Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parents

Hearing Officer: William J. Wall, Esq.

PRELIMINARY MATTERS

This matter took several days to hear over several months. There were delays in the hearing that were unavoidable. All hearing dates were mutually agreed upon by counsel for the parties and the Hearing Officer. References to testimony will be made by transcript page number. If the date of the testimony is significant it will be included as well. During the course of the hearing certain witnesses were taken out of order to accommodate their schedules or the presence of one or the other party, if necessary. In the interest of structuring this decision in a manner that is straight forward and provides clarity to the parties, the testimony, if used, will be used in connection with the subject matter of the decision and not necessarily in the chronological order in which it was heard. The dates of the hearing were the following: 7/12/10, 8/6/10, 8/11/10, 8/18/10, 9/7/10, 9/13/10, 10/21/10, 10/28/10, 11/12/10, 11/16/10, 11/17/10 and 12/8/10. All Exhibits accepted into evidence are listed at the end of this decision.

INTRODUCTION

This case involves two requests by the parents for tuition reimbursement for unilaterally placing the student in a non-approved, non-public facility for during the 2009/2010 school year and a second request for for placement at the Summit School for the academic year 20010/2011.

THE DISTRICT’S POSITION

The District contends that these placements were not warranted as it had provided a Free Appropriate Public Education (FAPE) for each of those two years (2009/2010 and 2010/2011). The District contends that it met its burden to show that it offered FAPE by demonstrating that it developed an appropriate Individualized Educational Plan (IEP) for the student at a properly convened and staffed Committee on Special Education (CSE) review and offered him an appropriate placement where he would be able to make meaningful educational progress in each of the two years that are the subject of this decision.

Therefore the parents are not entitled to reimbursement of tuition and fees for the student’s placement at the non-approved non-public educational facility in 2009/2010 and the Summit School in 2010/2011 school. The District also contends that the independent examination was unnecessary and it should not be required to reimburse the parents for the cost of the examination.

THE PARENTS’ POSITION

The parents contend that the student has a number of learning disabilities, one of the more significant being . The parent believes that his disabilities eventually resulted in . The parents contend that the district focused on these issues without properly evaluating the which gave rise to the behavior. The student had serious difficulties in . The parents contend that the district failed to address this problem in any meaningful way. It became clear to the parents that the school district was not responding in what they believed to be an appropriate fashion to their son’s educational needs and therefore, with proper notice, unilaterally placed him in a improve his reading and then in the following year, in the .

Therefore they seek reimbursement of tuition and fees paid to and the. They also seek reimbursement for the .

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case is a Burlington/Carter case. Sch. Comm of the Town of Burlington v.

Dep’t of Educ. 471 U.S.359, 105 S. Ct. 1996, 85 L. Ed.2d 385 (1985); Florence County Sch. Dist IV v. Carter, 510 U.S. 7, 114 S. Ct. 361126 L. Ed. 2d. 284 (1993). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-

7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]).

The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). Application of a Child with a Disability.

02-055.

THE 2009/2010 SCHOOL YEAR

The subject matter of a Due Process hearing is confined to those matters raised in the request for the hearing. 8 NYCRR 200.5 j 1 (ii) reads in pertinent part

(ii) Subject matter of the impartial due process he aring. The party requesting the im partial due process hearing shall not be allo wed to ra ise issues at the impa rtial due proce ss hearing that were not raised in the notice filed under subdivi sion (i) of this section, unless the other party agrees otherwise.

There is no agreement on the record that the District agreed to have other matters raised at the hearing with respect to the 2009/2010 school year. The record does reflect that the District did agree to incorporate the disposition of the 2010/2011 request for into this hearing. Therefore, Exhibit A (The Due Process Request) is the basis for the issues to be decided by this hearing for the 2009/2010. In summary, the relief requested is a finding that the recommended placement for the school year was not reasonably calculated to provide meaningful educational benefit to the student; the unilateral placement of the student was justified and appropriate. Thus, they sought reimbursement for the . For this school year they also requested that the District send packets to other Districts and private schools to find an appropriate placement.

