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Special Education Law
DECISIONParent PrevailedSEL No. 2012-ih-251

New York City Department of Education, Impartial Hearing Decision

March 2, 2012·Jeffrey J. Schiro·Hearing Requested by: Parent

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: October 13, 2011

November 21, 2011 Actual Record Close Date: February 17, 2012 Hearing Officer: Jeffrey Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 13, 2011

Attorney — Student

Parents

Parents

District Representative-CSE — DOE

Teacher- (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21, 2011

Attorney — Student

Parents

Parents

(via telephone) — Student

District Representative-CSE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 27, 2012

Attorney — Student

Parents

Parents

Site Director- (via telephone) — Student

Teacher- (via telephone) — Student

- (via telephone) — Student

District Representative-CSE — DOE

I. PROCEDURAL HISTORY

This hearing was requested on July 15, 2011 by counsel for the student and the parents pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401, et. seq. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to pay costs associated with the student’s placement at the ,a school, for the 2011/12 school year (Ex. P-A).[1] I was appointed by the DOE to hear this matter on July 20, 2011. In a letter dated August 3, 2011, I advised the parties of their rights and obligations under the New York Education Law and the Regulations of the Commissioner of Education of the State of New York (Ex. IHO-I). A pre-hearing conference was held on August 24, 2011 with the parties to clarify the issues and select dates for the hearing (Exs. IHO-I at 2, IHO-II). See 8 NYCRR § 200.5(j)(3)(xi). Thereafter, hearings in this matter were held on: October 13, 2011, November 21, 2011 and January 27, 2012.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

II. FACTUAL BACKGROUND

At the time of the hearing request, the student was ( ) years old and attending a day program at the ( ) campus of the Exs. P-A at I-22).3 The student’s eligibility for special education and related services as a student with is not in dispute in this hearing (Exs. SD-6 at 21, P-A at 2, P-B at 1-4, P-I at 5). See 34 C.F.R. § 300.8©(1); 8 nycrr 200.1(ZZ)(1).4

The student was diagnosed at the age of ( ) with - Not Otherwise Specified (“ ”) by Dr. ,a , and began receiving services through Early Intervention Services in , and later, through the Committee on Preschool Education (Exs. P-A at 2, P-I at 1).

When the student turned ( ) years old, the DOE’s Committee on Special Education (the “CSE”) recommended that the student receive instruction in an special class for in a school. Following a private evaluation, the student began receiving Applied Behavioral Analysis (“ABA”) services at home from the of , which continued for next two and a half years. The CSE also changed the student’s placement to a District special class at (in Staten Island), where the student remained through June of 2011 (Ex. P-A at 2).

In October of 2007, the parents reported an acute onset of and in the student. Aspects of were noted in his school performance. There was an onset of and . Evaluations in November 2007, by child and , Dr. indicated (“ ”), in which was but soon due to . Weeks later, the student was becoming more and was seen by , Dr. . During this course of treatment, was suggested and was to and . In January of 2008, a was treated with and the student’s seemed to significantly diminish. The student was first known to the Study Center in February, 2008, when evaluated by child and , Dr. for evaluation of Associated with (“ ”). After extensive comprehensive evaluation, Dr. concluded the student met the criteria for (Exs. P-A at P-I at 2).

During the 2010/11 school year, the student attended Mr special class at . Mr. reported that the student was not , but seemed to be than what was revealed through assessments or demonstrations. The student’s his in that setting. The student in the classroom, such as and , and the room. The student displayed daily and tended to be . The student always from Mr. and a (Ex. P-I at 1.

The student could about and some . He tended to at a and did better with . There were times when he could to himself and to in ; however the student liked to . Although the student had always been a student with more limited ability, at the middle of the 2010/11 school year, he was to with students in a more group. The student was exposed to work at a grade level and had more peer models (Ex. P-I at 1-2).

As part of a evaluation of the student in December 2010 and January 2011, Dr. measured the student’s using the of Ability. On this assessment the student demonstrated a of (standard score , percentile). While this score was distinctly than one obtained during a 2009 evaluation (i.e., TONI-3, score , percentile, range), it supported the position that the student’s his (Ex. P-I at 5).

Academically, despite his with , Dr. observed strengths in the student’s capacity to . The student’s , however, made it for the student to . As for , the student could be , was when doing so and his were , but his of impaired his ability to put (Ex. P-I at 5-6).

Dr. confirmed the student’s , and . She recommended that the student receive daily academic tutoring, and . She also recommended that the student be educated in a small setting that incorporates and into its instruction (Exs. P-A at 2, P-I at 6-8).

