New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: Student‟s Name: Date of Birth: District: 3 Hearing Requested By: Parent Date of Hearing: September 29, 2010

October 25, 2010

November 18, 2010

January 21, 2011

February 22, 2011 Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 29, 2010

Attorney — Student

Parents

Friend — Student

Education Teacher — DOE

Attorney — DOE

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 25, 2010

Attorney — Student

Parents

Friend — Student

Attorney — DOE

Attorney — DOE

School — DOE

Assistant Principal — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 18, 2010

Attorney — Student

Parents

Assistant Clinical Director — Student

Academic Director — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 21, 2011

Attorney — Student

Parents

Friend — Student

— Student

Attorney — DOE

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 22, 2011

Attorney — Student

Parents

Intern — Student

Attorney — DOE

— DOE

On July 13, 2010, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), concerning a dispute involving the education program of a (19) year old student attending a private residential school and the New York City Department of Education (“DOE”) District 03. After adjournments were granted on consent or for good cause, the impartial hearing was held on September 29, 2010, October 25, 2010, November 18, 2010, January 21, 2011 and February 22, 2011. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student‟s Individualized Education Program (“IEP”) dated May 27, 2009 is procedurally and substantively flawed. (See Parent‟s Due Process Complaint - “DPC”) Accordingly, the Parent unilaterally placed the student a private residential school for the 2009-2010 school year. (Id.) The Parent seeks reimbursement for the student‟s tuition, room and board and related services for the 2009-2010 school year.

THE DOE‟S CASE

The DOE argues that the student was offered a “free and appropriate public education” (“FAPE”) for the 2009-2010 school year. (T-52) The agency further argues that the student‟s private residential school placement is overly restrictive, does not offer mainstreaming opportunities, has only on-line classes, the program is not individually designed for the student and the school is not a state approved non-public school. (T-54) The Parent did not give specific objections to the DOE recommendations at the IEP meeting and did not visit the recommended program. (T-55) Neither did the Parent produce the student for an updated evaluation or provide any updated evaluations to the Committee on Education (“CSE”). (Id.) Finally, the Parent did not give the DOE any notice of her unilateral placement, nor did she file a DPC until well after the school year ended. (Id.) The DOE called (3) witnesses to testify on its behalf and submitted (23) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE‟s first witness attended the student‟s IEP meeting. (T-60) She is a teacher. (T-62-3) She has worked for the DOE for (27) years. (T-63) She has a New York State permanent certification in the areas of reading, education, school administration and supervision. (T-63-4) She attended the student‟s annual review IEP meeting on May 27, 2009. (T-66) She signed in at the meeting as the “ education teacher” and “related service provider”. (T-67) The private school representative participated in the meeting via telephone. (Id.) Also present was the school , a social worker, a friend, a Parent Member, a general education teacher and “someone from the school.” (T-72-3) The student‟s current teachers were not present. (T-73) A letter was sent to the Parent telling her that it was imperative that the student‟s teacher be available for the IEP meeting. (T-76)

The witness stated that at the meeting they had teacher reports, a report, reports from the student‟s previous private residential school placement, a document from the social studies person, something from the science teacher, a math evaluation, a therapy report and an English evaluation. (T-76-9) The documents reviewed are DOE Exhibits 8, 11, 12, 13, 14, 15 and 17. (T-85) She has never met student. (T-87) She drafted pages 3, 6, 9 and the transition page of the IEP. (T-88) The IEP team drew a conclusion that the student‟s problems or issues at this point were primarily of an nature. (Id.) They did not believe the student would benefit from being in a regular public school. (Id.)

The private school did not have materials that gave the student‟s grade level and was told that they did not. (T-88-9) They used a report based on older testing. (T-

90) Information from 2006 was used to determine the student‟s levels in 2009 in that the Woodcock Johnson “3” is a normed test against youngsters of the same age or grade and based on the student‟s standard score, she knows where the student is relative to the population. (T-91) She concluded that the student‟s scores were in the average range in academic areas. (Id.) The evaluation dated 2006 references exams that the student took in 2003. (T-93) In 2003, the student scored in the low average and 2006, she scored in the average on IQ. (T-94-5)

The witness stated that the student‟s strengths are that she is a visual learner. (T-

98) She has a history of processing and deficits in , making inferences and writing. (T-99-100) Goals were included on the student‟s IEP based on her strengths and weaknesses. (T-102) The CSE recommended and accommodations within the classroom. (T-105-6) The student had not been receiving . (T-106) The focus and drive at the IEP meeting was on the student‟s aspects. (Id.) The student‟s mother did not object to any aspect of the IEP at the meeting. (T-108-9)

On cross examination, the witness testified that she has been “certified” for grades “N” through “12” for (10) years. (T-111) She taught a in a general/regular school. (T-113) A gentlemen from the student‟s private school told her that there were no standardized tests or regents exams at the private school. (T-114-5) She did not have DOE Exhibits (18) through (23) at the time of the IEP meeting. The “group” determined that the student was at the 10th grade instructional level. (T-116) Besides the Parent‟s friend, there was no one at the IEP meeting that had met the student. (T-117) The IEP team changed the student‟s classification. (T-119-20) The therapist said the student was having a lot of problems in the and realm. (T-120-1)