The District filed an Answer to the Due Process request (Exhibit 2) essentially denying the allegations of the parents and specifically stating the District has offered a free appropriate public education. At the beginning of the hearing the parents withdrew the request to have the District sent out packets because they had determined that the student would be attending school year and thus that issue was moot.

The issue of FAPE r emains an d in th is matter the parent contends that the placement provided by means of the , followed by IEPs of an d was not reasonably calculated to provide the student with FAPE.

The beginning of a FAPE is the IEP that is proc edurally and substantively correct. Certain flaws or failures on the par t of the Dis trict will no t invalidate the IEP provided those defects do not interfere with t he substantive rights of the parents or the education of the student. The pertinent regulation is 8 NYCRR 200.5. (4)(ii)

(ii) Procedural issues. 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 the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits.

Nothing in this paragraph shall be constr ued to preclude an impartial hearing officer from ordering a school district to comply with procedural requi rements under this Part and Part 201 of this Title.

The Regulations also specify that the assessments undertaken in connection a reevaluation must be sufficiently comprehensive to identify all of the education needs of the student whether or not linked to the specific disability. There was an IEP meeting held on The information available to the members of the CSE was identified by various witnesses. it was also listed in the IEP at page . There was no disagreement about the documents available to the committee for the review. Those documents along with the testimony from various witnesses, including school personnel and the parents. made it clear that has had emotional and educational difficulties since kindergarten. There was also no disagreement that ’s issues became more and more complex and severe as the years passed. For purposes of this hearing, the student’s educational and emotional status must be considered as it existed at the beginning of the r. began the year enrolled in the collaborative class. He had an IEP in place since the start of the year. It was dated ) and was in force until the was accepted by the parents. The and the content of the reports used in the development of the the IEP were not in issue at this hearing. The IEP serves as the baseline for the events that followed.

The section entitled s identifies with and . In the Classification and Placement Section he is classified as and is recommended for a placement in the

l. The Recommended Special Education Programs and Services provide for a program in a teaching placement in a regular class for all collaborative class.

As related services he is to have an and once a week for in a 5 pupils to 1 setting once a week .

There are various program modifications and accommodations listed on the IEP. In the Other Options Considered section

The next section of the IEP deals with Annual Goals. The exhibit is in evidence and so I will only refer to those that are relevant to this decision. The goals in the IEP are not specific as required by 34 CFR § 300.320(a)(2)

(2) (i) A statement of measurable annual goals, including academic and functional goals designed to — (A) Meet the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum; and (B) Meet each of the child's other educational needs that result from the child's disability; The goal states will increase his skills”. The evaluation criteria statesweeks. Nothing in the IEP states what the 100 % of the 75% is. The following two reading goals dealing with ability and increasing suffer from the same impossibility of measurement. In fact all of the goals had that same type of notation and that was the only indication of any measurement criteria for the goals. There were no specific objectives directly connected to the stated goals.

Special Education teacher was not able to clearly explain what the 75 % success referred to. (trans.pp. 858ff) She was clear that the CSE did have testing indicating and that he was seriously behind his class in his ability to. The special ed teacher also testified that writing was below the first percentile when she tested him in the fall of 2009. (Trans. p. 877).

In addition to the academic issues, had problems that appeared to escalate and they were also interfering with his educational progress. A Behavioral Intervention Plan (Ex. 12) was developed for him after a Functional Behavioral Assessment was completed. I do find that the Assessment and Plan as developed were appropriate and designed to provide help to with respect to the l issues that were part of his inability to make meaningful progress in his educational career. The timing of the development and implementation of that plan will be discussed later in this decision. The Evaluation

Before addressing the facts and law that govern the selection and implementation of various programs intended to provide a meaningful educational experience for P, it is important to review the performed by , Ph.D., ABPP, conducted on the dates of Ex. 28). I will address testimony at the hearing after a review of the report. There is no dispute that the report was delivered to the District and available before the commencement of the CSE review on . It appears in the IEP as the , in the Comments section of the IEP on page 5. (ex. 8)