In or around January of 2011, the parents were informed by school officials of two (2) possible placement options for the fall: and - School. In a letter dated February 27, 2011 to , Principal , the parents informed Mr. that they were both schools following their site visits to the proposed programs (Exs. P-A at 3, P-C). In a letter dated March 7, 2011, Mr. invited the parents to meet with him and Dr. , the principal of the , to discuss their concerns (Ex. P-E).

On or about March 10, 2011, the parents shared with Mr. a copy of Dr. Evaluation (Ex. P-D).

Following a March 15, 2011 meeting with Mr. and Dr. , the parents wrote to Mr. of District on March 16, 2011 to request other placement options. If such options were not offered, the parents advised Mr. of their intent to make a unilateral placement of the student at public expense for the 2011/12 school year (Exs. P-A at 3, P-F). The parents wrote a similar letter to Ms. of District on March 24, 2011 (Exs. P-A at 3, P-G).

On April 29, 2011, the parents advised the CSE of their intent to make a unilateral placement of the student at the at public expense for the 2011/12 school year (Exs. P-A at 3, P-H).

At a meeting held on June 3, 2011, the CSE recommended for the 2011/12 school year that the student receive the majority of his instruction in an special class in a specialized school. The CSE also recommended that the student receive the related services of individual and group , individual and . The CSE determined that the student did not need strategies, including or a behavior intervention plan, to address that the student’s or that of other students. The CSE did not recommend any transition services for the student (Exs. SD-6 at 3, 16, 18-19, 21-22, P-A at 3-4, P-B at 3, 16-18). A “finalized” copy of the IEP was later provided to the parents on or about July 6, 2011 (Ex. P-P).

On June 6, 2011, the parents requested another CSE meeting. Given the absence of a from the CSE’s June 3rd meeting, Dr. evaluation had not been reviewed by the committee. The parents also wanted the CSE to consider adding a paraprofessional to the student’s IEP based on the findings and recommendations made Dr. in her evaluation (Ex. P-Q).

In a letter to Ms. dated June 16, 2011, the parents reiterated their intent to make a unilateral placement of the student at public expense at the for the 2011/12 school year (Ex. P-R).

II. POSITIONS OF THE PARTIES

A. The Parent

The parents are entitled to reimbursement of costs associated with the student’s tuition, related services and transportation to the for the 2011/12 school year. The CSE failed to offer the student a free appropriate public education (“FAPE”) on both procedural and substantive grounds. At the , the student has received specially designed instruction which met the student’s unique learning needs. There are no equitable considerations which would mitigate against a reimbursement award to the parents, who fully cooperated with the CSE. The parents also seek reimbursement of costs associated with Dr. ’ independent evaluation and the addition of a paraprofessional to the student’s IEP (Exs. P-A at 4-7, P-I, P-K, P-V, P-W).

B. The DOE

The parents’ reimbursement claims should be denied. The student requires a learning environment. The student would have met his recommended instructional goals within a year, with on such goals monitored every marking period (R. 26-27).

IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. General Legal Standards

Two purposes of the IDEA, 20 U.S.C. § 1400-1482, are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.[3] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its 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; 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 and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). 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).

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.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.

The student’s recommended program must also be provided in the least restrictive environment (the “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. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).

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). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).

B. Independent Educational Evaluation (“IEE”)

The parents are entitled to reimbursement for costs associated with Dr. ’ neuropsychological evaluation of student. Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. See 34 C.F.R. §§ 300.502(a), (b); 8 NYCRR § 200.5(g)(1); see also R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d 222, 234-35 (D. Conn. 2005) (finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent’s claim for an IEE at public expense). A parent, however, is only entitled to one IEE at public expense “each time the public agency conducted an evaluation with which the parent disagrees.” See 34 C.F.R. § 300.502(b)(5); 8 NYCRR § 200.5(g)(1); see also R.L., 363 F. Supp. 2d at 234-35. If the parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv); A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 534, 549 (D. Conn. 2002) (upholding order of reimbursement where the district failed to demonstrate that its evaluation was appropriate). If a school district’s evaluation is appropriate, a parent may not obtain an IEE at public expense. See 34 C.F.R. § 300.502(b)(3); 8 NYCRR § 200.5(g)(1)(v).

Beginning in December of 2010, the parents secured an independent evaluation of the student by Dr. due to their concerns regarding the student’s performance. The parents also sought a determination of the student’s then-current level of cognitive functioning to assist them with future educational planning and placement (Ex. P-I at 2). The parents shared Dr. ’ written evaluation of the student with school officials on or about March 10, 2011 (Ex. P-D). The CSE, however, failed to review Dr. ’ evaluation at its June 3, 2011 meeting because it did not have a school in attendance at the meeting (Exs. SD-6 at 23-24, P-A at 4, P-Q).