The witness stated that the student‟s report from 2006 classified the student as having a “ .” (T-121) There was no discussion of placing the student in a residential placement. (T-122) At the time of the meeting, the student‟s English report was just under two years old. (T-126) She does not know if the CSE requested to re-evaluate the student. (T-128) She concurred with the CSE recommendation of a class in a school. (T-129) She is not familiar with the ultimate placement offered. (T-130) She believes that the student requires a highly structured therapeutic school environment. (Id.) She typically uses a “ survey” to develop a transition plan, but such a survey was not conducted for the student in this case. (T-134) The witness stated that they removed and as a related service for the student. (T-135) The student‟s mother and private school said that she was not receiving and . (Id.) The student was receiving at the private school. (Id.) The evaluation they used also recommends a therapeutic boarding school. (T-137) The CSE could not consider that recommendation because they did not have a current or medical report, or the documentation needed to send the case on the Central Based Support Team

(“CBST”). (Id.)

The DOE‟s second witness conducted a CSE review of the student on May 27, 2009. (T-149) He is a school who has been employed by the DOE for approximately (26) years. (T-151) The May 27th meeting was an “annual review” to address the student‟s 2009-2010 school year. (T-153-4) He was both the school and the district representative at the meeting. (T-154)

The witness stated that he did not have the opportunity to meet the student in person. (T-155) At the meeting they had the CSE review file, previous assessments of the student, school reports and transcripts, a -educational evaluation, reports from the student‟s private school, the notice of the meeting, an logical evaluation, a social history report, social studies evaluations, science evaluations, a math evaluation, a therapy report, an English evaluation, an academic transcript, a discharge progress report, the progress character, academic assessment, an independent study, learning styles inventory and an academic class schedule. (T-155-8) Some of these reports came from the student‟s previous private schools. (T-157-8) The “content” of the documents reviewed was passed around. (T-158) He can‟t recall if there were documents that were provided but not used. (T-159)

The witness stated that the student was classified as having an disturbance. (T-160) The student was diagnosed with a “ ”, and aggression. (Id.) They recommended a class in a school for the student. (Id.) They believed that was the “least restrictive environment” (“LRE”) for the student. (T-161)

The witness also stated that reading the reports indicated that the student at time demonstrated average skills and other times above average performance. (Id.) The student‟s previous private school‟s reports in math, social studies and science indicate that she can do well. (Id.) The student has made progress in the social domain. (T-162) The student needs a well-structured therapeutic environment that could help to monitor her s and also provide her with support that she could continue to make progress in both academic and social- domains. (Id.) The DOE recommended staffing ratio is “:1.” (Id.) He cannot recall anyone disagreeing with the recommendation or the student‟s classification. (T-162-3) However, the student‟s mother and the representative from the student‟s private school believed the private school program was appropriate for the student. (T-163-4)

The witness stated that they offered a 12-month program that provides supervision and monitoring. (T-164) His understanding of the student‟s private school is that it is a residential setting based on the theories of and research dealing in the domain of issues. (T-165) They did not recommend a residential setting because the student was making significant progress. (T-166) The student‟s evaluation from September of 2006 and her private school assessment report indicate that she was functioning above her th cognitive ability, had completed all the grade requirements and even completed and year course material. (Id. & D-19)

The witness stated that they also considered a class in a school for the student, but the program did not provide the necessary support in the areas of social- development. (T-168) The curriculum would not be adequate given the student‟s level of functioning. (Id.) The student‟s goals were determined based on the level of her functioning at that time. (T-170) The entire CSE team contributed to the development of the student‟s IEP goals. (T-172) The student was recommended for a 12-month program to maintain a level of continuity and structure. (T-178-9) A “ Intervention Plan” (“BIP”) was not developed for the student because she had demonstrated significant progress and her could be managed through the program they recommended. (T-179) Also, the student did not demonstrate or display or outside of the domain. (Id.) The witness stated that they recommended and terminated the student‟s and services because her private school was not providing that therapy. (T-180-1) The student‟s mother participated at the CSE meeting by describing how the student was functioning, her issues, her instability her ability to regulate her and their parent-child . (T-183) The private school representative was also given an opportunity to participate and his input was incorporated in to the IEP on page (4). (Id.) A teacher from the student‟s private school did not attend the meeting. (T-184)

On cross examination, the witness testified that he attributed the student‟s progress to the years she spent in various schools and her mother‟s interventions. (T-185) The student‟s previous private school reports indicate that she has made progress. (T-

187) The student‟s 2006 evaluation recommends a therapeutic setting, a residential setting with a small class. (T-190) They are supposed to conduct a “social history reevaluation every three years as part of a student‟s triennial evaluation. (T-191-2)

