Impartial Hearing Decision

The University of the State of New York i The State Education Department hme In the Matter of the Special Education Due Process Hearing on the Petition of BLANK by his Parents, BLANK and BLANK Petitioner Against E10. District Board of Education School District/Respondent The undersigned, James A. Mong a duly certified Impartial Hearing Officer (IHO), having been so designated by the State Education Department, and heretofore having been duly appointed by the Board of Education of thE schoo District (Respondent), pursuant to Chapter 853 of the Laws of New York (Section 4404 of the New York State Education Law) and in accordance with Section 200.5 (c), Regulations of the Commissioner of Education (Subchapter P, Part 200 - Children With Handicapping Conditions) , to conduct a due process hearing upon the petition of BLANK (Child) , by his parents, BLANK and BLANK (Parents/Petitioners). In accordance therewith, the undersigned, under date of July 1, 2011, notified the parents that such hearing was scheduled and would be conducted at 10:00 a.m. on July 28, 2011, at the Central Administration Building NLY. that the IHO would conduct the hearing in accordance with the regulations of the Commissioner of Education; that the parents may be represented by counsel or a person with special knowledge or training with respect to the problems of the Child or of special education and may be accompanied by other persons of the parents’ choice; that the district had the burden of proof with respect to the claims of the parents; that upon the hearing both sides would be given opportunity to be heard and present evidence and to confront and question all witnesses; and that each party had the right to prohibit the introduction of any evidence the substance of which had not been disclosed to the other party at least five days before being introduced. The matter was concluded on October 11, 2011 the Parents having appeared yti(i‘é‘éaiS and the District having appeared i : <<. and said proceedings having been stenographically transcribed, constituting a full written verbatim record of the proceedings; and exhibits, 131 in number, having been marked and received into evidence and made a part of the record herein; and the Child, BLANK, having not been in attendance at the hearing A written decision of the IHO is attached herewith. Hearing Officers Hearing Summary Case Number : XXXXXX Dates of Hearing: 7/28/11, 8/11/11, 8/25/11, 8/26/11, 9/8/11, 9/9/11, 9/13/11, 9/21/11, 9/22/11, and 10/11/11 Date of Decision: 11/21/11 Student's Name: BLANK Address: DELETED, Blank, N_Y. Most Recent Designation of Handicapping Condition Petitioners Name: BLANK and BLANK (for BLANK) Address: DELETED, Blank, N.Y. Respondent’s Name 001 District Board of Education Address: Central Administration Building as a

Issue/ Purpose of Hearing: To resolve the parents concern relative to mL broviding an appropriate placement and program for BLANK in the 2010-2011 and 2011-2012 school year. Committee for Special Education Recommendation: iE program at either th BO Both are residential programs Background Data In September, 2010 BLANK was scheduled to entefiiibrade as a student in the High School of EE ..0 District. Although he had received pe services during some of his fMorade year and ni race year, his success during nia grade in the High School led to his being declassified for special education purposes Rc :ace. BLANK resided with his parents and one student. He has a long history of unexplainable anti social behavior. While | io School District, Blank, NY. BLANK is an above average the school district placed BLANK on a split schedule between the High School and Middle School, never having assigned a student to this schedule with the assumption that he would be more challenged academically in a High School setting. However, with BLANK’s host of emotional, behavioral problems this seemed ill advised. n his community, he was generally BLANK proved to be extremely manipulative in that whil well behaved and did well in school academically. However, as soon as CF status was removed prematurely for good behavior, his oppositional defiant behavior surfaced once again.