In their July 15, 2011 due process complaint notice, the parents demanded public reimbursement for Dr. ’ evaluation of the student (Ex. P-A at 6). Given that the DOE failed to ensure either that Dr. ’ evaluation was provided at public expense, or initiate an impartial hearing to show that its evaluations of the student were appropriate or that Dr. ’ evaluation failed to meet DOE criteria, see 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv), the parent is entitled to reimbursement for Dr. ’ evaluation (Ex. P-W), see Application of a Student with a Disability, Appeal No. 08-087 at 18-19 (SRO December 15, 2008), rev’d on other grounds, G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d. 552 (S.D.N.Y. 2010).

Alternatively, even if I were to excuse the DOE from initiating a separate hearing on the parents’ IEE request given its participation in the hearing on the parents’ other legal claims, I find that the DOE has failed to offer any evidence at the hearing that its evaluations of the student were appropriate.

C. Transportation

I find that the student has been improperly denied transportation by the DOE to the during the 2011/12 school year (Ex. P-A at 7). The Education Law requires that school districts provide a disabled student with suitable transportation up to a distance of fifty (50) miles to and from a nonpublic school for the purpose of receiving services or programs similar to those recommended by the local CSE in the student’s IEP. See N.Y. Educ. Law § 4402(4)(d); Application of a Student with a Disability (Huntington Union Free Sch. Dist.), Decision No. 13,209, 33 Ed. Dept. Rep. 712, 715 (Comm’r of Educ. June 22, 1994).

Consistent with this requirement, the DOE is obligated to provide the student with transportation to and from the during the 2011/12 school year. The student's eligibility for special education and related services as a student with autism is not in dispute in this hearing (Exs. SD-6 at 21, P-A at 2, P-B at 1-4, P-I at 5). The is a nonpublic school providing the student with services and programs similar to those recommended for him by the CSE on his IEP (Exs. SD-6, P-B, P-J, P-L, P-M, P-N, P-O, P-P, P-T, P-U, P-X ). The distance between the student’s home and the is within the fifty (50) mile legal limit (Ex. P-V at 1).[4]

D. Tuition Reimbursement

A board of education may be required to reimburse parents for private educational services obtained for a student, 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); School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 369 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to private schools for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427 (S.D.N.Y. 2011); Connors v. Mills, 34 F. Supp. 2d 795, 805-806 (N.D.N.Y. 1998).

For the reasons set forth below, I find that the CSE’s recommended program for the student was inappropriate, that the was an appropriate placement for the student and that there are no equitable grounds for which a reimbursement award should be reduced or precluded.

1. Membership at June 3, 2011 CSE Meeting

Turning to the first prong of the Burlington/Carter test, I must determine whether the DOE complied with the procedural protections of the IDEA. See Cerra, 427 F.3d at 192. The parents allege that the June 3, 2011 CSE was not properly constituted (Ex. P-A at 5).

An IEP must be prepared by a CSE having each of its required members. See, e.g., Application of a Child with a Disability (Byram Hills Cent. Sch. Dist.), Appeal No. 99-54 (SRO July 31, 2000). A CSE must consist of: the parents of the student; at least one regular education teacher of the student (if the child is, or may be, participating in the regular education environment); at least one special education teacher of the student, or if appropriate, at least one special education provider of the child; a school ; a representative of the school district qualified to provide or supervise the provision of special education; an individual who can interpret the evaluations being reviewed by the CSE; and an additional parent member. See 20 U.S.C. §§ 1414(b)(4)(A), (d)(1)(B); 34 C.F.R. § 300.321; N.Y. Educ. Law §§ 4402(1)(b), 4410(3), 8 NYCRR § 200.3(a).

(a) General Education Teacher

I find that a regular education teacher of the student was not required at the June 3, 2011 CSE meeting because the evidence does not support the conclusion that there was a reasonable likelihood that the student would have been assigned to such a teacher. See 34 C.F.R. § 300.321(a)(2); 8 NYCRR § 200.3(a)(1)(ii); W.T. v. Board of Educ., 716 F. Supp. 2d 270, 287-88 (S.D.N.Y. 2010); M.N. v. New York City Dep’t of Educ., 700 F. Supp. 2d 356, 365-66 (S.D.N.Y. 2010). Ms. testified that the student had been enrolled in his special class at , a District school primarily educating disabled students in class settings, for the last academic years (R. 34-37). The CSE recommended that the student continue in an special class program for the 2011/12 school year at the to (Ex. SD-6). Although they rejected the CSE’s proposed program, the parents unilaterally placed the student at the for the 2011/12 school year which admits only students with special education needs. Additionally, neither party in this case argues that the CSE should have offered the student additional opportunities for mainstreaming or that he should have been in a general education setting for the 2011/12 school year (Ex. P-A).

