Impartial Hearing Decision

In the Matter of the Application of the Parent and Guardian of X

and

The School District. X

FINDINGS OF FACT AND DECISION

Impartial Hearing Officer

James McKeever, Esq.

September 30, 2013

FINDINGS OF FACT AND DECISION

NYS Case Identifier No.: Student’s Name: X District: School District Hearing Requested By: Parent Dates Of Hearing: June 26, 2013, June 26, 2013 and

July 10, 2013. Hearing Officer: James McKeever, Esq.

_________________________________________________________________

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 26, 2013

Attorney, Esq.: Attorney for School District Attorney, Esq.: Attorney for Parent

F YY: Former Director of Special Education-

Mother: Parent-Mother

Dr. Dr.: Current Director of Special Education Director: Director of Pupil Services HH

District

Chairperson: Chairperson HH High School Special Education Department

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 28, 2013

Attorney, Esq.: Attorney for School District Attorney, Esq.: Attorney for Parent Mother: Parent-Mother

Dr. Dr.: Current Director of Special Education

Lauren Teacher: Teacher-HH — District

Dr. Psychologist: School Psychologist HH

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 10, 2013

Attorney, Esq.: Attorney for School District Attorney, Esq.: Attorney for Parent Mother: Parent-Mother

Dr. Dr.: Current Director of Special Education

On the above listed dates, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), regarding a parent’s request for, among other things, three (3) additional years of educational services for her son, X, as well as an independent educational evaluation at the District’s expense and reimbursement for all expenses related to the Student’s attendance at The parent’s due process complaint, dated April 25 13, 2013, alleges, inter alia, that the subject child was denied a Free and Appropriate Education (”FAPE”) by the School District and the School District (“District”) because the District graduated X “prematurely” in June of 2012, and that despite the grades, test scores and credits earned as reported by the District, X could not have attained the minimum grades necessary to obtain a local diploma (Exhibit B). Specifically, the parent alleges that the District deliberately inflated X’s grade in order to graduate him before his 21st birthday (Exhibit B).

The parent also asserts that the two year statute of limitations should not apply because the District deliberately falsified the student’s records, which prevented the parent from knowing that her son’s rights under the IDEA were violated (Exhibit B).

The District asserts that a FAPE was provided to X during his entire tenure at HH High School. The District also asserts that X’s grades, tests scores and classwork were a true reflection of X’s work and that based on his efforts, X earned a local diploma after four years at HH High School. As such, the District asserts that X is no longer entitled to receive special education services from the District. Additionally, the District asserts that the parent’s due process complaint with respect to the allegation that the District falsified the student’s records should have been challenged under the Family Educational Rights Privacy Act (“FERPA”) and not under the IDEA. Further, the District contends that the parent’s due process complaint should be limited to two years as per the applicable statute of limitations.

Lastly, the District contends that the parent is not entitled to compensatory services because there has been no “gross” violation of the Student’s right to a FAPE. Findings of Fact:

X is a nineteen-year old student classified as ” (“ . Classification is not at issue. The Student entered the School District in the first grade where he was placed in a regular education class. During this school year, the District conducted an evaluation that revealed a Full-Scale Intelligence Quotient (“FSIQ”) score of 57. Based on this score, X was classified as

(Exhibit 1). The parent objected to the classification and had X evaluated privately, by Dr. . The private evaluation, which was conducted when X was in the second grade and was taking or attention issues, revealed a full scale IQ of 81 (See, WW, Ph.D. report, Exhibit 1, page 7). The evaluation also indicated that X met the criteria for and it was noted that X had elevated scores for anxiety and depression. Based on the results of the testing, Dr. WW recommended placement in an inclusion class with appropriate supports or a special class to address X’s “executive function deficits, social interactive weakness and academic needs.” Dr. WWalso recommended that counseling and social skills training be put on X’s IEP and that a social skills group should be coordinated with the Speech Pathologist or the School Psychologist. [Id]. Based on this report, the District changed X’s classification to (Exhibit 1).

In second grade, after “serious” academic and social difficulties emerged, X was transferred to a special 12:1:1 class (Exhibit 1). X remained in the special class for third and fourth grade. In fifth grade, X was transferred to a regular education class with the support of a “Intervention Assistant” and received Special Education Teacher Support Services (SETSS). In sixth grade, after “considerable difficulty” with the academic and social requirements, X was transferred back to a special class (Exhibit 1).

On November 26, 2007, when X was in the eight grade, BB, Ph.D. of the school district, conducted a psycho-education evaluation. The results of the WASI indicated that X had a Full Scale IQ score of and that he was functioning in the “ ” range of intelligence at the percentile, which indicated that X was far in cognitive/intellectual functioning when compared to his peers (Exhibit 1) (Emphasis added). The “BB” report noted that X’s scores were somewhat lower than X’s last evaluation and noted that the X was not taking medication for his deficits as he did when he was evaluated in the fifth grade (Exhibit 1, page 3). The evaluation also revealed that X had strengths in word recognition, but that he did not understand what he was reading and that he had great difficulty in deriving meaning, either literal or abstract, from written language. Dr. BB reported that this is “typical of students with low cognitive abilities.” [Id]. Dr. BB also reported that X’s social/emotional functioning was problematic and that it interfered with many areas of his functioning. Finally, it was also noted that X was a “very anxious” child “who worries about pleasing adults and about his academic performance.”[Id]. 9th Grade 2008-2009 school year:

On April 10, 2008, the School District’s Committee on Special Education (“CSE”) at the District’s middle school, generated an IEP for 9th grade that recommended placement in a 12:1:1 special class with adaptive PE, and therapy (Exhibit 2). At this time, X was recommended to attended HH High School because did not have a 12:1:1 class at their high school (Tr. 22-23). The IEP indicates that X will participate in an academic and life skills class leading to an IEP diploma. (Exhibit 2).

At the beginning of this school year, X was initially recommended for the “life skills” program at HH H.S., which was called the Vocational Independence Program (“VIP”), because the District, including the staff at HH H.S., believed that this “would be the best place for him”… ‘knowing his needs and his skill levels” (Tr. 103104).