The witness stated that the student‟s mother and her file indicate that she s herself and attempts suicide. (T-193) He did not recall hearing at the meeting that those were still issues for the student. (Id.) Neither does he recall hearing that the student is a flight risk. (Id.) Both the student‟s mother and her private school representative, who is the primary therapist at the school, wanted the student to stay at the private school. (T193-5) Other than the student mother, her friend and the private school representative, no one at the meeting had ever met the student. (T-196-7)

The witness stated that there was nothing in the reports that indicated the student was a flight risk. (T-198) Later he conceded that DOE Exhibit 14, indicates there was an objective to stop the student from running away and that he reviewed that document at the CSE meeting. (T-198-9) He cannot recall if he said anything to the Parent at the CSE meeting concerning the “Central Based Support Team” (“CBST”). (T-202) The student‟s issues were going to be addressed in the recommended DOE program through . (Id.) To the extent that the DOE is an educational organization, it cannot really dwell so much into family dynamic or family or therapy. (T-203)

On re-direct testimony, the witness testified that he did not recall the Parent making a request for a “social history.” (T-206-7) No other additional evaluations were requested to be performed on the student. (T-207) Neither was a request made for a New York State residential program to his knowledge. (T-208) It was his understanding that according to the Parent, any recommendation they made for a based or school would be inappropriate for the student. (Id.) On re-cross examination, the witness testified that he did not recall discussing other New York State approved residential programs with the Parent. (T-209)

The DOE‟s third and final witness never met the student and only had her documentation in front of him. (T-212) He is an Assistant Principal who has worked for the DOE for (8) years. (T-214) His district 75 school has students that predominately have been classified as having an disturbance. (T-215) He is a licensed education teacher as well as a licensed school administrator. (T-216)

The witness stated that his school has related service providers. (T-217) for the 2009-2010 school year, their register was about (269) to (270) students and their attendance was about (70%). (T-218) The school is entirely self-contained education. (T-219) In 2009-2010, there were about (16) ‟:1” classes, with grades ( ) through ( ) at the main site. (Id.) They take standardized assessment curriculum. (T-

220) The two staff members in a class can differentiate and provide instruction on a level that a student can be successful on. (Id.) Related services are provided depending on the student‟s IEP. (T-221) functions as a pull-out. (Id.)

The witness stated that he was looking at the student‟s May 27, 2009 IEP. (T-

222) He has never met the student. (T-223) In 2009-2010, they would have had (4) :1th classes for the grade. (T-224) It‟s really hard for him to say what class the student would have been in without having met her. (T-224 & 227) All of their teachers are either certified in the content area or in education. (T-225) He did have a place for th the student in the grade for the 2009-2010 school year. (T-227-8) It would depend on a thorough review of the student‟s transcripts to decide which class the student would be th placed into. (T-229) The English class uses the DOE approved curriculum for grade English. (T-230)

The witness stated that the student would have been assigned a and would have been provided the preordained mandates. (T-231) He believes that he could have provided all of the student‟s academic management needs on her IEP. (T-233) They have a school-wide intervention where they have events or different things that acknowledge appropriate . (T-236) They usually look at each individual kid and find out what works for them. (Id.) They would have to meet the student to see if a BIP should be written for her. (T-237)

The witness stated that they would have the student seated close to the paraprofessional since she has trouble with processing. (T-238) They would differentiate. (T-239) They have auto, culinary, music cosmetology and art as electives at the school. (T-240) Based on his view of the student‟s IEP, he believes his staff is qualified to meet the student‟s needs. (Id.) The school also has extended day and afterschool programs. (T-241)

The witness also stated that if a teacher knows that a student is in attendance but not in class, they will contact the student‟s parents. (T-242) The Deans will also call the parents if they see the students repeatedly in the hallway. (Id.) He believes that they would have been able to work on the student‟s academic goals. (T-242-3) For a „transition plan”, they would have been able to utilize that between the teachers and the clinicians to help the student in the . (T-243-4) They do have a program that is slightly smaller than a : for a lot of the more fragile students that have been in a residential treatment, but he does not know if it would be appropriate for the student because he has never met her. (T-244)

On cross examination, the witness testified that the classes at the school are separate, but they all have the same teachers. (T-246) He does not know what specific class the student would be a part of. (Id.) Paraprofessionals have to have a diploma and have to be registered and certified through the city or the State of New York. (T-247) The paraprofessionals receive training on how to deal with students who have an disturbance. (T-248) He has been trained in crisis intervention. (Id.) They have individual class profiles for internal use and consider themselves to be a therapeutic environment. (T-249) The have to be certified. (T-250) They have social workers, and clinicians. (Id.) They do not have a . (T-251)

The witness stated that they have had situations with students who run away. (T-

255) They voucher the student‟s electronics and belongings and return them at the end of the day, which keeps them in the building. (Id.) They also provide single day metro cards and appropriate bussing, the Dean monitors the hallway and there is school safety monitoring. (Id.) They have also had students that exhibit ting s. (T-255-6) If a student needs an intervention, they have s with Health Clinic and