(b) Additional Parent Member

I find that the absence of an additional parent member from the June 3, 2011 CSE meeting did not impede the student’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision-making process, or caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513; 8 NYCRR § 200.5(j)(4).

Although not required by the IDEA, see 20 U.S.C. § 1414(d)(1)(B); 34 C.F.R. § 300.321, New York State law requires the presence of an additional parent member at the CSE meeting that formulates a student’s IEP, see N.Y. Educ. Law § 4402(1)(b)(1)(a); 8 NYCRR § 200.3(a)(1)(viii). New York law provides that membership of a CSE shall include an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting. See N.Y. Educ. Law § 4402(1)(b)(1)(a); 8 NYCRR § 200.3(a)(1)(viii). Parents have a right to decline, in writing, the participation of the additional parent member at any meeting of the CSE. See 8 NYCRR § 200.5(c)(2)(v). Under New York State law, CSE subcommittees have the authority to perform the same functions as the CSE, with the exception of instances in which a student is considered for initial placement in a special class, or a student is considered for initial placement in a special class outside of the student’s school of attendance, or whenever a student is considered for placement in a school primarily serving students with disabilities or a school outside of the student’s district. See N.Y. Educ. Law § 4402(1)(b)(1)(d); 8 NYCRR § 200.3(c)(4). State law further provides that when a district is permitted to convene a CSE subcommittee, the subcommittee need not include an additional parent member. See N.Y. Educ. Law § 4402(1)(b)(1)(d); 8 NYCRR §§ 200.3(c)(2)-(5).

In this case, no record was presented by the DOE evidencing that the parent waived the participation of an additional parent member at the June 3, 2011 meeting (Ex. SD-6 at 23-24). The evidence contained in the hearing record establishes that the student was not being considered for initial placement in a special class, a school primarily serving students with disabilities, or a school outside of the student’s district (R. 52; Exs. SD-6, P-B). Therefore, under State regulations, the June 3, 2011 CSE could have permissibly proceeded as a CSE subcommittee, and an additional parent member would not have been a required participant. See N.Y. Educ. Law § 4402(1)(b)(1)(d); 8 NYCRR §§ 200.3(c)(4)(i)-(iii).

(c) School

Unlike the other absent members, I find that the absence of a school from the June 3, 2011 meeting impeded the student’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision-making process, and caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513; 8 NYCRR § 200.5(j)(4).

Among the mandated CSE members is an individual who can interpret the instructional implications of evaluations results, see 8 NYCRR § 200.3(a)(1)(vi), such as a school psychologist, see 8 NYCRR §§ 200.3(a)(1)(iv), (vi). A CSE must consider independent educational evaluations obtained at public expense and private evaluations obtained at private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student. See 34 C.F.R 300.502(c); 8 NYCRR 200.5(g)(1)(vi).

The absence of a school from the June 3, 2011 meeting thwarted the CSE’s ability to review the instructional implications of Dr. ’ independent evaluation of the student (R. 60; Exs. SD-6 at 23-24; P-I, P-Q). Without the input of a school , the IEP’s analysis of the student’s levels of educational functioning could not be updated, rendering the IEP for the 2011/12 school year substantively the “ ” as in prior years (Exs. SD-6 at 1-2, P-B at 1-2, P-P at 1). Likewise, the CSE indefinitely deferred judgment on the parents’ request for a paraprofessional because no member in attendance at the June 3, 2011 CSE was qualified to comment on Dr. ’ educational recommendations for the student (R. 63; Ex. P-Q).

2. Absence of Classroom Observation

I do not find that a classroom observation of the student was a required prerequisite of the June 3, 2011 CSE meeting (Ex. P-A at 4). The Regulations of the Commissioner of Education require that a CSE conduct a classroom observation as part of its initial evaluation of a child referred to it. See 8 NYCRR 200.4(b)(1)(iv) (emphasis added). In the past, the State Review Officer has routinely annulled CSE determinations made in the absence of a required classroom observation. See, e.g., Application of a Child Suspected of Having a Disability (Bd. of Educ. of the City of New York), Appeal No. 01-107 (SRO November 19, 2002).