Shortly after the beginning of the school year, the District and the staff at HH H.S. placed X in the Individual Development (”ID”) program, which was an academic program of self-contained classes where students take the “state exams” and obtain either a “local diploma” or a “Regents diploma” (Tr. 106). The District contends that the X was switched into the ID program at the request of the parent because the parent did not believe that the VIP program was challenging enough for X (Tr. 106). Ms. Chairperson, who is the Chairperson of the Special Education Department at HH H.S., stated:

“that piece came from R’s mom. That was not something—we had a meeting and we all concurred that we would give it a try and see if he could manage in there.

But that recommendation was from mom, not us.”

The parent testified that she wanted X to be challenged academically in order for X to achieve the results that were expected by the school district (Tr. 323). However, according to the parent, the decision to change X’s programming from the life skills placement to the ID program, came from Ms. Chairperson (Tr. 328).

The parent also testified that Dr. BB, who was the school psychologist that worked with X in middle school, observed the ID program and opined that he did not believe that it was appropriate for X because X would not be able to meet the academic standards of the program. According to the parent, Dr. BB believed that X belonged in VIP-Life skills program (Tr. 325).^[1]

The student’s report card for the 9th grade indicates that X passed all of his classes (Exhibit 16, page 1) and that he received a on the RCT Math exam and a on the RCT Science exam (Exhibit 16, page 1). The student’s transcript for the 9th grade indicates that X received an in English, a in Algebra, an in

Living Environment and a in Global Studies (Exhibit 16, 7, Tr. 112-113). However, the transcript indicates that X passed the RCT in Math, but says nothing about the RCT in Science (See, Exhibit 16, page 7). Nevertheless, the transcript indicates that X earned 5.5 credits towards graduation for this school year (Exhibit 16, page 7).

With respect to the 9th grade, Ms. Chairperson testified that X’s performance was “pretty typical” and that he “worked hard to get the grades he got” (Tr. 113), Nevertheless, Ms. Chairperson confirmed that she was not present in the classroom (Tr. 114).

Ms. YY, who was the curriculum specialist at H.S. and X’s case manager while he attended HH H.S. (Tr. 21), testified that at the end of 9th grade the District believed that [X] was able to do most of the work in his classes, [however] there was a concern about his “class performance, his behaviors and his social interaction as well as his test related behaviors.” Ms. YY reported that “it was their recommendation that he [X] should try doing the life skills program and [that] it might be more appropriate for him” (Tr. 25). She also testified that, although the issue was “open,” X was slated to earn an IEP diploma (Tr. 26).

The District did not offer into evidence any examples of X’s class-work, copies of his exams, quizzes or any progress reports for the 9th grade except for the score sheet for the math RCT, which was produced on the last day of hearing at the request of parent’s counsel. Additionally, X’s 9th grade classroom teachers did not testify at the hearing regarding his performance during this school year (See, record generally).

With respect to the program recommendation for the 9th grade and the subsequent switch from the VIP-Life Skills program to the ID program, no one from the CSE meeting who drafted this IEP testified at the hearing and there is no evidence in the record that an IEP meeting or any other meeting was held to discuss the District’s decision to transfer of the Student from the VIP-Life Skills program to the ID program (See, Exhibit 2, page 19 and record generally). 10th Grade 2009-2010 school year:

On April 29, 2009, the School District’s CSE generated an IEP for the 10th grade that recommended placement in 9:1:2 special class with adaptive PE, therapy and therapy (Exhibit 4, page 5).

services were removed from X’s IEP after the 9th grade (Tr. 111). Ms. Chairperson and Dr. Psychologist, who is the school psychologist at HH H.S., both were present at the CSE meeting when this IEP was developed (Exhibit 4, page 12), yet neither knew why X’s services were dropped from this IEP (Tr. 111, 239).

Under the comment section on this IEP, the CSE indicated that the “Staff expressed great concern about [X’s] class performance and [his] social interactions.” The CSE noted that “[X] is consistently off task due to internal distractions and [that he is ] overtly anxious.”…”After discussing [X’s] current needs and concerns, the staff recommended that [X] be placed fully in the life skills program for the next school year.” The IEP notes that “[The parent] expressed concern that this program [was] not academically challenging enough for [X].” It was also noted that an “Alternative district/BOCES program will be explored which might offer stronger academics in a more structured setting” (Exhibit 4, page 4). Further, the IEP also indicates that the student is overwhelmed by the design of changing classes for each subject and by meeting the demands for the diploma bound academic classes. It was also reported that although X has good decoding skills and “knowledge of information,” he had great difficulty with organization and attention to task and that he is “impulsive and takes longer to process prompts and be redirected.” Finally, it was noted that X also had “difficulty with comprehending inferential information and expressing his ideas in writing” (Exhibit 4, page 7).

With respect to his physical development, it was reported that X requires adaptive Phys. Ed. and that he required therapy to address his “excessive activity and distractibility and his difficulty with space and boundaries” (Exhibit 4, page 7). It was also reported that X would benefit from “behavior management intervention” (Exhibit 4, page 7).

The student’s report card for the 10th grade indicates that X passed all of his classes (Exhibit 16, page 2) and his transcript indicates that X received an for English Ten, a in Algebra II, a in Applied Science and a 0 in Global Ten. Additionally, the transcript indicates that X passed remedial reading, Art Seminar, Phys. Ed and Nutrition. (Exhibit 16, page 7). The transcript also indicates that X earned 6.5 credits towards graduation for this school year (Exhibit 16, page 7).

With respect to this school year, Ms. Chairperson testified that X was a “conscientious student, so he did well” (Tr. 113) and Ms. YY testified that X “made some nice progress” (Tr. 27-28). 11th Grade 2010-2011 school year:

On April 29, 2010, when X was still in the 10th grade, the School District’s CSE generated an IEP for the 11th grade that recommended placement in 12:1:1 special class with adaptive PE, l therapy and therapy (Exhibit 5, page 4). Under the comment section on this IEP, the CSE indicated that X is “making progress within the special class program” and that “Staff expressed observed improvements in social and academic behaviors.” “However, there are still concerns in these areas, especially with [X’s] ability to sustain attention” (Exhibit 5, page 3). The CSE also reported that while [X] had good knowledge of information and has shown improvement, he continues to have difficulty with organization and attention and this affects his class performance since he “misses instructional information” (Exhibit 5, page 6). It was also reported that X demonstrated less anxiety and better self control, but that he can be easily over-stimulated and that he is “often distracted internally” (Exhibit 5, page 6).

