Reasoning abilities were in the High Average. However, Student’s score on the Knowledge Subtest on the SB5 were in the Low Average. It was noted that when compared to others at his age level, Student’s Standard Scores were very Superior in Broad Mathematics, math calculation skills and Brief Mathematics; Student’s Brief Writing Score was Superior; his

Broad Written Language Score was in the High Average Range. In Broad Reading, Brief Reading and Written Expression were all Average. Surprisingly, the Report stated that the Behavior Assessment System Self-Report was non-significant in all areas examined (Exhibit J).

Student was parentally placed at the School, a residential facility located in in January of 2016. Student continued at such educational facility for the 2016-2017 school year. District’s Committee on Special Education (C.S.E.0 convened on Marc h 6, 2017 to prepare Student’s Individualized Education Program (I.E.P.) for the 2017-2018 school year. Present at that meeting were serving as both School Psychologist and District Representative; identified as a Related Service Provider/Special Education Teacher, who participated by telephone, who presumably was Student’s Special Education Teacher (T.R.43); identified as a C.S.E. Clinician; , a Social Worker at School, who participated by telephone; ;a Speech/Language Pathologist at , who participated by telephone; as well as both of Student’s Parents. The Committee classified Student as having Autism. The Committee recommended that Student receive his special education program in a Special Class in a New York State Approved Non Public School having a staffing ratio of 12:1+1, as well as the Related Services of Counseling, two times per week, thirty minutes per session, individually; and Speech/Language Therapy once per week, sixty minutes per session, in a group of five. Parent Counseling and Training was also recommended once monthly for sixty minutes (Exhibit 12).

According to the testimony of School Psychologist and District Representative , the I.E.P. was finalized and forwarded to the Central Based Support Team (CBST) in order to create a packet to send out to the various New York State-approved non-public schools that would be considered appropriate placements for Student (T.R.61). Such was done (Ex. FF). There are in evidence a number of letters responding negatively to the request by CBST for placement (Exhibits HH; II; JJ; KK; LL; MM; and NN). However, according to a Memorandum sent by the CBST Administrator to , dated May 31, 2017 (Exhibit 14)), a placement had been secured at . The Memorandum states “see Acceptance Letter”. The Memorandum (Exhibit 14) continues:

“The Committee on Special Education must review the acceptance letter from the School. If the NPS is requesting any changes to the IEP, then the IEP team must review and if appropriate amend the Individualized Education Program (IEP) to reflect these changes.”

A review of the Acceptance Letter confirms that made no requests for any changes to Student’s I.E.P.

District’s C.S.E. reconvened on June 22, 2017. The Sign-In sheet indicates that present at such meeting were , identified in the I.E.P. of March 6, 2017 as a “C.S.E. Clinician” (Exhibit 14) and “notetaker: (Exhibit 13), but serving at this meeting as District Representative; , School Psychologist; both Parents;

, identified as “Friend”; , identified as “Friend”, who appeared by telephone; , Social Worker, appearing by telephone;

, Special Education teacher, appearing by telephone;

, Social Worker Supervisor, appearing by telephone; and

, Program Director, appearing by telephone. The Sign-In sheet also noted that a Parent Member was “Not Requested:”.

The Committee changed Student’s I.E.P. of March 6, 2017 (Exhibit 12), to the extent that it recommended that Student receive his special education program in a New York State Approved Non-Public School having a staffing ratio of 6:1+1 (Exhibit 17). The June 22, 2017 I.E.P. (Exhibit 17) also changed Student’s Related Service of Counseling from two times per week, thirty minutes per session, individually to one time per week, thirty minutes per session, individually and one time per week, thirty minutes per session, in a group of five; and Speech/Language Therapy from one time per week, thirty minutes per session, in a group of three to one time per week, thirty minutes per session, in a group of five.