Here, however, the evidence is clear that the function of the June 3rd CSE meeting was not to consider the student’s initial eligibility for classification as a student with a disability (R. 47, 52; Exs. SD-6, P-B). Indeed, the student has received special education and related services from the DOE for a significant period of time (R. 35, 37; Exs. P-A at 2, P-I at 1). Given that the purpose of the June 3rd CSE meeting was to conduct an annual review of the student’s program, see 8 NYCRR § 200.4(f), rather than an initial assessment of his eligibility for classification as a student with a disability, see 8 NYCRR §§ 200.4(b)-(d), I find that a classroom observation was not required (R. 52).

Alternatively, I note that while State regulations require that an IEP report the student’s present levels of academic achievement and functional performance, State regulations do not mandate or specify where that information must come from. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-043 at 11 (SRO June 14, 2011). Given the participation of Mr. at the June 3rd meeting, who had been the student’s primary instructor for the 2008/09, 2009/10 and 2010/11 school years, I find that the absence of an updated classroom observation did not impede the student’s right to a FAPE, significantly impede the parents’ opportunity to participate in the decision-making process, or cause a deprivation of educational benefits

(R. 35, 37; Ex. SD-6 at 23-24). See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513; 8 NYCRR § 200.5(j)(4).

3. Absence of FBA/BIP

I find that the absence of an FBA/BIP from the student’s 2011/12 IEP impeded the student’s right to a FAPE and caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513; 8 NYCRR § 200.5(j)(4). When a child displays behaviors that impede his or her learning or the learning of other students, the IDEA requires that the CSE consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior. See 20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324(a)(2)(i). Additionally, State regulations require that the CSE conduct an FBA in order to determine why the child displays interfering behaviors. See 8 NYCRR § 200.4(b)(1)(v).[5] The FBA is intended to be the basis of the BIP. See 8 NYCRR § 200.1(mmm).[6] However, where the BIP documents a child’s interfering behaviors and proposes strategies and supports to address those behaviors, the failure to also conduct an FBA does not amount to a denial of FAPE. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009).

I find that the CSE’s behavioral intervention strategies for the student were insufficient to meet his needs. It is undisputed that the CSE did not develop an FBA or BIP for the student for the 2011/12 school year.[7] While the June 3, 2011 IEP indicates that the student does not need a BIP, Dr. determined (based on Mr. ’s report) that the student’s “ ” (Ex. P-I at 1). Mr. provided credible testimony that the student exhibited in between activities (R. 38). The student would in the classroom, such as , not room (Ex. P-I at 1). While Ms. would use a prompt to have the student , e.g., “ ,” after three years of instruction in Mr. ’s class, the student rarely (R. 35-37, 75-76; Ex. P-I at 1). None of the recommended IEP goals address this behavior (Ex. SD-6 at 3-16).

Mr. also stated that the student displayed , e.g., “ ” and , when in

(R. 38, 43-44, 49, 54, 57 ; Ex. SD-6 at 3). Dr. noted that the student exhibited while in the setting of her evaluation as well (Ex. P-I at 2). While one goal of the IEP was designed to improve the student’s to and in the classroom, I find that it was unreasonable for the CSE to conclude that this goal alone was sufficient to address the student’s (Ex. SD-6 at 15-16).

4. Absence of Parent Counseling & Training

I now turn to the parents' claim that the DOE failed to offer the student parent training and counseling at the June 3, 2011 CSE meeting (Ex. P-A at 4). State regulations require that an IEP indicate the extent to which parent training will be provided to parents, when appropriate. See 8 NYCRR 200.4(d)(2)(v)(b)(5). State regulations further provide for the provision of parent counseling and training for the purpose of enabling parents of students with to perform appropriate follow-up intervention activities at home. See 8 NYCRR 200.13(d). Parent counseling and training is defined as: "assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program." 8 NYCRR 200.1(kk).

I find that the absence of parent counseling and training from the June 3, 2011 IEP impeded the student’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision-making process, and caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513; 8 NYCRR § 200.5(j)(4). The hearing record is unequivocal that the provision of parent training and counseling was not memorialized on the June 3rd IEP (Ex. SD-2). Additionally, no testimony was offered to establish that that parent training and counseling would have been available at the assigned school, i.e., . Cf. M.M. v. New York City Dep't of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 509 (S.D.N.Y. 2008).