With respect to Transition planning, the “Measurable Post-Secondary Goals” indicated the following: Education and Training: “[X] has stated that he plans to go to a trade or technical school.” Employment: “[X’s ] plan is to be employed in a restaurant to be an owner or cook.” Independent Living Skills: “[X] has stated he would like to live independently.” The IEP does not indicate “Transition Needs,” but under the “Coordinated Set of Transition Activities” the IEP indicates that X will receive instruction toward a “local diploma” and services to help him develop appropriate social pragmatic skills and expressive language skills as well as strengthen his motor skills, respectively (Exhibit 5, page 7). The “Transition Activities” also note that X will meet with his guidance counselor to “review courses and discuss goals and that he will explore interests and develop skills through a half day vocational BOCES Barry Tech program.” Under “Acquisition of Daily Living Skills” the IEP states that “[R.S] will receive social skills instruction and daily living skills such as hygiene and safety and functional reading through related services (Exhibit 5, page 7).

The Career/Vocational/Transition goals included the following: X will participate in an occupational educational program for his interests, skills and vocational needs; will follow directions without interrupting his supervisor during the work day; will behave appropriately when attempting new tasks; and will remain focused and on-task for at least 10 minutes (Exhibit 5, page 11).

During this school year, X participated in an automotive vocational program at Barry Tech, which was a general education vocational skills program (Tr. 37). However, due to extreme bullying by other students in the program, X was transferred to a “graphic skills program in (Tr. 39, 69, 82, 343).

On September 7, 2010, when X began the 11th grade, Dr. conducted a reevaluation. (Exhibit 6). Dr. t reported that during the evaluation, X had difficulty staying focused and that “[X] would ask off-topic questions….sing, or stare blankly during various tasks.” Dr. noted that “[X] required frequent prompting to try and stay focused on the task at hand” and that “the attentional difficulties [he] observed during the evaluation [were] likely representative of the attentional difficulties he exhibits in class” (Exhibit 6, page 2).

Dr. reported that X’s FSIQ at this time was which [was] in the “low range of functioning.” Dr. reported that “It may be predicted from his score profile that school-related tasks will not come easy to [X]“ and that “Keeping up with an age-appropriate curriculum will likely be a great challenge for him.” “This is particularly true when you couple his cognitive deficits with his attentional difficulties.” [Id].

As part of this evaluation, Dr administered the Behavior Assessment System for Children=2nd Edition (BASC-2). As indicated in his report, “Three of the X’s teachers, who knew him over the past few years and who “completed an extensive behavior inventory,” reported that the largest concern was X’s atypical behavior (“saying and doing things that come across as odd or strange”). They also reported that X had significant attentional difficulties, social difficulties and what appeared to be “anxiety and depression.” Dr. also reported that X experienced significant anxiety and nervousness” and that “[X ha[d] significant difficulties in the areas of social skills and attention.” The parent reported that X has low “self-confidence,” has “social difficulties” and “trouble concentrating.“ X reported that he “hear[s] voices” and that he feels like someone is “watching him,” among other things (Exhibit 6, page 4).

Dr. reported that the “current evaluation indicate[d] gross cognitive ability to be significantly below average,” indicating that X will have great “difficulty comprehending age-appropriate academic material.” [Id]. Dr.

also reported that although X had “adequate spelling and decoding” and basic “math skills,” X had “significant difficulties with language comprehension.” [Id].

The Woodcock-Johnson Test of Acheivement-3rd Edition (WJ-III), which was administered as part of the reevaluation, indicated that X was at the first (1st) percentile for reading and at the percentile for oral comprehension and in the fourteenth percentile for math calculation. Additionally, although X’s reading fluency was in the fifteenth ( ) percentile, which is “ ,” X does not understand what he reads (Exhibits 1 and 6).

On November 30, 2010, X’s therapist, administered the Clinical Evaluation of Language Fundamentals (CELF-4) as part of X’s reevaluation (Exhibit 8, page 1). The results of the CELF-4 revealed that X earned a Core Language Score of which placed him at the percentile with respect to his expressive and receptive language skills2 (Exhibit 8, page 2). The reported that the “Formal test scores appear consistent with [X’s] performance in the classroom” (Exhibit 8, page 4).

Nevertheless, and contrary to the results of the cognitive and academic testing referenced above, the student’s report card for the 11th grade indicated that X passed all of his classes (Exhibit 16, page 3) and his transcript indicates that X received an for English Eleven, a in US History Eleven, an in Environmental Science, an in Graphic Arts. X also received a passing grade for Phys. Ed. Additionally, the transcript indicates that X passed the RCT in Writing and the RCT in Science. However, the transcript indicates that X scored a on the English Regents exam and a on the Global Regents exam. Further, it was also reported that X scored a on the “Regents Exam Grade” for English III and a on the “Regents Exam Grade” for US History III (Exhibit 16, page 3 and page 7)3.

With respect to this school year, Ms. Chairperson testified that X “continued to do well,”…”he was hard working” (Tr. 113) and Ms. YY testified that X “was doing nicely” with “a lot of hard work (Tr. 36).

Ms. Teacher, who was X’s U.S. History teacher and “contact” teacher for the 11th grade, and his government and economic-social studies teacher in the 12th grade (Tr. 152-154), testified that in 11th grade X had “some better days than others” (Tr. 163) and that he “struggled,” but that he was appropriately placed in the “local diploma-bound classes” and that he made significant progress toward his goals in the 11th grade (Tr. 156, 168).

The District did not offer into evidence any examples of X’s class-work, copies of his exams or copies of any quizzes for this school year with the exception a copy of the English Regents Exam and copy of the score sheet for the Science RCT, without the questions, which was produced at the request of the parent’s counsel on the last date of hearing (Exhibit 20). The District also did not offer any progress reports for 2 Most of the scores on the CELF-4 subtests were at or below the 1st percentile with the exception of “Word Classes 2-Receptive, which was at the 5th percentile.