Parents have brought this proceeding, alleging many specific areas in which the I.E.P. (Exhibit 17) is inappropriate and globally asserting that District failed to offer Student a free, appropriate public education (FAPE) for the 2017-2018 school year. Parents unilaterally continued Student in his program at The School for the 2017-2018 school year and seek reimbursement or direct payment of the costs of such placement, as well as reimbursement of transportation costs for Student and for Parents incurrent due to the location of the unilateral placement.

It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parent’s claim. Such prerequisites were established by the United States Supreme Court when considering claims for reimbursement brought by parents who had unilaterally placed their disabled child in a private facility. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 01-052). Further, it was later held that the fact that the facility selected by the Parent to provide special education services to the Child had not been approved as a school for children with disabilities by the State Education Department of the State of New York would not be dispositive of a parent’s claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). However, as the Supreme Court stated in Burlington (ibid):

“…parents who unilaterally change their child’s placement during the pendency of review proceedings, without the consent of state or local school officials, do so at their own financial risk.”

471 U.S. 359 at 374

BURDEN OF PROOF

Generally, in applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented, that I first determine whether or not the School District offered to the student a free, appropriate public education. The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404). Under the guidelines established by Burlington and Carter, should I determine that District offered Student an appropriate educational program, my inquiry into Parent’s request would cease at that point, for if a district has offered an appropriate program, Parents’ right to the requested relief must be denied. Under the same guidelines, if it is determined that District failed to establish the appropriateness of its program, I must then determine the appropriateness of the Parents’ unilaterally-selected educational facility. The burden of establishing such appropriateness rests upon Parents (N.Y.S. Education Law §4404). Should Parents fail to establish the appropriateness of the unilaterally-selected facility, Parents’ request for relief must be denied. If the unilaterally-selected educational facility is determined to be appropriate, I must, because the awarding of any relief is possible only by an invocation of the equitable powers inherent in the proceeding, then review the equities in order to determine whether equitable considerations favor an award of any relief to the parent. It is my determination that the burden of establishing that such equities do not favor an award of tuition reimbursement rests upon District.

DISCUSSION

Essential to any determination of an entitlement to the equitable relief sought by Parents in this proceeding is whether the agency responsible for a student’s education provided that student with a free, appropriate public education (FAPE). It is stated that a FAPE is offered to a student when (a) a 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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). However, such statement is no longer exactly accurate, for, while school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at *4 [2d Cir. Jan. 16, 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 as amended, if a procedural violation is 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 Parent' 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 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; 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]).

It has been stated that an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see 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).17 The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see P. v. Newington Bd. of Educ., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). The IDEA directs that, in general, an impartial hearing officer'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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; 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 Parent" (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 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 recommended program must be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances (Endrew

F. v. Douglas Country School District, 580 U.S.__; 2017).

As noted, District’s C.S.E. convened on June 22, 2017 and issued its I.E.P. providing that Student receive his educational program in a Special Class in a New York State approved Non-Public School having a Staffing ratio of 6:1+1, together with certain Related Services. The Committee had previously prepared an I.E.P. with a similar recommendation but with the provision that Student receive his program in a Special Class in a New York State approved Non-Public School having a staffing ratio of 12:1+1 (Exhibit 12). According to the testimony of Witness , offered only classes with six or less students (T.R.171). According to the testimony of Case No. 167031

Witness , when asked why the ratio was changed at the June meeting from 12:1+1 to 6:1+1, responded: “That is how he was accepted by ” (T.R.83). As previously indicated, the Acceptance Letter from (Exhibit 14) said no such thing.