BLANK had a tumultuous summer in 2010 and those problems escalated in the early part of September 2010. In that month, BLANK stopped coming to the high school. Eventually the District learned the Parents unilaterally enrolled BLANK in the BLANK program. The Parents had unilaterally determined what special education services were appropriate for BLANK. In September, 2010, the parents believed they had no choice and placed BLANK in a wilderness program at Blank (BLANK) 7 )|ClUMY BLANK’s placement at BLANK was initiated because of the “at serious risk” behavior he exhibited both at home and in school. While at BLANK BLANK was evaluated by Dr. Biank, a clinical neuropsychologist and diagnosed with P| Disorder with features off. That classification limited BLANK’s placement to a limited number of eligible appropriate placements. The parents called upon the District's Committee on Special Education (CSE) to find a residential placement for BLANK upon his departure from the parents’ selected wilderness program. The District's Director of Special Education il after discussions with the parents, concurred that BLANK needed a residential treatment center, and began looking into the State-required process of evaluating State-approved residential treatment centers. She informed the parents of her obligation to explore and present a list of State-approved schools which would meet BLANK's needs to the CSE. At the request of the parents) ooked into the placement of BLANK at Blank (BLANK) rT 6 and found it not to be an appropriate placement based on its not being on the state list of approved residential schools and she also had concerns after reviewing a state review committee’s report. The district readily accepted the report of Dr. Blank, a neuropsychologist at BLANK at its November 5, 2010 CSE meeting and based their reclassification decision to a large measure on that report's findings according ; | Be psychologist. The district was prepared as testified ye. place BLANK on home instruction with the necessary support services had he been released from BLANK and returned home before the CSE could determine an appropriate placement in November, 2010.

The CSE convened on November 5, 2011 TE a: prepared at the November 5, 2011 CSE with 14 State-approved, in-state schools which might be appropriate. The District informed the Parents that they were obligated to complete the interview and intake process at Be and School, the two schools on the State's approved list which were found to be appropriate by the CSE. As time passed from November, 2010 to May 2011, the district realized that the parents had committed emotionally and financially to a residential boarding school which was not only inconsistent with the recommendation of the psychologist who most recently evaluated BLANK, but was also a school the District could not legally recommend. (The Blank ("BLANK"). in BLANK, NY). The Parents argued that the placement at BLANK was necessary because the BLANK program was completed and BLANK needed to be placed immediately. The Parents did not advise the District before they withdrew their son from BLANK. The Parents did not inform the District that their personal hired educational consultant recommended BLANK and the time he recommended it. The Parents did not inform the District that they were going to interview with or enroll BLANK at BLANK. The Parents enrolled BLANK at BLANK and then, after he was placed, informed the District. The fact that no attempt was made to modify BLANK’s IEP goals from November, 2010 through May 25, 2011 is truly not acceptable to this IHO. Someone should have made the effort to determine what changes if any BLANK had undergone and make any necessary adjustments in his goals to reflect those changes. Disturbingly in response to that concern it was made clear by Dr. BLANK, Director of Admissions at BLANK that

IEP’s from home districts are not implemented for BLANK students, so that even had the district carried out its responsibility in this regard, the BLANK would not have acknowledged or implemented any change in the IEP anyway. The parents feel that ian withheld information about the ae: would have possibly resulted in the rejection of that school by the CSE. There was no proof that any such cover up was purposeful or knowingly carried out. In addition, what they claim to have been withheld did not constitute any substantive information that could be shown to have a causal effect on BLANK had he been placed there. The only reason the District was unable to finalize placement at mm ae is because of the Parents’ willful refusal to comply with the intake procedures. BLANK was classified as a student with iii by the CSE in May 25, 2011. The IEP generated on 5/25/11 stated, “The student requires a structured program in which behavioral expectations are clear and consistent across ail settings. Student needs to comply with adult directives and seek and accept help when necessary. Counseling support required to assist student with transition to high school and multiple demands of reintegration with grade-mates. The student has significant delays and requires a highly intensive, small teacher to student ratio program in a special school environment that can require 24 hour supervision in order to academically progress. The student requires intensive supervision to function in the educational setting. The student requires a great deal of behavior management strategies.”