These test scores were not explained at the hearing (See, record generally).

the 11th grade. Additionally, although the District contends that they could not obtain the student’s progress reports from “IEP Direct,” which is a software program used by the District, Ms. Teacher, who was responsible for the progress reports, was not asked to conduct a search for the progress reports, but learned that they were not on IEP Direct from the District’s Counsel (Tr. 217). Further, although Ms. Teacher initially testified that she believed that she generated the progress reports, she also testified that she did not remember (Tr.216) and that she could not recall specifically (Tr.229).

In January 2011, a Comprehensive Transition Assessment, Level III (Assessment) was conducted to assist in career exploration and transition planning for X The Assessment revealed, in summary, that X had many interests, but that he “requires an extensive amount of support in order to effectively function in a work-related setting” (Exhibit 9).

On May 4, 2011, the CSE met to consider the results of the reevaluation and develop a new IEP. This IEP also indicates that X is on track for a local diploma (Exhibit 11). The IEP also indicates that X was participating in the graphic skills vocational program in , but that the program was challenging for him (Exhibit 11, page 5).

With respect to Transition planning, the “Measurable Post-Secondary Goals” this IEP indicated the following: Education/Training: “[X] has stated that he plans to go to a trade or technical school or college.” Employment: “[X’s ] plan is undecided at this time. Independent Living Skills: “[X] has stated he would like to live independently.” Under “Transition Needs:” subheading “Needs,” this IEP states that [X] needs to explore career choices, develop appropriate work skills, and improve interpersonal skills. Under “Course of Study” the IEP indicates that [X] will continue in a modified academic special class program including a vocation program leading to a local diploma (Exhibit11, page 8). There is one goal for Career/Vocational/Transition, which states that X will participate in an occupational educational program “appropriate to his interests, skills and vocational needs” (Exhibit 11, page 9). Under the “Coordinated Set of Transition Activities” the IEP indicates that X will receive instruction toward a “local diploma” including developing math and reading comprehensive skills; speech and language services to help him develop appropriate social pragmatic skills and receptive and expressive language skills. The IEP also stated that X will meet with a counselor from ACCES and develop skills and interests at the vocational placement. Under “Acquisition of Daily Living Skills,” the IEP notes that “[R.S] will receive social skills instruction and daily living skills such as hygiene and safety and functional reading through related services (Exhibit 11, page 11).

In May of 2011, Dr. administered the Adaptive Behavior Assessment System-2nd Edition (ABAS-II), when X was at the end of the 11th grade (Exhibit 10). Dr. noted that “there was considerable difference between the teacher scores and the parent scores on the ABAS-II. The parent reported that X’s functioning was average or just below average range of functioning. X’s teacher scored his functioning to be in the “very low range.” (Exhibit 10). However, Dr. Psychologist noted that “Both parent and teacher were in agreement about [X’s] functioning as below the average range in two areas. One was Functional Academics, which the indicator of basic reading, writing, mathematics, and other academic skills needed for daily independent functioning including telling time, measurement, writing notes and letter, etc…” The other was the Social Domain, which was defined as “skills needed to interact socially, and get along with other people, including having friends, showing and recognizing emotions, assisting others and using manners” [Id].

Dr. concluded that X’s “difficulties in the social and academic domains were consistent with the results of his evaluation from [September 2010]” (Exhibit 10, page 2). 12th Grade 2011-2012 school year:

On May 4, 2011, the School District’s CSE generated an IEP for the 12th grade that recommended placement in 12:1:1 special class with related services of (Exhibit 11, page 5). X continued in the 12:1:1 with a half-day vocational program in a graphic skills class at

This IEP notes that the graphic skills program for X “has been challenging” and that “A Barry Tech program will be explored as an alternative” (Exhibit 11, page 3). With respect to academics, this IEP generally repeats what was reported on the student’s prior IEP (Exhibit 5).

The student’s report card for the 12th grade indicates that X again passed all of his classes (Exhibit 16, page 5) and his transcript indicates that X received an for English Twelve, an in Government, an in Applied Math and an in Economics. Additionally, the transcript indicates that X passed the RCT in Reading and the RCT in US History, but he received a on the English Regents exam (Exhibit 16, page 7).

As part of the curriculum for the 12th grade, all Students were required to pass the “PIG” paper, which stands for “Participation in Government” (Tr. 169). Ms. Teacher testified that with respect to the PIG paper her students were required to pick a topic related to a current public policy issue and then come up with four different interest groups who are attempting to influence the policy through the courts and the legislative branch (Tr. 169). For her self-contained class, Ms. Teacher was able to modify “certain aspects” of the paper and assist with the editing. The topic for the paper was the immigration “Dream Act.” Because there were only students in her class, she gave each student one interest group (Tr. 170). Students were required to look up information about their group, find out what they were doing to fight for or against the “Act,” list how many members they had, find out who the leader was and find out how to become a member (Tr. 170). Students were required to do this individually (Tr. 170). Ms. Teacher testified that X was the best of any of the four students in her class (Tr. 170). According to Ms. Teacher, X had to look up this information and then put it into paragraph form. Ms. Teacher testified that X wrote two pages about the ACLU and that it was “well written” (Tr. 171). The District did not offer the “PIG” paper into evidence. However, on crossexamination, Ms. Teacher stated that she had a copy of the paper and it was produced for parent’s counsel and entered into evidence as parent’s Exhibit G.

Counsel stipulated that the highlighted portion of the PIG was the work that Ms. Teacher stated that X had completed. That section stated the following:

The American Civil Liberties Union (ACLU) is an interest group who supports the New York State DREAM Act, which stands for Development, Relief, and Education for Alien Minors. The ACLU is our nations guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the Untied States guarantee everyone in this country. The ACLU is a National Organization, and membership is available to anyone. There is also a New York Civil Liberties Union which was founded in 1951. Currently, the ACLU has 500,000 members and nearly 200 staff attorneys, and thousands of volunteer attorney and offices throughout the nation. You can become a member by giving a gift amount of $35, $50, $75, $100, $200 or other amounts. The people who run this organization are President Susan Herman, Executive Director Anthony Romero, Dorothy Erich Deputy Executive Director, and Laura Murphy Director of Washington Legislative Office (“About” ACLU).