However, it is not incumbent upon a Committee to explain why it chooses not to follow a previously-created I.E.P., but to establish that the I.E.P. under review is in all aspects appropriate. As noted above, there were eleven people participating in the June 22, 2017 Committee meeting, of which two were Department of Education employees and two representatives of . The remaining seven participants were Parents, friends of Parents and personnel from The School. An I.E.P. should reflect the consensus of the participants. Clearly there was no consensus as to the provisions of Student’s I.E.P., as Committee Minutes reflect opposition to the Committee’s recommendations by Parents and others. When consensus cannot be reached, according to the United States Department of Education, which is charged with enacting Regulations for the implementation of the Individuals with Disabilities Education Act, the responsibility falls upon the District Representative of the Committee to determine the program to which a student shall be entitled. In this instance, such would be, according to the Sign-In sheet (Exhibit 17), C.S.E. Clinician , serving as District Representative. Ms. did not appear or testify in this proceeding. However, the requirement imposed by the Regulations of the Commissioner of Education of the State of New York is that a mandated member of a Committee is:

“A representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district”

8 NYCR 200.3(a)(1)(iv)) There is nothing in the Record before me that would establish that C.S.E. Clinician was qualified to “provide or supervise special education sufficient to serve as District Representative in the June 22, 2017 Committee Meeting. Such is especially important in Case No. 167031 the instance before me, when, failing consensus, it fell upon District Representative to determine Student’s program.

Commissioner’s Regulations also mandate that the Committee include:

An additional parent member of a child with a disability residing in the school district or a neighboring school district and whose child is enrolled in a preschool or elementary level education program, provided that such parent member is not a required member if the Parent(s)

of the child request that the additional parent member not participate.

8 NYCRR 200.3(a)(1)(v) I note that the Committee meeting on June 22, 2017 had no Parent Member in attendance. The Sign-In sheet appended to the I.E.P. (Exhibit 17) notes, next to the line “Parent Member” the words “Not Requested”. However, it is not up to Parent to request the attendance of a mandated member of the Committee. Rather, only that such required member is not required if the Parents request that such member not participate.

It is, therefore, my finding and determination that District’s C.S.E. was improperly constituted when it met on June 22, 2017. I am aware that provisions of Commissioner’s Regulations address procedural deficits and the weight to be given to such. Commissioner’s Regulations (8NYCRR 200.5(J)(4)(II)) provide that: +

“In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free, appropriate public education only if the procedural inadequacies impeded a student ‘s right to a free, appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provisions of a free, appropriate public education to the parent’s child, or caused a deprivation of educational benefit.”

It is my finding and determination that District’s failure to have a properly constituted Committee when it convened on June 22, 2017 both impeded Student’s right to a free, appropriate public education and significantly impeded the parent’s opportunity to participate in the decision-making process. Indeed, as Parent testified, there was no discussion whatsoever at the June 22, 2017 meeting -simply that the meeting was about placement – not about discussion (T.R. 242-243).

Finally, I note that the I.E.P. created on June 22, 2017 (Exhibit 17) provided that Student was to receive a Twelve-Month Program, projected to begin on July 10, 2017. Witness confirmed that a Prior Written Notice was sent to Parents following the Committee meeting (T.R.69). Indeed, there is in evidence a Prior Written Notice, dated June 28, 2017 (Exhibit 19). However, such Notice fails to state the school which Student is to attend. Such is clearly required -= especially as the I.E.P. fails to name any specific facility. Further, such Prior Written Notice incorrectly advises Parents that the Committee recommended that Student receive a Ten-Month program. Further, such Prior Written Notice advised that the recommended services would be put into effect on September 9, 2017. With such inaccurate and misleading information and without naming the facility Student was to attend, it is my finding that District failed in its obligation to provide Parents with a proper Prior Written Notice.

Thus, it is my finding and determination that District has failed to sustain it burden of establishing that it offered Student a free, appropriate public education for the 2017-2018 school year.

Having found that District had failed in its burden, it is necessary that I determine the appropriateness of Parents’ unilateral placemen of Student at The School for the 2017-2018 school year. Parents bear the burden of establishing that such placement (N.Y.S Education Law §4404-1(c)). The standard for determining whether such burden has been successfully borne was stated by the Court in Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 at 112 (2d Cir. 2007, wherein it was stated that:

“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 to 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.”