Hospital and can refer them there. (T-256) Their general program includes over-arching ideas like respect, politeness and being prompt. (T-256-7) The students that have disturbances tend to disorder, have low tolerance and trouble with others. (T-259) He is not familiar with “ disorders.” (T-259-60) There was no re-direct examination of the witness. (T260)

THE PARENT‟S CASE

The Parent argues that she received notice for a CSE meeting March 27, 2009. (T-56) The CSE used a (3) year old evaluation, a (7) year-old social history and an (8) year old evaluation to assess the student. (Id.) The DOE has not observed or evaluated the student in years. (Id.) The student has a significant disturbance that requires a therapeutic environment. (T-57) The private residential school is an appropriate setting for the student. (Id.) The CSE did not have the student‟s file at the IEP meeting. (T-58)

The Parent called (3) witnesses to testify on her behalf and submitted (15) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent‟s first witness was the student‟s teacher at the private residential school. (T-272) She holds a teaching certificate in the State of Missouri in school social studies, elementary education and was formerly certified as a pre-school director. (T-274) She is now the academic director of the private residential school. (T-275) The private school is a residential treatment facility for troubled youth. (T-277) They treat students with trauma, and regulation. (T-277) They are an approved “private agency” with the Department of Missouri Education. (Id.) They average about (40) students. (Id.)

The witness stated that they have open enrollment all year long. (T-278) The students are from age ( ) to ( ). (Id.) It is a co-ed but separate school. (Id.) The private school uses an independent web-based high school curriculum. (Id.) They also use an independent college study program, which is what the student used for the first year. (Id.) Their classrooms have a maximum of (12) student for (3) to (5) hours a day. (Id.) They currently cater to about (26) different states and are able to meet the graduation requirements of those different states through the curriculum that they use. (T-279) The students receive a diploma which is accredited through the Northwest Association of Accredited Schools. (T-279-80) There is one co-ed classroom at the school. (T-280) The students have a “lead teacher”, a “life coach” and support staff or aides. (T-280-1) There are (6) certified staff in all areas. (T-281) They also have weekly, bi-weekly training staff meetings on the therapy model. (T-282)

The witness stated that the therapist send out training logs after any training that they do with the students. (T-283) She taught the student history before she became the academic director. (Id.) The student was at the private school from August of 2008 to June of 2010. (T-284) The student has a lot of frustration in the classroom, a lot of trust issues and is a “doubter.” (Id.) Sometimes there would be a flat out refusal to work by the student and the use of pretty offensive . (T-285) The student had a lot of good days also. (Id.) If the student had a good with you she could talk through her frustrations. (T-286) The student was given therapy. (Id.)

The witness stated that they kept monthly reports and a daily log of on the student and sent lots of correspondences to her home. (T-287 & P-N) The student‟s program is “individualized.” (T-288) The student had an overall GPA of “ ” and “ ” credit hours. (T-290) The student‟s transcript is dated June 7, 2010. (T-292) For the 2009-2010 school year, the student was enrolled in arts, U.S. history, II,

, art courses, physical education, independent courses, “ - ‟s” and interpersonal s. (T-294) The student was maintaining good grades and was moving diligently towards graduation. (T-295) The student had both positive and negative interactions. (Id.) The student needed to finish arts 11 and U.S. history and she would have met the graduation requirements. (T-297) Graduation requires a minimum of (24) credits in specifically given areas. (Id.) Several students have left the private school and gone on to .(T-298)

The witness stated that the student would have worked with all (6) teachers at the private school. (Id.) They do elective “PE” and art on Saturdays. (Id.) The student was in school every day. (T-299) The student also has central processing disorder. (T299-300) They have a education teacher on staff. (T-300) It is obvious by the work the student did at the private residential school that she was able to progress in that setting. (T-301)

On cross examination, the witness testified that that she does not have a certification in education. (T-303) However, she has worked in the “ education in title one reading.” (Id.) The private residential school is licensed to educate students and uses an outside curriculum to do so. (T-305) With the exception of one classroom, boys and girls are not educated together. (Id.) For the older students, like this student, they try to incorporate them in the co-ed classroom. (T-306)

There are a few discrepancies between their requirements and those of New York State in the sciences and arts. (T-307-8) The student would have needed to have taken a few different additional courses when she got home. (T-307-8) There are minimal distractions in the classrooms and the students work independently. (T-308) They average (8) to (12) students per classroom. (T-309) The students are not grouped academically. (T-311) They try to make sure that the course work needed for a particular grade is met within that school year‟s range. (T-314) Should the students be ready to start a course ahead of time, they let them progress. (Id.)