In the 5/25/11 IEP five social/emotional/behavioral goals were established for BLANK for the 2011-2012 school year. No one present at the May, 2011 CSE objected to the goals established for BLANK at the meeting. From November, 2010 through May, 2011 nT 001 District explored 14 possible placements for BLANK and ruled out 12 of those placements for various reasons. The two schools remaining were visited by the parents and evaluated by the CSE. The CSE convened on May 25, 2011 and over the parent’s objections recommended both schools as appropriate for BLANK for the remainder of the 2010- 2011 school year and for the 2011-2012 school year. Legal References 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 (Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007). The amended statute took effect for impartial hearings commenced on or after October 14, 2007 (see Application of the Bd. of Educ., Appeal No. 08-016). In this instance the district first argued the appropriateness of their two selected programs and presented argument that BLANK was afforded a FAPE for both 2010-2011 and 2011-2012. The United States Supreme Court and the courts of the State of New York have long held that claims for reimbursement by parents who unilaterally place their child shall be analyzed under the following standard: A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a child 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. Sch. Comm. Of Burlington v. Dep't of Educ., 471 U.S. 359 (1985); Appeal of a Child with a Disability, Appeal No. 07-082). The law requires that a child’s IEP include “a statement of the special education and related services and supplementary aids and services, based upon peer-reviewed reseaBlankh to the extent practicable to be provided to the child”. 20 U.S.C. section 1414(d)(1)(A)(IV. The May, 2011 IEP conforms to this requirement. Under IDEA all children with special needs are entitled to a free and appropriate public education (FAPE) and it must include special education and related services which meet the needs of the student and they must be reasonably calculated to enable the child to receive educational benefits. Hendrick Hudson CSD v Rowley (20 USC s1400(d)(1)(A). The two schools recommended by the CSE for BLANK were shown clearly to meet these IDEA criteria. A FAPE has been defined as an education offered to a student when 1. A board of education complies with the procedural requirements set forth in the IDEA and 2. The IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. (again Rowley). In Waiczak v Florida UFSD,NY (142 F.3d 119- 1998 2" Cir) it was determined that the IDEA does not articulate any specific level of benefits that must be provided by an IEP. There is nothing in the record to dispute the district’s claims that either ae .:

If procedural violations are alleged as set forth in the IDEA an IHO may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child’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 child or (c) caused a deprivation of educational benefits. 20 U.S.C. s1415(f)(3)(E0(ii). Reference in this decision is also made to the Least Restrictive Environment. The students’ recommended program must also be provided in the least restrictive environment. 20 U.S.C. s 1412(a)(5)(A). The LRE is defined as “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled”. The parents make numerous allegations regarding program components lacking even if proved to be valid, these are not sufficient to establish that the District failed to provide a FAPE. As the SRO explained, "school districts are not required to ‘maximize’ the potential of students with disabilities." Application of the Bd. Of Educ., Appeal No. 10-079, supra. Accordingly, even if Little Flower and Hawthorne failed to provide these services, it would not be a bar to establishing that the District failed to provide a FAPE. In a similar case to the one before me, the SRO denied tuition reimbursement for the same improper conduct. In Application of a Child with a Disability, Appeal No. 05-075, the parents ignored multiple verbal and written notices from the school district that they had to take their son to an intake interview at BOCES LIV and instead enrolled their son in BLANK. Finding that the intake interview was essential and the child "could not be admitted into the program without an intake evaluation to determine whether the program was appropriate," the SRO held, "Parents have an obligation to reasonably cooperate with the district in finding an appropriate placement for their children and may not thwart the district's attempts to locate such a placement simply by refusing to make their son or daughter available for an intake interview.” In Application of a Child with a Disability, Appeal No. 06-025, the SRO again denied an application for tuition reimbursement, explaining: I find that there is sufficient evidence to find that petitioners acted unreasonably and impeded the placement process. Accordingly, | concur with the Impartial Hearing Officer. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320{a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320{a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018;11 Application of a Child with a Disability, Appeal No. 06-059. BLANK was provided an appropriate IEP from cr 0S School District and yet the school officials at BLANK indicated in response to a question “If a student came to you with an IEP (from their home district) would | be correct in understanding that BLANK would not implement it?” BLANK responded, “That's correct”. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). The IDEA ensures an "appropriate" education, “not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a schoo! district must provide "an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at *15). The [EP must be "reasonably calculated to provide some ‘meaningful’ benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i}], 300.116[a][2]; 8 NYCRR 200. 1[cc], 200.6[a][1]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 114 [2d Cir. 2008]; Findings of Fact: The hearing provided evidence of the completion of the CSE’s IEP for BLANK as prescribed by law for 2010-2011 on November 5, 2010. In that IEP there is clear indication of BLANK’s condition to date and his specific social/emotional/behavioral goals and objectives for the 2010-2011 school year. BLANK is ar old boy who has severe emotional and social issues. BLANK was diagnosed with i on BLANK. He is classified with an GR and has noticeable behavioral and social concerns. In 2010-2011 BLANK attended the Blank, a residential therapeutic setting for youngsters in BLANK, New York. He was placed there by his parents unilaterally. He presently attends the Blank for 2011-2012. The district did not complete an IEP for BLANK for the 2011-2012 school year assuming he would remain at the Blank and standing by its prior determination that :: EE 22 appropriate settings for BLANK. The parents object to that determination and also the CSE determination for 2010-2011. There is no dispute that all the required parties were present at all CSE meetings and that all procedural due process rights were afforded the parent. The fact of the matter is that the parents never objected to any procedural violations subsequent to the CSE meetings but chose to voice some objections as the hearing progressed. The record will show that the parents requested a hearing for the following reasons:

1. The parents are seeking tuition reimbursement for BLANK for a unilateral placement at the Blank for two school years, 2010-2011 and 2011-2012. 2. The parents feel that no definitive placement was ever suggested by the CSE for the 2011-2012 school year. 3. The parents’ placement of BLANK at the Blank for the 2010-2011 and 2011-2012 school years is an appropriate placement for BLANK. 4. The parents are entitled to reimbursement of enrollment fees, tuition, related services, and the cost of transportation. The District’s response to the complaint included: 1. The District did, in fact, offer BLANK a FAPE for 2010-2011 and 2011-2012. 2. The District and/or CSE complied with all procedures in carrying out of the Student’s IEP, including but not limited to contacting residential placements and following intake procedures. 3. Any alleged procedural inadequacies have not impeded the student’s right to a FAPE or the parents’ opportunity to participate in the decision making process regarding the FAPE. 4. The District's recommended special education placement is provided in the LRE. 5. From November 5, 2010 through to the present day the parents did not comply with intake procedures or student interview requirements regarding the CSE’s recommended residential placements . The district — me of Pupil Personnel Services, who played the principarrote in auermpung to find an appropriate placement for BLANK from November, 2010 through May, 2011. =stified that she clearly understood that the State Education Department would only consider BLANK an acceptable placement for BLANK after the district exhausted all state and out of state approved schools. Over the course of the 2010-2011 school = wo to believe that the parents would not consider any other placement for BLANK other than BLANK. PE cites under cross that the district did not conduct an annual review of BLANK at the end of the 2010-2011 school year, because she was certain that BLANK would continue at BLANK for the cori The second district witness attended the three CSE meetings for BLANK to determine his needs for 2010-2011 the LRE for BLANK in 2010-2011 was either the School. It must be not meetings in 2010-2011 took exception to any of the goals established for BLANK for the 2010-2011 school year. All felt that BLANK was being provided with the appropriate social/emoti ded to address his disabilities. Director of Counseling, testified that BLANK was grade year in the high school at the request of his parents vas confident that that no one at the three CSE placed part time during hi because they felt he needed to be challenged and the more difficult academic setting might motivate him to focus more on his academic skills. Assistant Superintendent for Instruction, was called as a witnessva tat he considered himself a friend of the parents in light of Mr. X’s role as BLANK. He indicated that BLANK’s father kept him informed of BLANK’s Status and that he I had attended a Section 504 meeting for BLANK at the request of the parents in December, 2008 also recalled discussing BLANK’s placement at BLANK after he was enrolled with the father. bean of Students, testified that she knew BLANK i yrade and attended the 11/5/10 CSE meeting. She recalled BLANK having been absent from school in September, 2010 and later learning that he had been placed at BLANK by his parents. testified that BLANK was a very capable student academically and seemed focused and on task throughout her time with him in the latter half of BLANK {ii grade year and all of righ rade