The ACLU is a nonprofit organization. The ACLU gets their money by membership dues and contributions and grants from private foundations and individuals pay for the work they do. The Individuals can give a monthly contribution of $10, $20, $35, $65, $100 or other amounts. You can also give TaxDeductible Giving, Honor Gifts, Memorial Gifts, Stock Gifts, Matching Gifts, Bequests Estate Planning, and IRA Rollover. The ACLU’s annual total revenue is $89,425,945 and has a total functional expenses of $80,$167,$100. The deficit per year is $9,258, 845. The ACLU had annual yearly expenses including Program Expenses which is $69,565,690, Administration Expenses which is $3,871,598, and Fundraising Expenses which is $6,729,812. The ACLU has a lot of money (“Donate” ACLU).

The ACLU influences the government in many ways. They have the ACLU Congressional Scorecard which provides you with a quick summary of important civil liberties measures and how your elected officials have voted. They list the specific issues and also the campaigns they were involved in which are, Keep Americans Safe and Free, Defending Targets of Discrimination, and Safe Communities, Fair Sentences. Some examples of the ACLU was that on November 22, the ACLU and civil rights supporters rallied in front of the White House to fight back against Alabama’s HB 56, bill, the harshest anti immigration law in the country. HR 56 is a state law that racially profiles Mexican Immigrants. They urged members to “Tell the Senate No to Indefinite Military Detention.” The ACLU urged North Carolina to veto a bill repealing the state’s historic Racial Justice Act, which gives prisoners on death row the chance to argue their sentences were the result of racial basis (“Take” ACLU).

The ACLU specifically wrote a letter to the Senate urging members to support the Dream Act of 2010. In their letter to the Senate, the ACLU noted its success in California upholding in-state tuition laws as a matter of fairness for all high school graduates. The ACLU in New York also wrote a letter to the House in Support of the Dream Act. (Exhibit G, page 3 and 4).

The last paragraph of the group paper was also written by X It stated the following:

I believe the New York State Dream Act will pass because it will help the minors of aliens to give them scholarships and finance so they can go to college. This is going to be successful bill because the ACLU has done a fantastic job because it had an influence on people (Exhibit G, page 8).

The District did not offer into evidence any examples of X’s class-work, copies of his exams or copies of any quizzes for this school year. The District also did not offer any progress reports for the 12th grade.

On May 17, 2012, the CSE reconvened a meeting and developed X’s “Exit Summary” (Exhibit 15). The comments on the Exit Summary are almost identical to the comments on the IEP for this school year (Exhibit 11). The Exit Summary notes that college would be difficult for X and that vocational training is more appropriate (Exhibit 15). The Summary also notes that X was eligible for services from the Office for Persons with Developmental Disabilities (OPWDD) and that a referral was made to the Adult Career and Continuing Education Services agency through the New York State Education Department (ACCES, NYSED) (Exhibit 15).

Ms. HH, and the parent, confirmed that X was rejected by ACCESS because his needs were too great (Tr. 71, 350). X was deemed eligible for OPWDD services, but not until he was 21 years old (Tr. 359).

Approximately 140 pages of emails between the parent and the school district were offered into evidence at parent’s Exhibit A. The parent testified that the emails document her requests for additional material in order to help X prepare for exams and/or the challenges of the curriculum. Although the District contends that the emails indicate the parent believed that needed an academic program and not a vocational program, Ms. YY testified that she did not see any email from the parent that stated that the parent did not want a vocational program (Tr. 79).

In June of 2012, X graduated from HH High School and received a local diploma from the School District (Tr. 50).

In the fall of 2012, X enrolled in (Tr.362). Shortly after his enrollment, X was placed in remedial classes because it was determined that X could not meet the demands of the curriculum (Tr.363). Thereafter, X was asked to terminate his enrollment at because the college determined that X could not meet the requirements of the remedial curriculum (Tr. 364). Today, X remains at home with no instruction.

The parent did not learn that she could challenge the District’s decision to graduate X and request an impartial hearing until July of 2012, which was after she learned that that X could not pass the remedial classes at (Tr. 445).

On April 25, 2013, the parent filed the within Due Process Request (Exhibit B). Statute of Limitations:

The IDEA requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged action that forms the basis of the complaint (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; Educ. Law § 4404[1][a]; 34 C.F.R. § 300.511[e]; 8 NYCRR 200.5[j][1][i]; Somoza v. New York City Dep't of Educ., 538 F.3d 106, 114 n.8 [2d Cir. 2008] [noting that the Second Circuit applied the same "knows or has reason to know" standard of IDEA claim accrual both prior to and after codification of the standard by Congress]; M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir.2003]). An exception to the timeline to request an impartial hearing applies if a parent was prevented from filing a due process complaint notice due to a "specific misrepresentation" by the district that it had resolved the issues forming the basis for the due process complaint notice or the district withheld information from the parent that the district was required to provide (20 U.S.C. § 1415[f][3][D][i]; 34 C.F.R. § 300.511[f]; 8 NYCRR 200.5[j][1][i]).

As indicated above, the parent filed the within Due Process Complaint (DPC) on April 25, 2013. The central issue raised in the DPC is that the District deliberately inflated X’s grade in order to graduate him before his 21st birthday and that this deliberate misrepresentation prevented the parent from knowing that her son’s rights under the IDEA were violated (Exhibit B). As a result of this District’s misinformation, the parent requests that the statute of limitations be tolled back to the 6th grade, which was the 2005-2006 school year (DPC, Exhibit B).

The District contends that the parent was a knowledgeable and active participant in her son’s education and that the parent was well aware of her son’s performance and functioning and that the parent had never disagreed with the District’s provision of FAPE (District Brief page 24). As such, according to the District, the statute of limitations should not be tolled.