The witness stated that the teachers are divided by subject. (T-315) The private school goes all year round. (Id.) Twice a week and as needed, the student interacted with the education teacher. (Id.) The teachers do not develop curriculum for the students. (T-316) If the student refused to work and needed to leave the classroom, she was granted permission to do so. (Id.) The students are required to come to the classroom regardless of whether they want to be there or not. (T-317-8) The independent high school program they use is not a education program. (T-318-20) The teachers reiterate the material and teach the lessons individually to the students. (T-320) The teacher goes from student to student while they‟re in the classroom. (Id.) They do not have any control of the curriculum. (Id.) Sometimes the curriculum offers the student choices as to what novels to read or in their writing responses. (T-321) There was a required textbook for the history course. (T-322)

The witness stated that the student‟s English 11 and U.S. history courses are still pending. (T-325-6) Generally, students stay at the private residential school about (14) to (20) months. (T-328) Most of their students come in on track or behind. (T-329)

On re-direct testimony, the witness stated that the student was at the private residential school because of her needs. (T-333) On re-cross examination, the witness stated that the gender breakdown in the student‟s academic class was about 50/50. (Id.) She does not know if there was an assessment of the student prior to her admission to the private residential school. (T-335)

The Parent‟s second witness was the student‟s primary therapist at the private residential school. (T-337) He is a licensed professional in the State of Missouri for (4) years. (T-339) He is the primary therapist for two students and then oversees the other therapist at the private school. (T-340) Students enrolled at the private school are struggling with issues of , and . (T-341) The students are consistently monitored. (T-341-2) The students are not allowed to leave the campus without supervision. (T-342) When the students return to the private school, they do visual body checks for . (T-343) The witness states that they do individual, family, group and therapy as well as therapy. (Id.) There are (6) therapist at the private school who have at least a master‟s degree. (Id.) They have approximately (80) employees. (T-344) All of the frontline staff is trained to deal with the students effectively. (Id.) They have weekly training sessions at the private school where they talk about issues, interventions, physical interventions, CPR and first aid. (Id.) They monitor a student‟s progression through a master treatment plan and treatment team summaries. (T-345) The private school is a therapeutic environment. (T-345-6) It is a structured environment. (T-346)

The witness stated that he was the student‟s primary therapist during the 20092010 school year. (T-347) The student has incredibly strong opinions, an incredibly strong will, a great sense of humor, some academic issues, some issues, some issues, self-tendencies, abuse, struggles with and issues and has a diagnosis of disorder. (T-347-8) He developed a treatment plan for the student. (T-349 & P-I) The student herself while at the private school approximately three times. (T-357) That condition improved with the student‟s ability to and express herself. (T-358)

The witness stated that group therapy occurred approximately four hours per week. (T-358-9) They saw that the student was able to create a better sense of vulnerability. (T-361) Individual therapy was one hour per week at a minimum. (Id.) On occasion the student would ask to speak with him if she was struggling. (T-362) The student has progressed in terms of her self- s. (T-363) There was an increase in her vulnerability with her honesty. (Id.) Family therapy occurred at least once a week for one hour. (T-363-4) There was incremental growth in the student‟s with her mother. (T-364)

The witness stated that home visits are based on an assessment of the student‟s state and their . (T-365) He communicates with the Parent via e-mails, and phone calls. (T-366) therapy is the experiential piece of the program where they focus on developing personal skills and personal belief. (T-366-7) therapy is a minimum of three hours per week. (T-367) therapy is used to help the students with issues or . (T-368) The student was not able to provide the care that the needed during a home visit. (T-369) The student made progress during the 2009-2010 school year. (T-373) Her with her peers increased, an investment in her academics was positive and she was able to work. (Id.) The student is diagnosed with “ .” (Id.)

The witness also stated that the student has progressed in her with him and with an increase in intimacy with her mother. (T-374) He participated in the student‟s IEP meeting on May 27, 2009. (T-375) The residential private school was most beneficial for the student at that time. (T-376)

On cross examination, the witness testified that he did not remember if a teacher from the private school participated in the IEP meeting or was asked to. (T-377-8) He spoke about how the student was doing academically and her at the meeting. (T-

378) He did not prepare anything in writing for the meeting. (Id.) The Parent had been working with a professional educational consultant to find a placement for the student even before she attended the private school. (T-379) “Reunification” with the Parent is the primary goal at the private school. (T-381-2) The student did have maladaptive take place at the private school. (T-382) The student did herself at the private school during the 2009-2010 school year. (T-384-5) The student could refuse “ therapy” if she wanted to. (T-384-5) If she did though, they always did something that made the time “ ” time that was certainly therapy. (T-385)

The witness stated that the group consisted of (6) to (8) students. (Id.) The “interdependence group”, is gender specific where there could be up to (20) females addressing an issue all together. (T-386) At times, the student had difficulty managing her and tendencies and s. (T-386-7) She also had issues with . (T-388) There was a specific meeting to discuss the student‟s case at least once a month. (T-391) The student broke her right hand as the result of her frustration towards another student. (T-392 & P-O)

On re-direct testimony, the witness testified that there was therapeutic intervention with the student on daily basis. (T-395) The student was on , took something for allergies and an . (T-396) The nurse administers the medication. (T-397) He might have provided a letter to the CSE. (Id.) On re-cross examination, the witness stated that all of the students receive an initial evaluation with their . (T-398) After that, it was a choice. (T-399) The student‟s issues were determined via reports, evaluations, testing and a history received from the Parent. (T-400) They had an evaluation done prior to the student‟s arrival at the private school and one done at the private school. (Id.) He would review a potential student, but did not have the final say so. (T-401) He did not conduct the review concerning the student‟s admittance. (Id.)