The report begins with a brief statement of how and why was referred to him and by whom. isyoungster , currently referred for an evaluation by Dr. . Dr. is a, specializing ins who has been treatingfor the past 2 1/2 years. There have been concerns with since he was in preschool. Currently he is diagnosed with . He has also been diagnosed with He reviewed the various medications that have been administered to over the years. He then reported that the parents reported seems bright ... but his academic progress has been poor.(p. 2). He identified He also noted the family history noting that he was seen on his at the time. His evaluation continued with the reports on v . It was confirmed among other things that his overall IQ was which falls in the range. The report speaks for itself and I refer interested parties to it for the specific details. His conclusions with respect to s finding are detailed on pages 6 & 7 of his report. He summarized his findings in the following sentences.”

s clinical diagnosis is found in then recommends an alternative program. He recommends a program geared to children with constellation of difficulties in terms of learning and behavior. He also recommends more accommodations in school until such a program

The Legal Issues

Whether or not the District implemented recommendations is not the legal issue. The legal issue focuses around the appropriateness and adequacy of the and the program implemented to provide the student with FAPE

IDEA and the federal and state regulations are silent on the obligations of the CSE to include specific special placements or programs. The applicable federal law that determines what must be included in an IEP states in pertinent part at 20 U.S.C. § 1414 (d)(1)(A)(i)(IV)

(IV) a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child —

(aa) to advance appropriately toward attaining the annual goals;

(bb) to be involved in and make progress in the general education curriculum in accordance with subclause (I) and to participate in extracurricular and other nonacademic activities; and

(cc) to be educated and participate with other children with disabilities and nondisabled children in the activities described in this subparagraph;

The federal and state regulations simply reiterate that section of the law. The state regulation is found at 200.4(a)(v)(a);

(a) The IEP shall indicate the recommended special education program and services as defined in section 200.1(qq) and 200.1(ww) of this Part from the options set forth in section 200.6 of this Part or, for preschool students from those options set forth in section 200.16(i) of this Part, and the supplementary aids and services as defined in section 200.1(bbb) of this Part that will be provided for the student: (ww) reads in pertinent part:

(ww) Special education means specially designed individualized or group instruction or special services or programs, as defined in subdivision 2 of section 4401 of the Education Law, and special transportation, provided at no cost to the parent, to meet the unique needs of students with disab ilities.

(1) Such instruction includes but is not limited to that conducted in classrooms, homes, hospitals, institutions and in other settings.

(2) Such instruction includes specially designed instruction in physical education, including adapted physical education.

(3) For purposes of this definition:

(i) The individual needs of a student shall be determined by a committee on special education in accordance with the provisions of section 200.4 of this Part upon consideration of the present levels of performance and expected learning outcomes of the student. Such indiv idual-need determinations shall provide the basis for written annual goals, direction for the provision of appropriate educational programs and services and development of an individualized education program for the student.

None of the referenced sections mandate specific special education programs, only that such programs be created and made available to classified students in an appropriate manner. Thus, there is no legal obligation on the part of the district to provide specific special reading instruction to the student as long as the IEP identifies the needs of the student and provides specific goals and measurable objectives to address the disability, along with appropriate educational programs and services.

However, that is not the end of the inquiry as to the adequacy of the IEP and the appropriateness of the district’s program to address the educational deficits of the student.

Various courts have articulated the obligations of school districts under IDEA. A comprehensive statement is found in Walczak. WALCZAK v. FLORIDA UNION FREE SCHOOL DISTRICT, 142 F.3d 119 (2nd Cir. 1998) at p.130.

[75] IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP. The

Supreme Court, however, has specifically rejected the contention that the "`appropriate' education" mandated by IDEA requires states to "maximize the potential of handicapped children." 458 U.S. at 196 n. 21, 189. The purpose of the Act was "more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside." Id. at 192; accord Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 (D.C. Cir. 1984)

(Ruth Bader Ginsburg, J.) (because public "resources are not infinite," federal law "does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child"). Plainly, however, the door of public education must be opened for a disabled child in a "meaningful" way. Board of Educ. v. Rowley, 458 U.S. at 192. This is not done if an IEP affords only "trivial" educational benefits. Mrs. B. v. Milford Bd. of Educ., 103 F.3d at 1121 (quoting Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 183 (3d Cir. 1988). An appropriate public education under IDEA is one that is "likely to produce progress, not regression." Cypress-Fairbanks Indep. Sch.