5. Absence of Transition Plan

Under the IDEA, to the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enables the student to prepare for later post-school activities, including postsecondary education, employment, and independent living. See 20 U.S.C. § 1401(34); 34 C.F.R. § 300.43; N.Y. Educ. Law § 4401(9); 8 NYCRR 200.1(fff). Accordingly, pursuant to federal law and State regulations, an IEP for a student who is at least sixteen (16) years of age (fifteen (15) under State regulations) must include appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, if appropriate, independent living skills. See 20 U.S.C. § 1414(d)(1)(A)(viii); 34 C.F.R. § 300.320(b); 8 NYCRR 200.4(d)(2)(ix). It must also include the transition services needed to assist the student in reaching those goals. See id.

I find that the absence of a transition plan from the student’s 2011/12 IEP impeded the student’s right to a FAPE and caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513; 8 NYCRR § 200.5(j)(4). Given that the student would have turned fifteen (15) years old during the 2011/12 school year (the student’s date of birth being February 20, 1997), the CSE was required to develop appropriate measurable postsecondary goals and recommended transitions services needed to assist the student in reaching those goals. See 20 U.S.C. § 1414(d)(1)(A)(viii); 34 C.F.R. § 300.320(b); 8 NYCRR 200.4(d)(2)(ix). The hearing record is unequivocal that the provision of transition goals and services was not memorialized on the June 3rd IEP (Exs. SD-2 at 19, P-B at 18). Additionally, no testimony was offered to establish that transition services would have been available to the student at the assigned school, i.e., .

6. Special Class @

I find that DOE failed to demonstrate that the CSE’s recommended program for the student was reasonably calculated to confer educational benefit. See Rowley, 458 U.S. at 203. State regulations mandate that recommended special education programs and services are selected in order for the student to advance appropriately toward attaining the annual goals in the student's IEP, to be involved and progress in the general education curriculum to the extent appropriate, and to be educated and participate with other students with disabilities and non-disabled students in academic and nonacademic activities. See 8 NYCRR § 200.4(d)(v)(a)(1-3); see also 34 C.F.R §§ 300.114, 300.320(a)(4).

A careful review of the hearing record reveals that the special class would not have offered a FAPE to the student, because the proposed program was not designed to provide an appropriate level of and support for him.[8] Mr. , who served on rd June 3 CSE as both the student’s special education teacher and its School District representative, “wasn’t familiar with all the aspects of the [recommended] program” at the (R. 47, 59). To the extent that the IEP developed at the June 3rd CSE was substantively the same as in prior years, I note that after years of receiving instruction in an academic setting, the student was only at a grade level in reading and math

(R. 35, 37, 50, 76; Exs. SD-6, P-P at 1). But for one goal, there were no annual goals, program modifications or recommended to address the student’s demonstrated and management needs (Exs. SD-6 at 23-24; P-I at 2-3).

7. Assigned School

Turning next to the parents' argument that following the June 3, 2011 CSE meeting, the DOE failed to recommend an appropriate school placement, I note that in general, the IDEA requires parental participation in determining the educational placement of a student (Ex. P-A at 5). See 34 C.F.R. §§ 300.116, 300.327, 300.501(c). Under the IDEA, a placement team, which is a group of persons including the parents, who are knowledgeable about the child, the meaning of the evaluation data, and the placement options; is responsible for selecting an educational placement that is consistent with the student's IEP. See 34 § C.F.R. 300.116. Although not required under federal law, certain states such as New York permissibly assign this function to the "IEP team" or, in other words, the CSE. See 8 NYCRR §§ 200.4(d)(2)-(4). However, the assignment of a particular school may be an administrative decision, provided that it is made in conformance with the CSE's educational placement recommendation. See Letter to Veazey, 37 IDELR 10 (OSEP 2001). The Second Circuit has established that "'educational placement' refers to the general educational program – such as the classes, individualized attention and additional services a child will receive – rather than the 'bricks and mortar' of the specific school." T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419-420, cert. denied, 130 S. Ct. 3277 (2010); see also K.L.A. v. Windham Southeast Supervisory Union, 2010 WL 1193082, at *2 (2d Cir. March 30, 2010); Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 (2d Cir. 1980). While statutory and regulatory provisions require an IEP to include the "location" of the recommended special education services, see 20 U.S.C. § 1414(d)(1)(A)(i)(VII); 34 C.F.R. § 320(a)(7), 8 NYCRR § 200.4(d)(2)(v)(b)(7), it does not follow that an IEP must identify a specific school site, see T.Y., 584 F.3d at 419-20.