The Parent‟s third and final witness the student. (T-409) She the student in . (Id.) In the grade, the student was classified as . (T-412) Thereafter, the student attended a private school for two years. (T-414) She started to exhibit , some activity, real management issues and problems th academically. (T-415) In the grade she got a call that the student was herself. (Id.) The student was also found with school kids and . (Id.) The witness sent the student to a wilderness program that summer. (T-416) An extensive evaluation was conducted of the student. (T-416-7 & D-8) She put the student in residential treatment. (T-417) The student aged out of the program and was in a “ program” for a few months. (T-418) From there, the student went to her current private residential school. (Id.) The student was there for two years. (T-419)

The witness stated that when she received the notice of placement she wrote on the bottom of it that she had put the student in a non-public school and that she was reserving her right to seek reimbursement. (T-421 & P-B-1) She sent that notice before the IEP meeting. (T-422) She sent the CSE a cover letter with an additional copy all of the school records and evaluations that were done of the student. (T-423 & P-A-1) She attended the CSE meeting. (T-424) The student‟s private residential school therapist also attended the meeting. (T-425) The therapist was on the phone at the meeting for approximately (1) hour. (T-426) The therapist recommended that the student remain at the private residential school. (T-427) She had asked the private school teachers to do an individual assessment of the student‟s academic progress. (Id. & P-K) She provided the assessment to the CSE before the May 27th meeting. (T-428)

The witness stated that the student‟s private residential school is the only one in the country that deals specifically with teenagers with “reactive disorder.” (Id.) She disagreed with the CSE‟s recommendation to place the student in a public school because the student was not safe at home and needed a lot of supervision. (T-430) She was told at the CSE meeting that if they recommended the private residential school it would only be “kicked back to us.” (T-431) The CSE did not request that the student be evaluated. (T-433) She told the CSE that the student would continue at the private residential school. (Id.) She wrote on the placement offer she received that she did not accept the placement pending a new meeting and updated testing and evaluations of the student. (T-434) She did not receive a response from the CSE. (T-435)

The witness stated that she went she found a clinical who evaluated the student. (Id. & P-C) She sent his report to the CSE. (T-436) She then received a phone call telling her the evaluation was not sufficient. (Id.) The student‟s private residential school is the only one that deals with teenagers who have reactive disorder. (T-437) The private school also has a very good educational program that she liked. (T-438) The private school sent her a weekly report and she would talk to them (5) to (6) times per week. (T-439) She received a social call from the student twice a week. (Id.)

The student‟s private school classes have (8) students, three teachers, staff and a peer . (T-440) The student maintained a “ ” average at the private school. (Id.) She was better able to identify triggers, process information, was more vocal, improved her regulation, her management, her and did not herself. (T-441) The student‟s processing issues require “scaffolding.” (T-442) The CSE created an IEP dated July 9, 2010 where they deferred the student to a residential placement as the result of her evaluation by the CSE. (T-444 & P-H)

On cross examination, the witness testified that the student‟s previous private residential school did not deal well with her needs and did not have much supervision. (T-445-6) She did not visit the recommended DOE placement because it was not in session. (T-449) She FedEx‟ed the student‟s evaluation dated June 23, 2009, but she no proof of that. (T-457-8) The DOE found the evaluation‟s conclusion that the student was a flight risk inadequate. (T-459) The DOE wanted her to bring the student home to evaluate her. (Id.) The student came home in June of 2010. (Id.)

The witness stated that the DOE wanted an academic element to the evaluation, so she asked the educational director to prepare an evaluation of the student‟s educational progress dated February 9, 2009, which she submitted to the CSE. (T-460 & P-K) She does not recall a CSE meeting being scheduled for March of 2009. (T-461)

The witness stated that she agreed with the CSE‟s assessment that the student is a visual learner, needs directions broken down, is better at numeric equations and solving word problems. (T-464) The student was not receiving and at the private residential school. (T-464-5) She recalls a social history reports being prepared. (T-467) She never told the person who prepared the social history report, or the student, that she had to complete the private residential school program or she would not be allowed home. (T-468) When the private school feels that a student is therapeutically ready to go home, they are “graduated.” (Id.) Graduation at the private school is not associated with academics. (T-468-9) The student had been at the private school for (18) months and was approaching graduation. (T-469) However, she did not graduate because when she came home to be evaluated by the CSE, she disappeared. (Id.)