For the reasons discussed more fully below, I find that parent was not on notice of any violation of her son’s right to a FAPE and/or any other educational injury, specifically with respect to whether her son should have graduated with a local diploma, until advised the parent that X could not participate in the remedial education program for students with disabilities. Significantly, the evidence shows that that despite the parent’s participation in the IEP process, and her active communication with the District, the parent consistently relied on the District’s reports to her that X was performing well in school. Specifically the evidence shows that the District provided the parent with report cards and transcripts, which were generated by the District, that indicated that X consistently earned a high “B” average in his core academic classes throughout his four years at HH High School. Additionally, the District also advised the parent that X passed all of the required Regents Competency Tests, which were graded by the District, and that he met all of the requirements to graduate, including the successful completion of the “PIG” paper. Moreover, although the District reported to the parent that X was unsuccessful on the formal “Regents English Examinations” (Exhibit 16), the District’s position throughout X’s high school career and throughout the impartial hearing process, was that X earned the grades that he received.

Further, I find that the various and numerous emails from the parent to the District demonstrate that the parent believed what the district was telling her about her son. Namely, that he was doing so well that he was able earn a local diploma and graduate from high school (Exhibit A).

Finally, although the parent was provided with notice of the procedural safeguards, the District did not establish that the right to a Due process hearing was contained in the notice of procedural guards and the evidence shows that based on the what the District provided the parent with respect to the student’s performance in the classroom, the parent had no reason to believe that there was any possible violation of the IDEA or educational injury to X (James v. Upper Arlington City Sch. Dist., 987 F. Supp. 1017, 1023-24 [S.D.Ohio 1997], aff'd, 228 F.3d 764 [6th Cir. 2000] [statute of limitations barred claim because parents knew that the student had suffered an injury]). Nevertheless, I find that the parent’s claims should only be tolled back to beginning of the 11th grade, which is when the District’s CSE changed the student’s expected diploma from an IEP diploma to a local diploma, because it was at that time that the Student’s right to special education services was limited to the age of 18, instead of the age of 21. As such, the parent’s claims are limited to the 2010-2011 and 2011-2012 school years4. FERPA:

4 The DPC was filed on April 25, 2013. Two years prior would be April 25, 2011. X’s 11th grade began in September 2010. Thus, tolling of the SOL to the beginning of the 11th grade is approximately 8 months back.

The District contends that because the parent challenged the “authenticity” of X’s test scores, which are educational records as defined by FERPA, the undersigned Impartial Hearing Officer lacks jurisdiction to consider the within DPC (District Brief page 26). (Application of a Student with a Disability, Appeal No. 08-125, Application of a Student with a Disability, Appeal No. 08-106, see Application of a Student with a Disability, Appeal No. 94-28). I disagree.

In Application of a Student with a Disability, Appeal No. 08-125 the parent sought to correct what she believed was erroneous information contained in a “social history update” conducted by the school district. The parent’s request was dismissed because it was determined that her claim fell under FERPA. (Note, Application of a Student with a Disability, Appeal No. 08-126 involved the same claim by the same parent and was therefore dismissed. In Application of a Student with a Disability, Appeal No. 94-28, the parent asserted that he did not receive a copy of the minutes of a CSE meeting. In a letter to respondent's superintendent of schools, petitioner requested that a "superintendent's hearing" be held for the purpose of removing the CSE minutes from the child's file because they were allegedly inaccurate and fraudulent. [Id]. The superintendent in that case acknowledged receipt of petitioner's request for a hearing, and asked petitioner to complete a form in accordance with the school district’s policy of implementing FERPA. Instead of complying with the Superintendent’s request, the parent requested an impartial hearing under the IDEA to address the alleged failure of the superintendent to conduct a FERPA hearing. [Id]. The State Review Officer affirmed the Hearing Officer’s dismissal of the DPC because the parent’s claim fell under FERPA.

Here, the parent asserts that the student was denied a FAPE because the District graduated X “prematurely” and that X could not have attained the minimum grades necessary to obtain a local diploma (Exhibit B). As such, I find that the parent’s assertions are directly related to the provision of a FAPE, and not a request to correct the student’s records or pursue a privacy violation. Additionally, it is well settled that it is not beyond an impartial hearing officer's authority to hear evidence related to a district's decision to award or disallow credit or to issue a diploma insofar as it may be relevant to the identification, evaluation, and the provision of special education programs and services to a student with a disability (see 8 NYCRR 200.5[j][1]; Application of the Bd. of Educ., Appeal No. 08-071 fn.7).

FAPE 2010-2011 and 2011-2012 School years:

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. 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 8

(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 an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving 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 school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability enabling him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 9 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see, also.

Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

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 (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]). The 2010-2011School Year:

As indicated above, the District’s CSE met on April 29, 2010, when X was still in the 10th grade, and generated an IEP for the 11th grade that recommended placement in a 12:1:1 special class with adaptive PE, and (Exhibit 5, page 4). This was essentially the same program recommendation that was made for the 9th and 10th grade.5 On May 4, 2011, the CSE met to consider the results of the reevaluation. Both of these IEPs indicate, for the first time, that X is on track for a local diploma (Exhibit 5 and 11), which meant that X could graduate at the age of 18, instead of 21.

The evidence shows that on September 7, 2010, when X began the 11th grade, Dr. conducted a reevaluation. (Exhibit 6). During the evaluation, X had difficulty staying focused and X asked “off-topic questions,” sang or “stares blankly during various tasks.” Dr. t noted that “[X] required frequent prompting to try and stay focused on the task at hand” and that “the attentional difficulties [he] observed during the evaluation [were] likely representative of the attentional difficulties [X] exhibits in class” (Exhibit 6, page 2). Dr. also reported that X’s FSIQ at this time was which [was] in the range of functioning” and that “It may be predicted from his score profile that school-related tasks will not come easy to [X]“ and that “Keeping up with an age-appropriate curriculum will likely be a great challenged for him.” Dr. opined “This is particularly true when you couple his cognitive deficits with his attentional difficulties.” [Id] Significantly, although Dr. reported that X had “adequate spelling and decoding” skills, he noted that X only had basic “math skills” and that X had “significant difficulties with language comprehension.” [Id]. Additionally, the results of the WJ-III, which was administered as part of the reevaluation, indicated that X was in the percentile for reading and the percentile for oral comprehension. It is undisputed that these results were well below average. Moreover, it the WJ-III results indicated that X's scored in the percentile for math calculation and that although reading fluency was in the h percentile, which is “below average,” X does not understand what he reads (Exhibits 1 and 6).