In this case, the evidence in the hearing record shows that the parents were given two placement options, i.e., and (the School), prior to the CSE’s development of an IEP for the student for the 2011/12 school year. The parents’ legitimate concerns regarding these placement options, were never meaningfully addressed by the CSE (R. 61; Exs. SD-6, P-B, P-C, P-Q). Indeed, the parents’ repeated efforts to engage different school officials in a dialogue on placement options for the student for the 2011/12 school year went largely ignored (Exs. P-C, P-F, P-G, P-H, P-Q, P-R. ). Given these facts, I find that manner in which the student’s special education placement was selected impeded the student’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision-making process, and caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513;[8] NYCRR § 200.5(j)(4). G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).

Based on the credible testimony offered by Ms. , Mr. and Ms. , I find that the is an appropriate placement for the student because it provides him with specifically designed, individualized instruction to meet his unique educational needs (R. 186, Exs. P-O, P-K).

The student is enrolled in the (“ ”) program at the , which is an ungraded individualized program (R. 186). The program uses a functional academics curriculum and has a vocational aspect to the program (R. 186, 198). Students in the program have a daily between school and home (R. 197-198).

At the , the student presents with , of , with and , e.g. elopement from program. The student receives and instruction for academics (R. 244-245). The student is working between a and grade level in and (R. 236237). Changes to the education plan are often made to accommodate changes in needs and to ensure the effectiveness of the interventions being used (R. 267-268).

An IEP was developed by the staff with individualized goals for the student for the 2011/12 school year and the student is making meaningful educational toward meeting those goals (R. 247-259; Exs. P-L, P-M, P-N). The student has in his to , , in activities, through on and in class (R. 213-214, 242). , the student has made in this of boundaries (R. 201). The student’s of others had from to times per day to times per day (R. 234). into the have helped the student to those aspects of the environment which have him in the past (R. 264-265).

While attending the this year, the student receives related services of and from licensed providers (Ex. P-J). Ms. , a certified , works with the student ( ) times per week on an individual basis. Although the student displayed behaviors at the beginning of the school year, he is to Ms. (R. 312). Ms. meets the student every morning and helps him into the school (R. 308). She uses techniques such as to the student (R. 307, 310, 320). Ms. has also created a for the student and has trained his teacher, his teaching assistant and his paraprofessional in techniques to help the student (R. 313-314). The student also has access to equipment within the classroom on an as-needed basis (R. 265-267, 321). Ms. noted in the student’s ability to what he , , to and (R. 315-318, 324).

Accordingly, I find that the parents have met their burden to establish that the is an appropriate placement for the student for the 2011/12 school year.

3. Equitable Considerations

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) 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); 34 C.F.R. § 300.148(d)(1). The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 U.S. App. LEXIS 20967 (2d Cir. Aug. 9, 2006). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.

There are no equitable considerations which would preclude or reduce an award of tuition reimbursement to the parents. In a letter dated April 29, 2011, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at the at public expense for the 2011/12 school year (Exs. P-H). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no contention or evidence indicating that the parents were uncooperative with the CSE, see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student’s tuition to the is unreasonable (Ex. P-K), see Carter, 510 U.S. at 16.

E. Paraprofessional

The parents seek the addition of a paraprofessional to the student’s IEP (Ex. P-A at 4). This request is premised on an educational recommendation made by Dr. which stated, in relevant part:

In addition to academic integration, the student will also benefit from some tutoring in a structured setting for short intervals and then gradually reintegrated into the typical classroom setting. He may benefit from a half day of tutoring and then spend brief intervals in the primary classroom with a few peers for special subjects like computer, art, technical, etc. (Exs. P-I at 7, P-Q at 1).

Given the considerable difference in function between a academic tutor, as described by Dr. , and a paraprofessional, I do not find that the addition of a paraprofessional to the student’s IEP is substantiated by Dr. ’ report.

V. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) within thirty (30) days of the date of this Order, the DOE shall reimburse the parents for all costs associated with Dr. ’ January 2011 Neuropsychological Evaluation;

(2) within thirty (30) days of the date of this Order, the DOE shall reimburse the parent for all costs associated with the student’s transportation to and from the from July 1, 2011 through the date of this Order;

(3) from the date of this Order through June 30, 2012, the DOE shall provide the student with suitable transportation to and from the in a manner consistent with its obligations under Sections 3635 and 4402 of the New York Education Law; and

(4) within thirty (30) days of the date of this Order, the DOE shall reimburse the parent for all costs, including tuition, associated with the student’s private placement at the for the 2011/12 school year; and/or directly pay the private school for any outstanding costs associated with said placement. Dated: March 2, 2012

______________________________

JEFFREY J. SCHIRO, ESQ.

Impartial Hearing Officer

JJS: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 ON OCTOBER 13, 2011

PARENT

A Impartial Hearing Request/Due Process Complaint Notice, 7/15/11, 7 pp.