The witness stated that the student‟s home visits were supervised by her. (T-470) There were two home visits that were (2) or (3) days long. (T-470-1) She agreed with the CSE‟s classification of the student as “ disturbed.” (T-472) On re-direct testimony, the witness stated that she would have considered other residential placements. (T-474) She was responsible for making educational decision for the student until the student turned ( ) years old. (Id.) On re-cross examination, the witness stated that she never visited the recommended DOE school. (T-478) She was not aware that the DOE had recommended the student for a (12) months school year after the May 27, 2009 meeting. (Id.) The student did not herself while attending the private residential school. (T-479) During voir dire, the witness stated that the student was found and after

(4) or (5) months was convinced to return home where she is now. (T-480)

FINDINGS OF FACTS & DECISION

Two 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 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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See 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] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, 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 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. (See 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] and 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 impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 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." (See 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." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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." (See 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] and Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and 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.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 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]; 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; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and 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 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 education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09). Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087).

The DOE 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. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). 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. (See Burlington, 471 U.S. at 37071; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "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. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007). The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016).

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and 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. (See Carter, 510 U.S. at 14) The private school need not employ certified education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and 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….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 36465). 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." (See 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 specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89).

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 service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction 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. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 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." (See 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 tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See 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 [1st Cir. 2002]); SRO No. 07-133; 07

120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and 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"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, the IDEA provides that tuition 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, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; 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] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049).

Federal and State regulations mandate that each student with a disability be reevaluated at least once every three years. (See 34 C.F.R. § 300.303[b][2] and 8 NYCRR §

200.4[b][4]) The procedure for a reevaluation requires that a group that includes the CSE and other qualified professionals, as appropriate, conduct an initial review of the existing evaluation data including information provided by the student's parents, current classroombased assessments and observations, and observations by teachers and related service providers. (See 34 C.F.R. § 300.305[a][1] and 8 NYCRR 200.4[b][5][i]) Such review may take place without a meeting. (See 8 NYCRR 200.4[b][5][i]) Based on that review, and based on input from the student's parents, the CSE must then identify what additional information, if any, is needed to determine whether the student continues to have an educational disability, the student's present levels of performance, whether the student needs education services, or whether any additions or modifications to the education services are needed. (See 34 C.F.R. § 300.305[a][2] and 8 NYCRR 200.4[b][5][ii]) If additional data is needed, the school district shall administer tests and obtain other evaluation materials as may be needed to produce the needed data. (See 34 C.F.R. § 300.305[c] and 8 NYCRR 200.4[b][5][iii])

Here, at the May 27, 2009 IEP meeting, the CSE relied on information from a student‟s evaluation dated September of 2006, which referenced exams the student took in 2003. (T-91-5 & D-17) The CSE also used an Evaluation dated May 21, 2001 (D-9) and a Social History report dated April 11, 2002 (D-10). These evaluations were not completed within two years of the CSE meeting, in violation of federal and State regulations. (See 20 U.S.C. § 1414[a][2][A], 34 C.F.R. § 300.536[b] and 8 NYCRR 200.4[b][4]) The May 27th CSE team also had reports from the student‟s previous private residential school dated from 2007-2009. (T-76-9 & D-11, 12, 13, 14, 15, 16 & 17)

The DOE witnesses revealed numerous contradictions in the DOE‟s position. The DOE teacher stated that she concurred with the CSE recommendation of a class in a school, but also stated that the CSE team did not believe the student would benefit from being in a regular public school and that the student requires a “highly structured therapeutic school environment. (T-129, 88 & 130) She stated that the DOE did not have DOE Exhibits (18) through (23) at the meeting (T-114-5), but the school who was also the district representative at the meeting, said that they did have those documents. (T-154-8) The school also stated that there was nothing in the reports that indicated the student was a flight risk, and then later conceded that DOE Exhibit “14” (Therapy Report from Student‟s Previous Private School) indicates that there was an objective to stop the student from running away, and that he reviewed D-14 at the CSE meeting. (T-198-9) Finally, the DOE teacher stated that there was no discussion of placing the student at a residential placement (T-122), and then stated that the CSE could consider that recommendation because they did not have the documentation needed to send the case to the Central Based Support Team (“CBST”). (T137)

The 2006 Evaluation used by the CSE recommended a therapeutic boarding school for the student, which the CSE rejected. (Id. & 190) The DOE teacher testified that the student‟s reports indicated that she needs a well-structured therapeutic environment. (T-

162) The agency‟s assertion that a residential placement was not considered because the student was making progress, in light of the above, is not credible to the undersigned. (T-166) Additionally, the Parent credibly testified that she was told at the CSE meeting that if they recommended a private residential school, it would only be “kicked back to us.” (T-431)

The Assistant Principal of the proposed DOE school, testifying for the agency, stated that it was hard for him to know what class the student would be in without having met her and reviewed her transcripts. (T-224, 227, 229 & 246) There is no at the proposed DOE school. (T-251) Most importantly, he is not familiar with the student‟s diagnosis of “reactive disorders.” (T-259-60) Alternatively, the student‟s private school is the only school in the country that deals specifically with teenagers with “reactive disorder.” (T428 & 437)