Dist. v. Michael F., 118 F.3d 245, 248 (3d Cir. 1997) (internal citation omitted), cert. denied, 118 S.Ct. 690 (1998).

The court then went on to discuss the nature of an independent review that does not meddle in state educational methodology. Within that discussion it states what it considers to be objective evidence in determining whether or not the District has met it obligation to provide “meaningful educational opportunity”.

[78] To conduct an IEP review that was "independent" without "impermissibly meddling in state educational methodology," Mrs.

B. v. Milford Bd. of Educ., 103 F.3d at 1121 (citing Board of Educ. v. Rowley, 458 U.S. at 203, 207,)] For judicial review of the IEP challenged in this case [to be both "independent" and "deferential," the district court was required to examine the administrative record, as well as any new submissions by the parties, with particular attention to [examine the record before it with particular attention to any "objective evidence" of whether B.W. would progress or regress if educated in a day program, id.] whether a preponderance of the objective evidence indicates that B.W. has made progress or regressed in the BOCES day program. This focus derives from the distinction drawn by the Supreme Court between a federal court's proper examination of "objective evidence of progress" and its "impermissible meddling in state educational methodology." Mrs. B. v. Milford Bd. of Educ ., 103 F.3d at 1121 (citing Board of Educ. v. Rowley, 458 U.S. at 203, 207). A review of objective evidence is easiest, of course, when a disabled child is in a mainstream class. In such circumstances, the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress. See Board of Educ. v. Rowley, 458 U.S.

at 207 n. 28 (deaf student's ability to perform better than average child in class and her easy advancement from grade to grade indicated that she was receiving an appropriate education despite School District's failure to provide her with a sign language interpreter). Nevertheless, this court has looked to test scores and similar objective criteria even in cases where a disabled child has been educated in self-contained special education classes. See Mrs. B. v. Milford Bd. of Educ., 103 F.3d at 1121. In such circumstances, the record must, of course, "be viewed in light of the limitations imposed by the child's disab ility." Id.

While this standard is articulated with respect to a court’s review of administrative decisions, it is very similar to the standard set forth for an Impartial Hearing Officer in 8 NYCRR 200.5. Due process procedures.

(v) … The decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination. The decision shall reference the hearing record to support the findings of fact. The impartial hearing officer shall attach to the decision a list identifying each exhibit admitted into evidence. Such list shall identify each exhibit by date, number of pages and exhibit number or letter. In addition, the decision shall include an identification of all other items the impartial hearing officer has entered into the record. The decision shall also include a statement advising the parents and the board of education of the right of any party involved in the hearing to obtain a review of such a decision by the State review officer in accordance with subdivision (k) of this section. The decision of the impartial hearing officer shall be binding upon both parties unless appealed to the State review officer.

Guided by the case law and regulations, I now turn to the evidence that indicates whether or not the student received a program that provided him with a reasonable educational opportunity during the . I have already concluded that the goals established in the were not and therefore that IEP violated IDEA. The next IEP developed during th school year is exhibit. It is dated . In this IEP a Plan was added. There are minor changes in the Levels/Abilities section of the. These ch anges do not reflect any significant progress in educational progress since the,,,, Additional test scores were included from an evaluation done in Those test scores confirm difficulties. Since the testing was done in it is not reasonable to expect great progress from the scores reported in the IEP.

Certain new goals were included in the IEP. The include having arrive on time for class, the use of a computer as a compensatory learning strategy and various new reading and writing goals. The first new reading goal states: “here were additional reading goals that dealt with material. There was testimony that these goals were intended to be implemented with the assistant of teaching assistant who would be reading all or practically all of the material to to meet this goal. The writing goals added to the IEP were also to be implemented with a significant amount of assistance from the teaching assistant. It was never clear how these goals would improve skills. Again, the goals lacked clear standards to measure achievement.