Further, the results of the CELF-4, which was also administered during this school year (November 30, 2010), showed that X was at the 0. percentile with

It is noted that services were inexplicably dropped after the 9th grade.

respect to his expressive and receptive language skills.^[6] Significantly, the reported that the “Formal test scores appear consistent with [X’s] performance in the classroom” (Exhibit 8, page 4).

Nevertheless, and despite the results of the cognitive, academic and language testing that was reported during this school year, which showed significant and global deficits, the student’s report card for the 11th grade indicated he received an for English Eleven, a in US History Eleven, an in Environmental Science, an Graphic Arts. Additionally, the transcript indicates that X passed the RCT in Writing and that he passed the RCT in Science. Moreover, as noted above, X’s report card for the 10th grade indicated among other grades, that he received a for English Ten and in Algebra II. Although District maintains that X “was hard working” and that he earned the grade he received (Tr. 36, 113, 156), I find that the evidence demonstrates that the District’s reported grades for this school year are implausible, and that based on the cognitive and academic testing, it is inconceivable that X truly earned the grades that were reported on his transcript. Further, although the evidence shows that X was actually in a class of students for the two school years at issue, no objective evidence was presented to substantiate these grades or the test scores, Although District administers all testified that X “worked” hard, the evidence shows that they were not in the classroom. Additionally, I find that the testimony of Ms. Teacher’s, who did not teach X English or math, was not credible with respect to her assertion that X earned the grades and test scores reported by the District. Finally, the DPC clearly challenged the authenticity of the grades and the tests scores that were reported by the District. However, the District failed to offer into evidence any examples of X’s class-work, progress reports or copies of his exams for this school year to rebut the parent’s assertions that the grade were “inflated.” Although the District contends that they could not obtain the student’s progress reports from “IEP Direct,” Ms. Teacher, who was responsible for the progress reports, was not asked to conduct a search for the progress reports and, although she initially testified that she believed that she generated the progress reports, she also testified that she did not remember (Tr.216) and that she could not recall specifically (Tr.229).

Thus, I find that the evidence shows the reported grades and test scores for this school year were not an accurate reflection of X’s abilities and, consequently, that the District failed to meet its burden of demonstrating that that Student was offered a FAPE for this school year. The 2011-2012 School Year:

The IEP for the 12th grade continued placement in 12:1:1 special class with related services of therapy (Exhibit 11, page 5). X also continued with a half-day vocational program in a graphic skills class at and then moved back to Barry Tech for “business skills” training because the graphic skills program was too challenging for him. With respect to academics, this IEP generally repeats what was reported on the student’s prior IEP (Exhibit 11).

X’s report card for the 12th grade indicated that X again passed all of his classes (Exhibit 16, page 5) and that he received an for English Twelve, an in Government, an in Applied Math and an in Economics. Additionally, the transcript indicates that X passed the RCT in Reading and the RCT in US History, but that he received a on the English Regents exam (Exhibit 16, page 7). The District also reported that X successfully completed and passed the “PIG” paper, which allowed him to graduate in June of 2012. Nevertheless, again, I find that the evidence demonstrates that the District’s reported grades for this school year are implausible, and that based on the results of the cognitive and academic testing, and X’s reported history of severe academic and social deficits, it is inconceivable that X truly earned the grades that were reported on his transcript or that he had the ability to draft the portion of the “PIG” paper that the District contends he did. Moreover, the evidence shows that the District failed to offer into evidence any examples of X’s class-work, progress reports or copies of his exams for this school year to rebut the parent’s assertions that the grade were “inflated.” Thus, like the 11th grade, I find that the evidence shows the reported grades and test scores for this school year were not an accurate reflection of X’s abilities and, consequently, that the District failed to meet its burden of demonstrating that that Student was offered a FAPE for this school year. Transition Services:

The parent asserts that the transitional goals were inappropriate and that the transition services were insufficient. The District contends that the appropriate transition services and activities were provided to X

Transition services is defined at 34 C.F.R. §300.29 to mean:

… a coordinated set of activities for a student with a disability that --

(1) Is designed within an outcome-oriented process, that promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment

(including supported employment), continuing and adult education, adult services, independent living, or community participation; (2) Is based on the individual student’s needs, taking into account the student’s preferences and interests; and (3) Includes -- (i) Instruction;

(ii) Related services; (iii) Community experiences; (iv) The development of employment and other post-school adult living objectives; and (v) If appropriate, acquisition of daily living skills and functional vocational evaluation.

34 C.F.R. §300.29.

As indicated above, the IEPs, dated April 29, 2010, May 4, 2011 provided “Measurable Post-Secondary Goals,” a “Coordinated Set of Transition” activities as well as Career/Vocational/Transition goals. The evidence also shows that X participated in a half-day vocational program at BOCES Barry tech, which included an automotive training and business skills training, and a graphic skills training program at Levittown. Further, the evidence shows that X was eligible for services from OPWDD and that the District made a referral made to ACCES (Exhibit 15). Although the evidence shows that these programs were a challenge for X, and that X was rejected from ACCES, I find that the “transition services” with respect vocational services, were appropriate for X However, and very significantly, the evidence shows that X had severe social deficits that interfered with his ability to access the curriculum and with his ability to transition from school to post-school activities. Nevertheless, despite these reported deficits, the District failed to offer any social skills training to X while he was in high school. Thus, based on these facts, I find that the lack of social skills training contributed to the denial of FAPE during the 2010-2011 and the 2011-2012 school years. Relief:

The parent requests 3 additional years of educational services for X, as well as an independent educational evaluation at the District’s expense and reimbursement for all expenses related to the Student’s attendance at Nassau Community College. IEE:

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 (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see 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 conducts an evaluation with which the parent disagrees" (34 C.F.R. § 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363 F. Supp. 2d at 234-35). If a 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 (34 C.F.R. § 300.502[b][2][i][ii];^[5] 8 NYCRR 200.5[g][1][iv]; see, e.g., A.S. v. Norwalk Bd. of Educ., 183 was appropriate]; Application of the Bd. of Educ., Appeal No. 09-109; Application of a Student with a Disability, Appeal No. 08-101). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502[b][3]; 8 NYCRR 200.5[g][1][v].