The program that was afforded to Student during the 2017-2018 school year was described by Witness , Student’s former Social Worker at The School. Witness described The School program as offering a twelve-month residential program for children ranging in age from ten to eighteen, as well as a transitional program for those eighteen to twenty-one. The School deals mainly with children on the Autism Spectrum or with Attention Deficit Hyperactivity Disorder (ADHD) or anxiety disorders (T.R.216). Witness testified that students attend school from 9:00 a.m. to 3:00 p.m. and thereafter are programmed throughout the evening in either cottage or campus-wide activities. The School utilizes a token economy. The School has six cottages, with eleven or twelve student s residing in each cottage (T.R.2180. Student resides in a cottage with students ranging from fourteen to sixteen, with one twelve-year old. Witness described Student as struggling socially, failing to realize social boundaries and failing to read social cues, as a result of which Student may offend or annoy others or intrude into their personal space. When Student’s attempts to engage fail, Student may engage in disruptive behavior or silliness (T.R.221). Student also participates in school activities. The School requires students to participate in social interactions on a constant basis, which was opined as necessary for Student, whose inclinations are otherwise. The School has a policy of no cell phone use in order to prevent students from isolating. Witness testified that all of the students are at the School to build and practice social skills. The School is located on a campus, with cottages, a number of administrative buildings, a dining hall, and the school building.

Additionally, the grounds support a soccer field, a softball field, a basketball court and swimming pool (T.R.227-228). For the 2017-2018 school year, Student transitioned from a Self-Contained Class to a Departmental model, resulting in Student struggling to acquire skills necessary for such program. A review of Student’s Progress Information in each of his classes and subjects mentions this struggle (Exhibit Q). However, my review of those reports convinces me that the program Student is receiving at The School is appropriate and capable of meeting Student’s needs – especially his need to develop social skills necessary for Student to appropriately advance. I also found that the extensive Program Description of The School provided information additional to that of Witness that supports Parents’ claim that The School offers an appropriate program for Student.

Thus, it is my finding and determination that Parents have successfully borne their burden of establishing the appropriateness of their unilateral placement of Student at The School for the 2017-2018 school year.

Having made such determination, I must now examine whether Equitable Considerations warrant an award of reimbursement to Parents. District has offered no evidence that Parents have not fully cooperation with District or its C.S.E. in developing Student’s program. Parents have attended all Committee meetings, as well as providing the Committee with evaluations obtained by Parents. I find nothing in the Record before me to warrant any denial or diminishment of Parents’ request for reimbursement or direct payment to The School for the unilateral placement of Student at that facility for the 2017-2018 school year.

Parent and The School purportedly entered into an Enrollment Contract for Student’s attendance at The School for the 2017-2018 school year. However, such has not been received into evidence. An Affidavit made by , sworn to on January 18, 2018 (Exhibit N) reflects the total tuition costs for Student’s attendance at One Hundred Sixty-Three Thousand Nine and 40/100 ($163,009.40) and states that “Attached is a copy of the entire tuition agreement signed by parent.” - but with but a blank page attached. However, it is irrelevant for the purposes of this Decision that such information is available or that I make a determination as to its reasonableness. Pursuant to my Interim Order Regarding Pendency (IHO Exhibit I), based upon the agreement of the parties, District was ordered to pay The School for Student’s attendance at that facility until this administrative proceeding was concluded. Thus, The Department of Education has paid or is obligated to pay such tuition for the entire 2017-2018 school year – a school year which has concluded. Thus, any direction or Order requiring District or the Department of Education to pay The School for Student’s attendance at that facility for the 2017-2018 school year.

Similarly, Parents, in their Due Process Complaint, have requested reimbursement of the costs of transportation for Student to and from The School, as well as the costs for parental visits to and from The School (Exhibit B). An Invoice relating to travel on May 19, 2017, in the amount of One Hundred Six ($106.00) Dollars, will be disallowed, as such occurred during the 20162017 school year. Travel on June 30, 2017 (Exhibit S) and July 9, 2017 (Exhibit T) in the total amount of One Hundred Six ($106.00) Dollars, as well as travel on August 28, 2017 and September 5, 2017 (Exhibit U), in the total amount of One Hundred Six ($106.00) Dollars, will also be allowed. No reimbursement whatsoever will be allowed from Parental travel to visit Student during the 2017-2018 school year.