I have already determined that the IEP’s are not only procedurally defective but substantially defective when they failed to provide any specific measurable goals for the student. Proving a mere percentage without stating the actual subject matter to which that percentage is to be applied is a logical fallacy that impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, and caused a deprivation of educational benefits.

Even if I were to view the percentage problem as procedural, there is not enough evidence for me to conclude that the student was making meaningful educational progress in Exhibit is an analysis of reading progress.

The director of curriculum instruction and assessments testified that made reading progress. She did not quantify that progress. “I come to the conclusion that P has made progress in his reading over the course of this school year” (Tr. p. 157 ff.) Exhibit 11, a report from the specialist does quantify that progress. it confirms the information found in Ex.34 I do not find that is meaningful reading progress for a student of average intelligence. A student of average intelligence who is in the grade when starting the year reading on a first grade level and moves up only one grade in the year has not made meaningful educational progress. There was no meaningful remediation of ability during the school year. Without being able to significantly improve his skills he is not going to make meaningful progress in his education. The third and last IEP of the year (Ex. 5) changed the goals to reflect the use of grade material instead of grade material. Testimony indicated that this change was made with the expectation that would read the material without significant input from the teacher assistant.

However, by the time the IEP was developed the parents were convinced that was not making any meaningful educational progress in . As a result his and other behavioral problems were also escalating to the point that the District was recommending s. The parents took unilateral action and placed the student in a r individual instruction. The parents gave the District notice on (Ex.41)He began at (Tr. p.963). The record reflects they also requested that he be allowed to attend half time and attend the middle school half time. The District refused to agree to that arrangement. So eventually, the parents took him out of school set up a home schooling program to go along with the reading instruction from and that is how finished the school year. Therefore I conclude that the district did not provide FAPE to P for the school year.

The next step in the analysis is prong 2 which requires that the parent chosen placement is appropriate for the student to make educational progress. The district argues that is not a school but is a tutorial facility and therefore not an appropriate place for the student. The argument is without merit. The State Review Office has long recognized that remedial facilities are appropriate placement for student with specific difficulties provided there is a plan in place to return the student to a formal educational setting whether it be home schooling or another licensed school. (Application of the BOARD OF EDUCATION OF THE MASSAPEQUA UNION FREE SCHOOL DISTRICT, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability) (05-009) Application of the Board of Education of the Shelter Island Union Free School District for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability 03-103 The parents did set up a home school program for the student for the remainder of the year. The quality of that program is not an issue in this hearing as the program was set up and the record reflects that the parents made real efforts to comply with the report requirements of the home school provisions of the education law. Testimony and Testing from the representative of made it clear that once enrolled, make meaningful educational progress and his ability significantly improved. His parents confirmed that reading had significantly improved.

One or both of the parents did attend all CSE meetings, they made the student available for evaluations and testing and cooperated with the school in the school’s effort to dealing with increasingly difficult educational experience. For the the equities do favor the parents. Therefore, I conclude that the parents are entitled to reimbursement for the testing fees, registration fees and tuition at the for the 2009/2010. They are to be reimbursed upon presentation of proper documentation of payment to the District. Reimbursement for the

The request for reimbursement of the hological Evaluation o dated 8/26, 8/27,and is denied. The applicable regulation is 8 NYCRR 200.5 (g). It reads in pertinent part: (g) Independent educational evaluations. (1) Requests by parents. If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. A parent is entitled to only one independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees.

(iv) If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.

(v) If the school district files a due process complaint notice to request an impartial hearing and the final decision is that the school district's evaluation is appropriate, or that the evaluation obtained by the parent did not meet school district criteria, the parent has the right to an independent educational evaluation, but not at public expense.

The regulations clearly state that for the parent to be entitled to an independent educational evaluation they must disagree with an evaluation obtained by the school district. Throughout the hearing there was no testimony or evidence introduced that any such disagreement was articulated or that there was any communication by the parents to the district expressing dissatisfaction with any specific evaluation undertaken by the district. The State Review Office has consistently held that there must be expressed disagreement before the parents are entitled to an evaluation at public expense. “Here, petitioners obtained an independent evaluation without notifying the district of their disagreement with its educational evaluation of the student. Therefore, petitioners are not entitled to reimbursement for this privately obtained evaluation.” Application of a

CHILD WITH A DISABILITY, No. 03-021

Because there was no explicit disagreement with any educational evaluation, under the regulations of the Commissioner of Education, supported by State Review Officer decisions The request for reimbursement of the Independent Psychoeducational Evaluation does not qualify for reimbursement.