year. LANK’s mother testified that BLANK’s problems became evident when he was | grade. He had numerous encounters with the local police department. BLANK was suspended numerous times from school for disruptive behavior. She summarized his behavior as seriously disrespectful of any authority figure. In August following hi rade schooling the parents sent BLANK to an outward bound program in re .. he felt it was a “waste of time’. HisfiMforade school year began with more than 20 behavior referrals for insubordination toward staff. In the second half LANK’ jrade, a split schedule was developed for BLANK whereby he attended grade classes in the middle school in the AM andi classes in the high in the PM. Early on in the implementation of this split schedule — rom a MS staff member and was banished from the MS. He managed to tatus was ended prematurely due to good behavior BLANK resorted to | ious confrontation with his parents involving At that point his parents placed him in the BLANK, Directoy of Admissions at BLANK testified that BLANK is considered a Boarding School. BLANK is staffed by 30 teachers a majority of whom are uncertified. BLANK has a clinical staff including a psychiatrist, psychologist, two counselors, and 2 social workers. They offer a NYS Regents Diploma and provide for students with emotional, social, behavioral, drug related, alcohol related, eating disorders, cutting disorders, depression and phobias among other problems. The 12 step program is used at BLANK, although BLANK has had difficulty admitting to his need for such a program. BLANK has ap roximately 115 students in grades 9-12, one third female, two thirds male. BLANK does not use IEPs. Ms. BLANK, BLANK’s BLANK Counselor, testified that BLANK does not yet admit that he is a drug or alcohol abuser so he really cannét embrace the 12 step program at the school. She is pleased with BLANK’s progress but feels he definitely is not finished with the program offered at BLANK. She communicates regularly with Dr. BLANK, the parents’ personal advisor, on BLANK’s progress monthly. Mr. xX, BLANK’s father, testified that BLANK is progressing well through the 18 month program at BLANK. He is involved with a rescue dog training effort and seems to enjoy this activity. The parents make visits to BLANK every 6 weeks and also attend family counseling while there. Mr. X feels that BLANK is the appropriate program for ‘ BLANK. Dr. BLANK, the parents’ independent educational advisor, testified that he had examined the CSE ‘recommended placements (| a... found them not to be right for BLANK. He stated that Little Flower “has had some difficulty with kids that are really acting out, aggressive youngsters, and, | mean, almost criminal types of behaviors, so that suggests the type of youngster, you know, quite challenging really very difficult. Assaultive behavior, things of that nature. Rising to the level of crime.” He felt on this basis BLANK was not a good fit there. However, he failed to acknowledge that BLANK had also exhibited many of these traits in his past. superintendent of Schools was called as a witness. He testified that he had a discussion with Mr. X in June, 2011 and offered a settlement to the parents in lieu of their dissatisfaction with the CSE’s recommended placements. The offer was rejected and details of that offer were not made known to the IHO. Impartial Hearing Officer's Decision in the Matter of the Appeal of BLANK and BLANK, p from the decision of th and program recommendations for the child, BLANK, in 2010-2011 and 2011-2012. This hearing officer was appointed by > fo of Education to this case on June 20, 2011. School District concerning the CSE placement The parents requested an impartial hearing on June 6, 2011, by letter to the school district. By mutual agreement among the parties a hearing was convened on July 28, 2011. The hearing was concluded on October 11, 2011. It is the decision of this hearing officer as follows: After careful review of the record before me I am issuing a final decision. The issues originally before me have remained constant. The dispute centered around the appropriate placement and program including related services for BLANK for two school years. Although they realized the urgency of an appropriate placement for BLANK as he left BLANK, in November, 2010, the parents did NOT act accordingly in the ensuing weeks by complying with the district's request to have BLANK attend intake interviews at The parents made the district aware of their decision to place BLANK at BLANK but never enabled BLANK to be considered for acceptance (iii schools from November, 2010 through May, 2011. Although the parents claim that had no choice but to send BLANK to BLANK or risk his emotional and physical health, they did not argue convincingly as to why they did not approve of BLANK’s placement ' schools for 2010- 2011. The fact that all three possible placements (BLANK, inn Pe had some disturbing incidents which had been documented in the past was not sufficient reason to reject any of those placements. BLANK was a deeply troubled youth who needed to be placed in a setting appropriate to handle his irrational and oppositionally defiant behavior. The Parents claim that “Burlington v DOE, 471 U.S. 359 (1985) applies because the two district proposed placements for 2010- 2011 were inappropriate and their unilateral placement of BLANK at BLANK was appropriate. Burlington allows for retroactive tuition reimbursement provided the district did not