Here, there is no evidence in the record that the parent disagreed with any evaluation conducted by the school district. As such, the parent is not entitled to an IEE. Reimbursement:

The parent seeks reimbursement for her expenses related to X’s enrollment at A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]).

Here, there is no evidence in the record that the services obtained by the parent were appropriate and no evidence was presented with respect to the cost of actual services obtained. As such, the parent’s request for reimbursement for her expenses related to X’s enrollment at is denied. Compensatory Education:

Based on the violations of FAPE, the parent requests three additional years of educational services for X

Within the Second Circuit, compensatory education for a student after he or she is no longer eligible because of age or graduation to receive IDEA services has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; see also Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]). In New York State, a student with a disability is eligible for services under the IDEA until he or she receives either a local or Regents high school diploma (8 NYCRR 100.5[b][7][iii], [vi-vii]; see 34 C.F.R. § 300.122[a][3][i]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05037), or until the conclusion of the school year in which he or she turns twenty-one (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; see 8 NYCRR 200.1[zz]; see also 8 NYCRR 100.9[e]; Application of a Child with a Disability, Appeal No. 04-100). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).

Here, the evidence shows that based on the District’s “inflated” grades and test scores, X graduated in June of 2012, instead of June of 2015, when he would have turned 21. I find that the evidence demonstrates that the grade “inflation, “ which resulted in a denial of FAPE for the 11th and 12th grades, was a gross violation because had X received the grades and tests scores that were an accurate reflection of his academic abilities, he would not have graduated in June of 2012. Additionally, and not insignificantly, the evidence shows that the X has severe social deficits and that the District, throughout his entire time in high school, documented these concerns in almost every IEP and in every evaluation yet provided no services to address these needs. Accordingly, based on these facts, I find that 3 additional years of academic services and social skills training is appropriate. Record retention:

As I have found that X’s grades and test scores were inflated and that the District failed to rebut the parent’s assertions regarding this issue, it is not necessary to make an adverse inference with respect the District’s failure to produce copies of X’s records.

Finally, I have considered all of the other claims for relief and find that they are without merit.

ORDERED

The School District shall reconvene the CSE and develop a new IEP for X for the current school year and for two years thereafter within 15 days of the date of this Order. The IEP, program and placement must include individual reading instruction, functional math skills, a vocational component based on the X’s interest and abilities and shall provide sufficient social skills training, and c services. Dated: New York, New York

September 30, 2013

James McKeever, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 30 days of the receipt of this decision, the parent and/or Board 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. Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and 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 RECORD BY THE PARENT

A. Emails from parent and District Various dates 140 pages

B. Due Process Complaint 4/25/13 16 pages

C. IEP Progress Report 2-12-12 3 pages

D. Transcript 7-1-13 3 pages

E. Policies and Procedures 2013-2014 4 pages

F. Various Science Tests 9/23/09-3/4/10 8 pages

G. PIG pager 2011-2012 SY 8 pages

DOCUMENTATION ENTERED INTO RECORD BY THE DISTRICT

1. Report M. BB 1/26/07 4 pages

Report June 2002 8 pages

2. Notice of CSE 2/29/08 2 pages

Notice to Attend 3/9/08 1page

CSE Recommendations 5/13/08 1 page

IEP 08/09 SY 4/10/98 11 pages

LRE “ 2 pages

Attendance “ 1 page

Parent Non-participation “ 1 page

3. Letter 6/11/08 1 page

4. Letter 3/31/09 1 page

Letter 5/28/09 1 page

Letter 5/28/09 1 page

IEP 09/10 SY 4/29/09 8 pages

Attendance Sheet 4/29/09 1 page

5. Letter 4/13/10 1 page

Letter 6/11/10 1 page

IEP 4/29/10 9 pages

Attendance Sheet 9/1/10 1 page

6. Report 9/7/10 7 pages

7. Letter 11/18/10 2 pages

Letter 12/2/10 1 page

IEP Amendment Agt. 11/29/10 1 page

IEP Amendment 11/29/10 8 pages

8. Report 4/27/11 4 pages

9. Transition Assessment undated 20 pages

Level II Assessment undated 4 pages

10. Adaptive behavior Assessment 5/20/11 2 pages

11. Letter 4/11/11 1 page

Letter 6/28/11 1 page

IEP 11/12 SY 5/4/11 10 pages

Attendance Sheet undated 1 page

12. ACCES Release 9/30/11 1 page

13. Letter 11/23/11 1 page

Transmittal of Determination 11/11 1 page

Release 11/9/11 1 page

14. Letter 3/22/12 1 page

15. CSE MTG. Notice 4/20/12 2 pages

Letter 6/19/12 1 page

Exit Summary 6/6/12 2 pages

Attendance Sheet 5/17/12 1 page

16. Report Card 2008-2009 1 page

Report Card 2009-2010 1 page

Report Card-BOCES 2010-2011 2 pages

Report Card 2011-2012 1 page

Transcript 6/19/13 1 page

Transcript 6/24/12 1 page

17. Letter NCC 9/10/12 5 pages

18. BOCES Report 6/7/12 3 pages

19. District Response 6/21/13 66 pages

20. RCT Science and Math 6/17/09- 6/15/11 4 pages

21 English Regents 8/17/11 21 pages

22. Retention Policy undated 7 pages

23. Policy Re Records undated 5 pages

24. Records Policy undated 4 pages

25. Retention Schedule undated 2 pages

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Footnotes

[1] The District did not call Dr. BB to testify on their behalf, nor did they call Dr. BB to rebut the parent’s testimony regarding what Dr. BB believed was appropriate for X (Record generally). Additionally, the District did not offer any evidence to rebut the parent’s testimony that it was Ms. Chairperson’s decision to change the X’s programming from the life skills program to the ID class (Record generally).

[6] Most of the scores on the CELF-4 subtests were at or below the percentile with the exception of “Word Classes 2-Receptive, which was at the h percentile.

[5] , Appeal No. 08-039; , Appeal No. 07-126; , Appeal No. 06-067; , Appeal No. 05-009; F. Supp. 2d 534, 549 [D. Conn. 2002] [upholding order of reimbursement where the district failed to demonstrate that its evaluation