The SCHOOL YEAR

All of the Burlington Carter references cited above also apply to this aspect of the hearing. The issue in this part of the case is more straight forward in that the parents have unilatterly elected to place in the for the academic year and seek tuition reimbursement. The District contends it offered FAPE for that school year and thus has no obligation to reimburse the parents for their school choice.

The same three prongs that I appied to the school year apply to this part of the hearing. They are:

1. Did the district provide FAPE?

2. If so, that is the end of the inquiry and the distirct is not obligated to pay tuition. If the district did not provide FAPE we must inquire as to the appropriateness of the parent chosen school to provide a meaningful education experience.

3. Who do the equities of the placement process favor, the parent of the District? For the parent to prevail, all three criteria must be reviewed and it must be determined that the District failed to provide FAPE, the chosen school is appropriate and the equities favor the parent. Prong 1

As stated above, the beginning of FAPE is an IEP that is procedurally provides a meaningful educational opportunity for the student. Ex. W, the 5/25/10 IEP was developed for the school year. It is very similar to the earlier IEP’s developed in 2010 for this student while he was in middle school. It basically provides for . The could be as many as 14 or 15 additional students with a general education background in the same class. The same accommodations are granted and the same comments are made about his academic levels and social interactions. The goals are more specific in this IEP but is still working on and asked to write one paragraph for a writing goal. The Evaluation criteria for all the goals remain a percentage of some unstated norm with certain tasks to be completed in 2-3 weeks. The goals and the evaluations are substantively defective and on this basis alone there is no provision of FAPE for this student. There is no question that the teachers and psychologist in the middle school worked hard to provide meaningful educational opportunity but the record does reflect that in crucial areas of education such as, no meaningful progress was made despite those efforts. Based on the IEPs developed and implemented fordoes not offer a meaningful educational opportunity for P. Therefore FAPE has not been offered for the school year. Prong 2 The burden to establish the Summit School s an appropriate placement rests with the parent. The standard by which a private placement is determined to be appropriate is found in Frank G. v. Board of Educ. Of Hyde Park, 459 F. 3d 356 (2nd Cir. 2006). In an extensive discussion of the requirements necessary to establish the appropriateness of the private placement the court stated.

Parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate, even if the proposal in the IEP is inappropriate. M.S., 231 F.3d at 104. Nevertheless, parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education. See 20 U.S.C.§1401

(9). An appropriate private placement need not meet state education standards or requirements. Carter, 510 U.S. at 14, 114 S.Ct. 361. For example, a private placement need not provide certified special education teachers or an IEP for the disabled student. Id. In addition, parents "may not be subject to the same mainstreaming requirements as a school board." M.S.,231 F.3d at 105 (citing Warren

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

Subject to the foregoing exceptions, the same considerations and criteria that apply in determining whether the School District's placement is appropriate should be considered in determining the appropriateness of the parents' placement. Ultimately, the issue turns on whether a placement — public or private — is "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d

690 (1982); Muller ex rel. Muller v. Comm. on Special Educ., 145 F.3d 95, 105 (2d Cir. 1998). While the IDEA does not require states to "maximize the potential of handicapped children," Rowley, 458 U.S. at 213, 102 S.Ct. 3034, it must provide such children with "meaningful access" to education, Walczak,142 F.3d at 133. With these goals in mind, we have held that for an IEP to be reasonably calculated to enable a child to receive an educational benefit, it must be "likely to produce progress, not regression." Id. At 130 (quoting

Cypress-Fairbanks Indep. Sch. Dist. v. Michael F.,118 F.3d 245, 248 (5th Cir.

1997)). Courts must, therefore, "examine the record for any ‘objective evidence' indicating whether the child was likely to make progress or regress under the proposed plan." Id. (quoting Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997).