My findings are perhaps again meaningless, as the Interim Order Regarding Pendency (IHO Exhibit I), as agreed to by both parties, required District to pay the costs of Student’s transportation between his home and the School and the cost of parental visits to and from such placement, all at District and Department expense, until the conclusion of this administrative proceeding.

ORDER

Based upon the above review, it is

HEREBY ORDERED that District and the New York City Department of Education pay Parents and The School, by either reimbursement or direct payment for the unilateral placement of Student at The School for the 20172018 school year, in the total amount of One Hundred Sixty-Three Thousand Nine and

40/100 ($163,009.40), less any amounts paid or to be paid by the New York City Department of Education: and it is

FURTHER ORDERED that District and the Department of Education pay to Parents, as and for reimbursement of travel expenses incurred by Student to and from his home and The School, in the total amount of Two Hundred Twelve ($212.00) Dollars, less any amounts already paid by the New York City Department of Education for such; and it is

FURTHER ORDERED that all other claims or requests are hereby denied and dismissed. Dated: June 27, 2018 James Walsh mv

JAMES P. WALSH, ESQ.

Impartial Hearing Officer JW:mv

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD JULY 18, 2017

A. Parents’ Due Process Complaint Notice, 6-30-17 (18 pages; Parents)

B. Ten-Day Notice from, PLLC to, dated 6-15-17 (4 pages; Parents)

C. Student’s I.E.P. as Prepared by District’s C.S.E. on 3-6-17 (9 pages; Parents)

D. Findings of Fact and Decision of I.H.O. J. Guerra, dated 7-15-16 (12 pages; Parents)

DOCMENTATION ENTERED INTO RECORD MARCH 28, 2018

No.: # of Pages Description: Offered by: A 18 Parents’ Due Process Complaint Notice, Parents dated 6-30-17 B 18 Parents’ Amended Due Process Complaint Parents

Notice, dated 1-3-17 C 4 Ten-Day Notice from , Parents

PLLC to , dated 6-15-17 D 9 Student’s I.E.P. as prepared by District’s C.S.E., Parents dated 3-6-17 E Not Received F Not Received G 18 Neuropsychological Evaluation of Student by Parents , Ph.D., dated 1-20-16 H 4 Addendum to Neuropsychological Evaluation Parents of Student by , Ph.D., dated

10-30-17 I 1 Letter: To Whom It May Concern by , Parents

– The School, dated

11-6-17 J 12 Psychoeducational Update, dated 1-19-16, by Parents , M.S. K 5 Psychological Evaluation of Student, dated Parents

8-15-15, by , Ed.M..NCSP and

, Psy.D. L 20 Program Description 2017-2018 of The Parents

School M 2 The School General Agreement, Parents

Terms and Conditions – Enrollment Contract

dated 1-22-16 N 1 Affidavit by , Director of Finance Parents of The School, sworn to on 1-18-18

O 1 Student’s Class Schedule at The Parents

School P 3 The School General Agreement, Parents

Terms and Conditions, dated 1-22-16 (2);

Statement by of The

School re: Attendance, dated 3-2-18 (1) Q 21 School Review Information - Parents R 1 School Transportation Invoice, Parents dated 5-19-17 S 1 School Transportation Invoice, Parents dated 6-30-17 T 1 School Transportation Invoice, Parents dated 7-19-17 U 1 School Transportation Invoice, Parents dated 9-5-17

V 1 Document – – 10-17-17 Parents W 1 Affidavit by , sworn to on 10-22-17 Parents X 1 Mapquest directions from Parents