offer a FAPE for the previous year and the parents placement did offer FAPE. For the 2010-2011 school year the district offered a FAPE and conformed to all applicable laws and regulations in making a FAPE available to BLANK, however, the parents failure to make BLANK available for an intake interview to the two CSE recommended placements was all that prevented the final placement decision from being made by the CSE and the district. That is; had the intake interviews at P| Be taken place, then the parents unilateral placement might have been a logical step had those placements been determined inappropriate. Since the parents never provided the school district that opportunity they cannot succeed in their claim for 2010-2011 reimbursement. Having found that the district offered the student a FAPE, | need not decide the issue of whether the private educational services obtained by the parents were appropriate for the student and the necessary inquiry is at an end (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walezak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 05-038; Application of a Child with a Disability, Appeal No. 03- 058). The Regulations of the Commissioner state that reimbursement may be denied if: (a) “the parents did not inform the IEP team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child"; or (b) "10 business days prior to the removal of the child from the public school, the parents did not give written notice" to the District. 20 U.S.c. § 1412 (a)(10)(c)(iii)(I). The parents did not comply with either of these requirements

Assuming that the inconsistencies exist in the procedural actions of the district as Claimed by the parents, they do not result in a finding that the District did not offer a FAPE. In Application of a Child with a Disability, Appeal No. 03-088, the State Review Officer (SRO) explained, "procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE." /d, citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 (6 Cir. 2001). As set forth above, the District complied with the procedural requirements of the IDEA. To the extent any procedural inaccuracies exist, in my opinion they do not rise to the level of a denial of a FAPE. Therefore, the District provided Blank with a FAPE. The District has sustained its burden to demonstrate that it was fully prepared to provide a FAPE for the challenged school years. The IHO finds that the District had both the intention and the resouBlankes to offer BLANK a FAPE for the 2010-2011 and 2011-2012 school years. The IDEA requires all students with disabilities only be moved to a more restrictive school setting when “the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily”. 20 U.S.C. 1412(a)(5)(A). That action was necessary in this instance. The record will show ample proof of the need to address BLANKs marl deficits. It is the decision of this Hearing Officer that the as... District did, in fact, offer an appropriate program and placement for BLANK during the two years in question. The testimony from district witnesses was consistent in explaining the intentions of the district in addressing BLANK’s specific needs in each of the two years in contention. Even though the parents believed that did not offer an acceptable program and were not in a position to accommodate BLANK’s needs, the CSE recommended placements and programs to be offered BLANK each of the two years as described by district personnel were appropriate and, in all likelihood, would have benefited BLANK. After carefully reviewing the entire record, I have determined that the district's recommended program and placement for the 2010-2011 and 2011-2012 school years were reasonably calculated to confer educational benefit and thus, offered the student a FAPE itn the LRE, and further, that the parents are not entitled to reimbursement for the costs of the private school services obtained during those school years. My decision was guided by my intention to apply the proper legal standard _j BLANK was offered a FAPE in the LRE, including whether th School District complied with the procedural requirements in the and whether the recommended special education programs and services were reasonably calculated to confer educational benefit. I am also denying the parents’ request for reimbursement of the evaluation done by Dr. Blank, since the parents clearly did not comply with Commissioner's Regulations which state that “If the parent disagrees with the evaluation (of the district) the parent may obtain an independent educational evaluation at public expense in accordance with the section 200.3(g) of this Part and to the extent authorized by federal law and regulations. 8 NYCRR section 200.16(d)(3). The parents did not request an evaluation of the district and therefore had nothing to disagree with prior to requesting Dr. BLANK’s evaluation. PLEASE TAKE NOTICE: Within 40 days of the receipt of this decision, the parent and/or Board of Education has a right to obtain a review by the Commissioner of Education under Section 4401 of the Education Law and Public Law 94-142 by filing a petition of appeal to the Commissioner. A notice of intent to seek review must be served upon the Board of Education not less than 10 days before the petition is served and within 30 days after receipt of this decision. Failure to file the petition in a timely fashion will result in a waiver of the right to appeal this decision. This decision rendered November 21, 2011. YN NN pans \ dis \ Dr. James A“Monk