Thus, "in the regular classrooms of a public school system, the achievement of passing marks and regular advancement from grade to grade will be one important factor in determining educational benefit." Rowley, 458 U.S. at 207 n.

28, 102 S.Ct. 3034; see also Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 (2d Cir. 2003) (noting that "[p]assing grades are . . . often indicative of educational benefit"). Although it is more difficult to assess the significance of grades and regular advancement outside the context of regular public classrooms, these factors can still be helpful in determining the appropriateness of an alternative educational placement. See Walczak, 142 F.3d at 130.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207, 102 S.Ct. 3034. 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. See Page 365

Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir. 2001)

(holding that a unilateral private placement was appropriate where, inter alia, class sizes were small, the student made significant educational progress, and his grades and behavior improved significantly). 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. See M.S., 231 F.3d at 105

("The test for parents' private placement is not perfection.") (internal quotation marks omitted). They need only demonstrate that the placement provides "educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction." Rowley, 458 U.S. at 188-89, 102 S.Ct. 3034 (internal quotation marks omitted). Frank G.

v. Board of Educ. Of Hyde Park, 459 F. 3d 356,364,365 (2nd Cir. 2006)

With this relatively recent articulation of the law we can now turn to the facts of the placement of the student to determine if the placement was appropriate. The School is a state-approved non-public school for handicapped children. The testimony of the with respect to the type of student that attends is found in the transcript at p, 1278 and ff. s aray of positives and negatives meets the criteria for accpetance without question. has small classes with no more than twelve students in total in any one class. In some classes there are five or seven students. The director’s testimony was candid abou progress an certainly has much to make up but he was very clear that is good fit both academically and socially has not demonstrated any negative behaviors (Tr. p.1304) that she had observed and he is making progress to the extent that he has become more comfortable and more involved in the lessons from the time he started at the school (Tr. p.1342ff). While there is no separate he participates in a school wide program that provides indiviidual rewards for accomplishments and other mtiviational tools that are gears to the individual students. The reading teacher testified to difficulties and the efforts that have been employed to overcome his deficits. His teacher is well qualified and experienced and P appears to be making progress according to her testimony. One issue that the District has focused on is that the does used a multisensory reading program such as Wilson. That was a recommendation of. when he evaluated him in . has already been through and is now engaged in a reading program that has apparently been successful with several students with deficits and from the teacher’s testimony I would expect it will be successful with him. I find the is an appropriate placement where can be provided "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." Rowley. Prong 3

Prong 3 requires that the parents participate in IEP meetings and make the student available for evaluations during the course of his instruction. one parent or the other or both attended every IEP in evidence. It would appear they cooperated fully with the evaluation and placement process. I note the admissions process for the began in January and the contract was signed in early May. This was certainly prior to the EP which made the final recommendations for for the coming school year. The District argues that this a clear indication that they were determined to send the student to no matter what the outcome of the May IEP. The parent however, testified that they were very aware of the limited placement opportunities for a student with difficulties in the New York metorpolitan area and thus felt it only prudent to begin the proces in January in order to find and protect a placement for if it were to become necessary. They were still open to the District’s placement if they found it to be apporpriate for their son. I take judicial notice of the limited amount of seats available for students with disabilities in this area and almost every parent confronted with the possible need for a non-public school begins the process in January or sooner. It should also be noted that refunds the deposit if a parent accpets a public placement offered by a school district. The argument is without merit. The Parent have met the requirements of prong 3 with respect to the need to cooperate with the District.

ORDER

As I found that the District failed to provide FAPE to the student for both the school year and the school year the following is SO ORDERED

1. The parents are to be reimbursed for the costs and tuition associated with the rogram that the student attended in the Spring of The parents are to be reimbursed for the costs and tuition for l for the yearBoth reimbursements are to be made upon presentation of appropriate documentation that payment was made

2. The is denied for the reasons stated in the body of the decision.

3. Reasonable transportation costs for the student’s participation at the school are to be reimbursed. No reimbursement is granted for the program as it is not a school. _________ ___________________ William J. Wall Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parents and/or the School District 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 forms can be found on the Office of State Review website: http://www.sro.nysed.gov/part279home.html.