Y 1 Resume of – undated Parents Z 1 Resume of – undated Parents AA 1 Resume of – undated Parents BB 27 Response by Family of Services – Parents a/k/a/ to subpoena CC 2 CSE Subpoena , dated 12-14-17 Parents DD 1 Memorandum from CBST to dated Parents

5-31-17 – Notice of Secured Placement EE 1 Letter to Parents from CBST Deputy Director Parents , dated 3-17-17 FF 2 NYC DOE Referral Letter, dated 3-17-17 Parents GG 1 Listing of CBST Referrals Parents HH 2 Response to CBST by , dated Parents

3-28-17 II 1 Response to CBST by . Parents JJ 1 Response to CBST by Parents

School, dated 4-5-17 KK 1 Response to CBST by Parents

Center, dated 4-20-17 LL 1 Response to CBST by , dated 5-1-17 Parents MM 1 Response to CBST by , dated Parents

5-28-17 NN 15 Email correspondence between Parent and Parents

NYC DOE personnel – various dates

OO 1 Response to CBST by , Parents

dated 4-18-17 PP 2 Level I Vocational Interview/Parent, dated Parents

2-1-16 QQ 1 Copy of Email from Parents to , Parents dated 6-22-17 RR 1 Email Delivery Incomplete Confirmation Page, Parents dated 6-23-17 SS 1 Email Correspondence between NYC DOE Parents

Personnel; Parents and The School, dated 6-22-17 TT 3 Social History Update, dated 2-1-16, by . Parents

UU 3 Social History Update, dated 1-11-17, by Parents

VV 6 Email from Parent to , dated Parents

6-19-17 WW 2 Minutes of Meeting – The School, Parents dated 2-14-18

1 4 SESIS Events Log for period 1-15-17 to DOE

4-20-17

2 5 Summary of [Student]’s Behaviors Affecting DOE

His Learning and Compromising his Safety, by

Parents, dated 1-11-16

3 7 Pediatric Developmental Revisit, dated 1-8-16, DOE by , M.D., FAAP

4 27 Neuropsychological Evaluation of Student by DOE , Ph.D., dated 1-20-16 (Identical to Parents’ Exhibit G but with many duplicative pages) 5 1 Teacher’s Report by ,

Center, dated 2-1-16 6 3 Counseling Report by , LCSW-R, of the DOE

Center, dated 2-12-^[16] 7 3 Speech-Language Initial Impressions, dated DOE

2-22-16, by , M.S., CCC-SLP, of

The School 8 2 Meeting Notice to Parents, dated 1-6-17 DOE 9 1 Letter to Parent Requesting Consent for Testing DOE dated 1-13-^[17]

10 3 Level I Vocational Interview – Parent, dated DOE

1-11-17

11 2 Meeting Notice to Parents, dated 2-14-17 DOE

12 15 Student’s I.E.P. as prepared by District’s C.S.E. DOE

on 3-6-17

13 17 Minutes of C.S.E. Meeting of 3-6-17 DOE

14 3 Memorandum, dated 5-31-17, to from DOE

CBST Administrator

15 2 Meeting Notice to Parents, dated 6-2-17 DOE

18 13 Minutes of C.S.E. Meeting of 6-22-17 DOE

19 3 Prior Written Notice (Notice of DOE

Recommendation), dated 6-28-17

DOCMENTATION ENTERED INTO RECORD MAY 2, 2018

No.: # of Pages Description: Offered by:

NONE

OTHER DOCMENTATION ENTERED INTO RECORD

No.: # of Pages Description: Offered by: I 8 Interim Decision Regarding Pendency, dated IHO

7-19-17 II 25 Petitioners’ (Parents’) Post Hearing Brief IHO III 8 Closing for the Department of Education IHO

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Footnotes

[16] 2 Meeting Notice to Parents, dated 6-9-17 DOE

[17] 16 Student’s I.E.P. as prepared by District’s C.S.E. DOE on 6-22-17