The DOE‟s proposed school‟s flight risk measures are reactive, i.e., calling the Parent if the student is not in attendance or repeatedly caught in the hallways (T-242), as opposed to the student‟s private residential school where the students are supervised and not allowed to leave the campus without supervision. (T-341-2)

As stated above, an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs. (See 34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]) The clinical and most important reports used by the CSE in the case are outdated and do not comply with federal and state guidelines. (Supra) The testimony on behalf of the DOE is often contradictory and any the testimony concerning the specific placement offered is speculative. (Supra) Accordingly, I find that the DOE failed to offer the student a FAPE for the 2009-2010 school year.

I further find that the student‟s private residential school placement was appropriate. The student‟s private residential school is a therapeutic and structured environment, which is what the student‟s 2006 evaluation recommends and what the DOE agrees the student needs. (T-345-6, 137 & 130) The classrooms have a maximum of (12) student. (T-278 &

309) The student thereat receive group, individual and family therapy for approximately (6) hours per week. (T-358-64) therapy is offered for a minimum of three hours per week. (T-367) These services are consistently proscribed by for student by her evaluations and reports. (D-8, “recommended that [student name] continue in a longer-term therapeutic boarding school”, D-9, “select a quiet classroom if possible” and D-14, “need of continued therapeutic support in a setting that will meet her needs with the proper structure”) Moreover, the student has progressed at the private residential school, academically, in her with her mother and . (T-166, 301, 364 & 373-4) The student‟s private school program is “individualized” and her overall GPA is “ ” with “ ” credit hours received. (T-288-92)

To show that the student‟s unilateral private school placement is appropriate, the Parent need only demonstrate that the private residential school placement provides educational instruction designed to meet the unique needs of the student, supported by such services as are necessary to permit the student to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65) For the reasons stated above, I find that the student‟s private school placement is appropriate.

There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. The Parent attended the CSE meeting and gave the DOE access to the student‟s private school therapist and brought the student back to New York to be evaluated. (T-424-5 & 459) She also asked the private school to assess the student for the CSE and provided that assessment to the same. (T-427-8, 460 & P-K) She also gave the DOE notice of the student‟s private school placement. (T-421 & P-B-1) Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parent. For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that she has met her burden under Schaffer to prevail in her request for tuition reimbursement.

NOW therefore, it is hereby

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent for the cost of the student‟s tuition and related services at private residential school for the 2009-2010 school year. Dated: June 8, 2011

_________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED:jj

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

A Letter from parent to the CSE, N/A, 2 pp. B Letter from Parent to the CSE, 4-15-09, 1 p. C Evaluation, 6-23-09, 6 pp. D Affidavit, 9-27-09, 1 p. E Attendance Records, 2009-2010 School Years, N/A, 1 p. F Cancelled Check, 6-18-09, 1 p. G Tuition Contract, 8-10-08, 3 pp. H IEP, 7/9/10, 16 pp. I Treatment Plan, N/A, 3 pp. J Transcript, 8/12/10, 3 pp. K Academic Review, 2/9/09, 4 pp. L Policy and Procedure Manual, N/A, 11 pp. M Manual for Management, 10/12/12, 8 pp. N Academic Weekly Reports, N/A, 22 pp. O Monthly Treatment Summary, N/A, 22 pp.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 7/13/10, 1 pp. 2 Due Process Response, 7/20/10, 4 pp. 3 Individual Education Program, 5/27/09, 14 pp. 4 Notice of Committee on Education Review Meeting, 5/6/09, 1 p. 5 Notice of Meeting, 5/6/09, 1 p. 6 CSE Review Rationale, 5/27/09, 1 p. 7 Final Notice of Recommendation, 6/18/09, 1 p. 8 Report Evaluation, 9/7/06, 17 pp. 9 Audiologic Evaluation, 5/21/01, 5 pp. 10 Social History Report, 4/11/02, 5 pp. 11 Academy Social Studies Evaluation, 7/31/07, 1 p. 12 Academy Science Evaluation, 8/2/09, 1 p. 13 Academy Math Evaluation, 8/2/07, 1 p. 14 Academy Therapy Report Evaluation, 8/6/07, 6 pp. 15 Academy English Evaluation, 8/3/07, 2 pp. 16 Academic Transcript for 2006-2008, 5/19/09, 1 p. 17 Discharge and Progress Report, 7/21/08, 3 pp. 18 Progress Character Academic and Therapy, 7/4/08, 6 pp. 19 Academic Assessment, 5/21/09, 1 p. 20 University Independent Study, 5/21/09, 1 p. 21 Learning Styles Inventory, NA, 1 p. 22 Academic Class Schedule, 5/16/09, 4 pp.

23 Academic Class Schedule, .3/28/09, 4 pp.