DEPARTMENT OF EDUCATION

1 [Reserved] 2 [Reserved] 3 [Reserved] 4 [Reserved] 5 [Reserved] 6 Individualized Education Program (IEP), 6/3/11, 24 pp.

IMPARTIAL HEARING OFFICER

I Letter to Parties from IHO, 8/3/11, 5 pp. II Letter to Parties from IHO, 8/24/11, 2 pp. III E-Mail to Parties from IHO, 10/7/11, 1 p.

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 21, 2011

PARENT

B Individualized Education Program (IEP), 6/2/11, 20 pp. C Letter to . from Parent, with Proof of-Delivery, 2/27/11, 6 pp. D Letter to . from Parent, with Proof-of Delivery, 3/10/11, 3 pp. E Letter to parents from . , 3/7/11, 1 p. F Letter to . from Parent with Proof-of-Delivery, 3/16/11, 3 pp. G Letter to . from parent with Proof-of-Delivery, 3/24/11, 3 pp. H Letter to . from Parent with Proof-of-Delivery, 4/29/11, 4 pp. I Confidential Evaluation, 1/18/11, 8 pp. J , , Class Schedule 2011/12, 1 p. K Parental Guarantee of Tuition, , 9/26/11, 2 pp. L , Draft Goals and Objectives 2011/12, 9 pp. M Projected Annual Lesson Plans, 9/9/11, 3 pp. N Summer Progress Report 2011, 8/8/11, 2 pp. O Informal Behavior Intervention Plan 2011/12, 7/20/11, 5 pp. P Letter to Mr. from Parent with IEP Attachment, 7/6/11, 25 pp. Q Letter to . from Parent with Proof-of-Delivery, 6/6/11, 3 pp. R Letter to . from Parent with Proof-of-Delivery, 6/16/11, 3 pp. S Letter from . , 7/14/11, 1 p. T , Progress Report for IEP Goals 2011/12, 10 pp. U , Report Card 2011/12, 1 p. V Parents’ Transportation Expenses & Receipts, 2011/12 school year, 10 pp. W Financial Statements Associated w/ IEE, various dates, 5 pp.

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 27, 2012

PARENT

X Formal Behavior Plan, 1/12/12, 3 pp.

IMPARTIAL HEARING OFFICER

IV Confirmation of Extension, 10/10/11, 1 p. V Confirmation of Extension, 11/7/11, 1 p. VI Confirmation of Extension, 11/21/11, 1 p. VII Confirmation of Extension, 1/9/12, 1 p.

DOCUMENTATION ENTERED INTO THE RECORD POST-HEARING

IX Confirmation of Extension, 1/27/12, 1 p.

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”

[2] The parties moved to extend the case compliance date in this matter several times during the course of the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the parties’ need for additional time to present their available witnesses and other evidence on the extensive issues raised in the parents’ due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests for an extensions of the case compliance date were granted (R. 82-83, 159-168, 375-377; Exs. IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX).

[3] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

[4] Although the parents’ June 16, 2011 transportation request was beyond the April 1st deadline to request such services (Ex. P-R), see N.Y. Educ. Law § 3635(2), there was no testimony offered that this was the reason the DOE did not provide the student with transportation to and from the during the 2011/12 school year. Even if such a defense had been asserted, the DOE would still have been required to provide transportation were a reasonable excuse offered by the parents for the late filing. See id.; see also Appeal of Davila (Uniondale Union Free Sch. Dist.), 41 Educ. Dept. Rep. 419, 420 (Comm’r of Educ. May 31, 2002).

[5] Functional behavioral assessment means the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment. 8 NYCRR § 200.1(r).

[6] Behavior management plan means a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior. 8 NYCRR § 200.1(mmm)

[7] Mr. stated that BIPs are only written for children, unlike the student, who have paraprofessionals (R. 68).

[8] While the parents asserted at the hearing that the CSE’s IEP erroneously recommended only a ten (10) month educational program for the student, the IEP reflects that the student was to receive an extended school year or twelve (12) month program (Exs. SD-6 at 18, P-A at 5, P-B at 17). See 8 NYCRR §§200.1(eee), 200.6(k). I do not find that the DOE’s delivery of the IEP to the parents on or about July 6, 2011 served to deny the student a FAPE. See Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 (2d Cir. 2005).

[8] Appropriateness of the Given my finding that the DOE failed to provide the student with a FAPE during the 2011/2012, I turn to the appropriateness of the parent’s private program. With respect to the second criterion for an award of reimbursement, the parent must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). 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. In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank