Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: January 25, 2013

March 4, 2013

May 9, 2013

May 23, 2013

June 6, 2013

June 14, 2013

Actual Record Closed Date: August 30, 2013

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 25, 2013

Richard Liese, Esq. Attorney — Parents

Father — Parents

Mother — Parents

Shulamit Neuman, Attorney — DOE

Esq.

via telephone Teacher — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 4, 2013

Richard Liese, Esq. Attorney — Parents

Father — Parents

Mother — Parents

Shulamit Neuman, Attorney — DOE

Esq. Teacher Dept. of Education (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 9, 2013

Richard Liese, Esq. Attorney — Parents

Shulamit Neuman, Attorney — DOE

Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 23, 2013

Richard Liese, Esq. Attorney — Parents

Father — Parents

Mother — Parents

Shulamit Neuman, Attorney — DOE

Esq.

telephone Assistant Principal — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 6, 2013

Richard Liese, Esq. Attorney — Parents

Mother — Parents

telephone Teacher — Parents

Teacher (via telephone) — Parents

via telephone Assistant Head of School — Parents

Shulamit Neuman, Attorney — DOE

Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 14, 2013

Richard Liese, Esq. Attorney — Parents

Mother — Parents

Father — Parents

Director of Student Support Services, Accounting Manager Parent (via telephone) — Parents

Shulamit Neuman, Attorney — DOE

Esq.

The matter of came for hearing before me on January 25, 2013, the date of my designation as impartial hearing officer, pursuant to the Individuals with (IDEA), 20 U.S.C. §1415(b)(2). On October 1, 2012, I was appointed as impartial hearing officer. Hearings were held on January 25, 2013, March 4, 2013, May 9, 2013, June 6, 2013 and June 14, 2013. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the requests for extensions of the compliance dates were granted (Exhs. I-IX). The current record close date is August 30, 2013 and the compliance date for issuing a decision is September 13, 2013. This hearing was convened at the request of the parents through their attorney. The request was received on October 1, 2012. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

This proceeding arose under Article 89 of the New York State Education Law and Commissioner’s Regulations as set forth in Part 200 of Title 8 of the New York Code, Rules and Regulations (NYCRR). Specifically, Section 200.5 of the Regulations provides the mechanism whereby a parent may challenge the validity of the recommendation made by a public school district’s Committee on he hearing was initiated the parents of , who challenge the February 10, 2011, review and recommendation of the Committee on Special Education (CSE).

The parents unilaterally placed their daughter in the and Development High School. The is a private entity lacking State Education Department approval and is a high school (Exh. P).

BACKGROUND

is years old. She was diagnosed with (Exh. 7 at 4). has attended the since

2011. , conducted a report on October 19, 2009, and administered the and estimated that obtained an in the range of (Exh. 7 at 2). ’s as measured by her appeared to general knowledge (Id.). The noted that achieved the following grade for The evaluator noted that ’s were very limited as were her decoding skills, but decoding was her strongest subtest (Exh. 7 at 3). The noted that and were negligible (Id.). The

For the 2010-2011 school year on September 14, 2010, classified with and recommended be placed in a 10-month program in a special class in a community public high school with twelve students and a teacher and a and receive alternative assessments as her precluded participation in state and local assessments (Exh. 3 at 22) The September 14, 2010 IEP recommended adaptive , assistive technology of an and (Exh. 3 at 1). The unit was for as had “a

The parents challenged the February 10, 2011 IEP review and disagreed with CSE’s placement. The parents maintained that District 2 failed to provide a free and appropriate public education (FAPE) and they placed at the . The parents do not have the financial resources to pay the tuition for the for the 2011-2012 school year and so request reimbursement and/or prospective payment to in the amount of $52,137.50 for the 2011-2012 school year (Exh. K at 1). The parents submitted an Affidavit from the indicating payments of $3,200 and a balance due of $48,937.50 (Exh. K at 2). The parents maintained that the DOE failed to conduct to justify its recommendations as the most recent was over and the update was over two years old so the February 10, 2011 IEP was developed without sufficient information, especially in light of significant academic (Exh. 1 at 1,2). The parents further maintained that the goals on the February 10, 2011 IEP were not appropriate and were not developed with the parents and the teachers at the (Id.). The parents asserted that the February 10, 2011 team modified the related service goals without any participation from the related service providers (Id.). The parents further asserted that the February 10, 2011 IEP or listening sufficient management needs to enable to progress (Exh 1 at 3). The parents argued that the transition plan was inappropriate and asserted that the placement offer at Development was not appropriate in light of , and was not a safe environment (Exh. 1 at 4). The parent visited the proposed placement at in June 2011 and was told that the proposed placement was not appropriate (Exhs B), but received no response (Id.). The parent enrolled at the for the 2011-2012 school year (Exh. M).

THE DEPT. OF EDUCATION’S CASE

The Department of Education’s case was presented by Shulamit Neuman, Esq., who maintained that was appropriately placed in the special and FAPE was offered for the 2011-2012 school year. Teacher with , testified for the DOE.

, a NYS certified teacher and with a Master’s degree in grades and a holder of a NYC license in health conservation in teaching students with , testified that she was assigned to CSE (trans 13, 20). She stated that she was employed by the DOE for years (trans. 21). She further stated that she conducted the school observation (Exh. 6) and chaired the IEP meeting on February 10, 2011, with herself and , the and the staff from the (trans. 34). She recalled that the teachers and related service providers from the presented their input on ’s present performance and progress for fifteen minutes and then did not participate any longer (trans. 41;52). She noted that Ms. wrote the February 10, 2011 minutes (Exh. 5) and the team recommended a program to prevent in a and classified with trans. 44). She further noted that the February 10, 2011 IEP team changed the related services mandated in the September 14, 2011 IEP; (trans. 50) however, noted that the providers were present during the change in related services (trans. 162). She maintained that the goals were incorporated into the February 10, 2011 IEP and the team used the progress report to implement the (trans. 168;173).

Ms. stated that the then teachers were present and stressed that the team created based on the assessments entitled and the progress reports (trans. 57-62;169-170). She explained that the team recommended reinforcement to meet ’s academic management needs (Exh. 4 at 3) from information obtained from the (trans. 63). She further explained that the February 10, 2011 IEP indicated ’s level of compliance was an issue in addition maintained needed as ’s behavior did not significantly impact on her or her classmates (trans. 70).

Ms. explained that the mandated for (Exh. 4 at 6) was available to all public schools (trans. 73). She opined that there were no objections voiced at the February 10, 2011 IEP meeting over the academic goals or short term objectives or goals (trans. 79; 86; 90). She stressed that the related service goals were read to the parents and were taken from the progress reports (Exh. 8), but did not recall if the provider was present for the discussion on the goal (trans. 95). She related that , the liaison, was present for the entire February 10, 2011 IEP meeting (trans. 100). She recollected that stated that the goals were appropriate (trans. 102). She further recollected that the goals and goals (Exh. 4 10-11) were derived from the staff comments and progress reports and there were no objections to the or the goals (trans. 109-111). She stated that the individual who had provided ) developed the hearing goals and provided the hearing goals to the February 10, 2011 team (trans. 114).

Ms. maintained that the transition plan (Exh. 4 at 18) on the February 10, 2011 IEP was developed to prepare for independence and long term employment (trans. 140) and the parents and discussed the transitional goals (trans 143). She related that the Head of , Mr. was present and provided input about was addressed in the annual goal (Exh. 4 at 10) for (trans. 163). She stated that neither the parents nor the staff at the objected to the transition goals or the (trans. 152; 167). She further stated that the February 10, 2011 IEP team obtained information on ’s during the course of the meeting (trans. 155).

Ms. did not recall whether ’s parents raised any objections over the District placement due to ’s (trans. 179). She opined that based on her experience as a the October 19, 2009 was sufficient to provide the team with ’s cognitive levels without the need for updated assessments (trans. 183), and that the related service providers participated in the February 10, 2011 IEP (trans. 185) and that there was sufficient supports and goals to meet ’s academic and needs (trans. 188).

On cross, Ms. acknowledged that she did not share the 2009 with any of the representatives from the (trans. 197). She further acknowledged that she did not compare the goals from the progress reports with the goals on the September 14, 2010 IEP to develop the February 10, 2011 IEP (trans. 205, 207). She stated that she did not rely on the prior IEP to develop the goals for the February 10, 2011 IEP (trans. 208). She stated that she did not conduct a and there were no updated related service (trans. 209). She acknowledged that the February 10, 2011 IEP did not reflect ’s behavior of which

THE PARENT’S CASE

Mrs. , 's mother, Mr. father, , eacher, , teacher, , Assistant Head of , Director of Student Support Services and , Accounting Manager testified in support of the parent’s claim for direct funding for her unilateral placement of at the . The parent is seeking prospective funding of $48,973.5 and reimbursement of $3,200 for tuition for the academic year 2011-2012.

teacher, a possessor of license in childhood education and , employed by the as and social studies for students (trans. 631). She described her duties which included assessing students and modifying curriculum (trans. 632). She testified that she taught for 2010-2011 and 2011-2012. She stated that she taught in a classroom of twelve students three during 2011-2012 for ELA (trans. 633). She stated that pushed into the class once a week during to work with (trans. 637; 676; 708). She recalled that the worked with in her (trans. 638). She described

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide “all children with ” a “free and appropriate public education” (20 U.S.C. Section 1400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s need, provided in conformity with a comprehensive written IEP (34 C.R. Section 300.13).

To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel.

SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the (20 U.S.C. § 1412[a][5][A]; 34 C.R. § 300.550[b]; 8 NYCRR 200.6[a][1].

In Application of the New York City Dept. of Educ., Appeal No.12-087, the SRO held that 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 or most recent " 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 and enable 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 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 , Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a , Appeal No. 04-046; Application of a Child with a , Appeal No. 02-014; Application of a Child with a , Appeal No. 01-095; Application of a Child Suspected of Having a , Appeal No. 93-9).”

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

The parent asserted many procedural flaws in the February 10, 2011 IEP: (1) the CSE failed to conduct required evaluations as there was insufficient information, especially medical updates in light of ;(2) the academic goals were not appropriate and were not developed with the parents and the teachers at the ; (3) the related service goals were modified without any participation from the related service providers; (4) there were no functioning levels for and needs to enable to progress;(5) the transition plan was inappropriate and was not appropriate in light of ’s

The SRO considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Educ., Appeal No.12-087. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing officer “may find a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; (b) significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE for 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]; R.E., 694 3d at 190; M.H., 685 3d at 245; 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 930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd3, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 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]).”

The parents asserted they were denied meaningful participation as the CSE ignored their concerns and the concerns of the Staff (Exh. XI at 8). The SRO has ruled on the participation requirements of the parents in Application of the New York City Dept. of Educ., Appeal No.12-087, and held “although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see P.K.v. Bedford Cent. Sch. Dist., 569 Supp. 2d 371, 383 [S.D.N.Y. 2008] ["A professional disagreement is not an IDEA violation."]; Sch. for Language &Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] ["Meaningful participation does not require deferral to parent choice"]; Paolella v. District of Columbia, 2006 WL 3697318, at *1 [D.C. Cir. Dec. 6, 2006]).”

I find that testimony adduced at the hearing revealed parental participation in the development of the 's February 2011 IEP of ’s mother and her then current Further, the minutes (Exh. 5) reflect the active participation of the staff and the parent in the CSE discussion of ’s current level of performance in and the areas of need and the discussion of goals and CSE recommendations reflect the concerns of ’s defiance in getting off the bus and goals to address well as the discussion of academic goals, related service provider goals and academic management needs. Testimony adduced at the hearing and the minutes reflect the discussion of the transition plan and other program options considered including either a special classes (Exh. 5 at 2; trans. 156-157). I noted that except for the liaison, the staff participated in the February 10, 2011 IEP meeting by telephone, and did receive the October 19, report (Exh. 7) and did not have access to the report during the meeting (trans at 197). Telephone conferencing of participants is permitted, provided that individuals who participate through teleconferencing must have access to the same material available to all others involved in this process. (See Application of a Child with a , Appeal No. 00-043). I find that the staff participating by phone did not have access to the same material available to all other CSE members. However, I do not find the lack the same material as the other CSE team members had on February 10, 2011 IEP team seriously infringed the parent’s opportunity to participate in the IEP formulation process.

The parents’ attorney asserted that the CSE did not consider current evaluations in recommending a program and placement. The parents’ attorney asserted in his post hearing argument that the only documents that the CSE team relied on was the classroom observation and the progress report and the CSE did not conduct a to better understand ’s non-compliance and did not and developed related service recommendations without

Testimony adduced at the hearing established that CSE reviewed and relied on the progress report that was issued December 2010 (Exh. 8) or two months prior to the meeting, and (Exh. 6), the on October 19, 2009 (Exh.7) and the prior 2010-2011 IEP (Exh. 3) and I find that CSE reviewed and utilized them (trans. 26-46). I find the October 19, 2009 report was still timely under State regulations (8 NYCRR 200.4[b][4]; see 20 U.S.C. § 1414[a][2][B]; 34 CFR § 300.303[b][2]) and nothing in the hearing record reflects that the student's warranted or that the parents disagreed with the student's (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]). The SRO has held the in Application of the Dep't of Educ., Appeal No. 12-087 that while “State regulations require that an IEP report the student's present performance, State regulations do not mandate precisely where that information must come from (see Application of the Dep't of Educ., Appeal No. 11-137; Application of a Student with a , Appeal No. 11-043). Nor is there any support for the proposition that "teacher estimates" or "teacher observations" cannot, as the parents suggest, be relied upon as a source of information for developing a student's IEP or determining the student's skill levels (S., 2011 WL 5419847, at *10; A.S. v New York City Dep't of Educ., 10-cv-00009 [E.D.N.Y. May 26, 2011]).”

The DOE’s attorney asserted in her post hearing brief that the CSE relied on the input of the personnel and parent in developing the IEP in addition to the written reports (Exh. X at 10). I credit the testimony of the district witness that the CSE obtained ’s current levels of functioning in ELA and math by the teachers (Exh. 4 at 3; trans. 5762;169-170). The parents’ attorney conceded that the exception of the liaison and the HES provider, the staff participated only long enough to provide the current levels of functioning in , (Exh. XI at 9). I find the liaison and parent and the CSE members employed by the DOE participated in the entire meeting and I find the input of the staff provided present levels performance to determine ’s her service and management needs (trans. 696-697). I credit the district witness who conducted the school observation that she and the providers were present during the change in related services (trans. 162) and she incorporated goals into the February 10, 2011 IEP and the team used the progress report to implement the (trans. 168;173). I find that CSE considered current (Exh. 6, 7) and teacher observations and related service providers in recommending a program and placement.

The parents’ attorney asserted that no was conducted and the transition plan was not appropriate. I credit the testimony of the district witness who stated that the transition plan (Exh. 4 at 18) on the IEP was developed to prepare for independence and long term employment (trans. 140) and the parents and liaison discussed the transitional goals (trans 143) and there were no objections (trans. 144). The DOE attorney asserted that the transition page included an appropriate transition plan and focused on ’s “current needs in terms of community and work-preparedness skills. See Dep’t Ex. 4; See 8 NYCRR 200.4(d)(2)(ix); 8 NYCRR 200.1 (fff)” (Exh. X at 19). I agree and find parents failed to establish that the transition plan was inappropriate and the lack of a resulted in a loss of educational opportunity.

The DOE’s attorney argued that the goals were developed from the written reports of the student’s educators at the and the verbal input from the then current teachers (Exh. X at 16). I agree. I find CSE was aware that I find that CSE addressed these issues in the February 10, 2011 IEP in the academic management needs (Exh. 4 at 3). I credit the testimony of the district witness that that the behavior issues were obtained by the teachers and based on the input of the staff ’s lack of compliance did not require the development of . 70). Further, I find that the transition plan (Exh. 4 at 10) was developed with parent and the liaison and I find the Assistant Head of the and the staff at the provided the (trans. 152; 167) and the information (trans. 188). I find the special was sufficient to address her needs. Therefore, I find the IEP that was developed by the CSE was reasonably calculated to provide meaningful educational benefit in the least restrictive environment and I find that CSE considered all required assessments.

The parents’ attorney asserted that the academic and related services goals were not discussed the parent and the staff (Exh XI at 10). I find the testimony of the liaison was inconsistent with the testimony of the ELA teacher (trans. 846). I credit the testimony of the ELA teacher who stated she reviewed the Academy Progress Report of December 2010 (Exh. 8 at 2) progress goals and content goals and noted that was still working on the goals (trans. 704). The parents’ attorney argued that the decoding level was not accurate since the did not (Exh. XI at 11), the goals did not include sufficient information to enable the measurement of progress (Id. at 12) and the single goal for were not sufficient and the was vague and generic (Id). I find that the goals and objectives corresponded to ’s needs and were appropriate. I find the progress report (Exh. 8) contained progress and unit goals for and I find the goals addressed ’ needs in her . I find that the annual goals in each area of the identified need must be set out in the IEP and I find the IEP goals were in compliance with the statutory standard regarding the information that must be included in the annual goals 20 U.S.C. § 1414[d][1][A][i][ll]. I find that the February 10, 2011 IEP goals provided sufficient information to measure the student’s progress throughout the year. I credit the testimony of the district representative who stated that the liaison did not contest the goals (trans. 102). I credit the testimony of the district witness who stated that the goals and goals (Exh. 410-411) were derived from the staff comments and progress reports and there were no objections to the or the goals (trans. 109-111), and the provider developed the hearing goals and provided the hearing goals to the February 10, 2011 team (trans. 114). I find there were measurable goals and short-term objectives and a description of how ’s progress toward meeting the annual goals will be measured.

The Second Circuit held in R.E. v. N.Y.C. Dep’t of Education., 694 3d 167, 186 (2d Cir. 2012) that “retrospective testimony’ is barred from consideration.” Id. at 186. Under the precedent of R.E., the DOE may not at the impartial hearing use retrospective testimony to rehabilitate IEP deficiencies of which it was already on notice. A recent case from the Southern District of New York, applied R.E. and confirmed that “designing an appropriate IEP in accordance with the procedural and substantive requirements of the IDEA is only the first step.” D.C. ex rel. E.B. v. N.Y.C. Dep’t of Educ., 2013 U.S. Dist. LEXIS 42764 at *39 (S.D.N.Y. Mar. 26, 2013). The DOE must establish that it can implement the IEP at the proposed placement. The parents’ attorney argued that the district’s witness did not provide any information regarding the gender make up or the of the proposed classed asserted that would not have received appropriate instruction in the proposed class (Exh. XI at 17). The SRO considered the issue of appropriate grouping in Application of the New York City Dept. of Educ., Appeal No.12-087, and held that when the “the parents rejected the IEP and unilaterally placed the student prior to the time that the district became obligated to implement the student's IEP (see Parent Ex. A). Thus, the district was not required to establish that the student would have been provided with appropriate grouping or that the assigned school staff would have been able to address the upon the implementation of his IEP in the proposed classroom.” I credit the testimony of the district witness regarding the ability of the proposed placement to have implemented the IEP (trans. 430-431) and I further credit the testimony of the district witnesses and find that the students were grouped with similar (trans. 480). Moreover, for argument sake, I find that had attended the proposed placement, she would have been grouped with children with would have been provided and the IEP would have been implemented. I find internships and would have been provided and the IEP would have been implemented. I find the positive behavior plan utilized in the proposed placement and the IEP addressed non- . I credit the testimony of the district representative that her students received their related services of .

Based on the foregoing, I find the district counsel established that FAPE was provided during the 2011-2012 school year and I find CSE offered an appropriate placement for the 2011-2012 school year. Having found that FAPE was provided, I could stop my inquiry; however, I note that the parent must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an that meets the needs. The parents have the burden of proving that the unilateral placement was appropriate. The parents bear the burden of proof with regard to the appropriateness of the services selected for the student during the 2011-2012 school year. (Application of a Child with a , Appeal No. 02-93; Application of a Child with a , Appeal No. 02-92). In order to meet that burden, the parent must show that the private school offers an educational program that meets the student's needs. (Burlington, 471 U.S. at 370 [1985]; Application of a Child with a , Appeal No. 02-080). The parents’ failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). The private school need not employ teachers, nor have its own IEP for the student. (Application of a Child with a , Appeal No. 02-092). The parent must establish by a preponderance of the evidence that the unilateral placement provides “educational instruction specifically designed to meet the unique needs .” (Gagliardo v. Arlington Cent. Sch. Dist., 489 3d 105, 122 [2d. Cir. 2007]).

To meet the second prong, the parents must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program that met the child's needs. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be Stateapproved to provide instruction to children with (Carter, 510 U.S. at 10). The student need not be the least restrictive environment (Frank G, 459 3d at 364). “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”(Frank G, 459 3d at 130). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a child, supported by such services as are necessary to permit the child to benefit from instruction. (Id. at 364-365). (See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

I find that there was no evidence presented by the parents to establish how the met the of the . I find it was uncontested that required a and the over the summer of 2011 failed to establish how ’s unique needs were met. I credit the testimony of the teacher who was unable to describe the schedule of the summer schedule (trans. 765) and I credit the testimony of the Assistant Head of who testified at the conversations that participated in with her peers and teachers (trans 818). The DOE’s attorney argued that the daily schedule indicated that for the summer of 2011 there was no academic instruction after 11:30 am (Exh. X at 26). The SRO had held the a is not sufficient if the student required a in Application of the New York City Dept. of Educ., Appeal No. 11-

057. Further, parents must prove that the chosen placement provides educational instruction designed to meet the unique needs child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo v. Arlington Cent. Sch. Dist., 489 3d 105 (2d Cir. 2007). The parents have not met this burden in the instant matter, where they have placed their child at . The testimony of the staff did not establish that the student’s program was tailored to the student’s unique needs in academics and related services needs over the summer of 2011 and the 2011-2012 year. In Application of a Child With a , Appeal No. 08-013 the SRO denied tuition reimbursement School where the hearing record failed to “…specifically indicate how the program and services provided are specially designed to meet the student’s …”. There was no documentation submitted as to any formal educational assessments. I find there was no documentation submitted as to the assessments and I credit the testimony of the teachers who stated that assessments were modified to the functional levels of the students (trans. 690; 749-750). I find that there was not sufficient information about how the individually met her needs. It was not clear how much was provided by ’s teachers nor was it clear how progressed in light of the modification of the and the . There was testimony of the inconsistent success of behavioral modification to address ’s non-compliant behavior (Exh. 6; trans. 738). Testimony and evidence adduced at the hearing established that the student continued to . While parents are not held as strictly to the standard of placement in the as school districts are, the appropriateness of the parental placement may be considered in determining whether the parents’ placement is appropriate. See M.S. v. Bd. of Educ., 231 3d 96 (2d Cir. 2000).

Based on the foregoing, I find that that the parents have not met their burden regarding the unilateral placement of the student at the School for the 2011-2012 school year.

Having found that the parents’ placement is not appropriate, I do not need to determine the third prong of the test for tuition reimbursement, whether the equities favor the parents’ position. (see M.C. v. Voluntown, 226 F3.d 60, 66 [2d Cir. 2000]; Walczak, 142 3d at 134; Application of the Dept. of Education, 12-069).

ORDER

I therefore deny the parent’s request for direct funding for the for the 2011-2012 school year. Dated: September 11, 2013

_____________________________

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

LA:gc

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 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 JANUARY 29, 2013

1 Due Process Complaint, 9/27/12, 6 pp. DOE

2 Due Process Response, 10/12/12, 4 pp. DOE

3 IEP, 9/14/10, 24 pp. DOE

4 IEP, 2/10/11, 18 pp. DOE

5 IEP Meeting Minutes, 2/10/11, 2 pp. DOE

6 DOE

8 Report, 12/10, 19 pp. DOE 9 Final Notice of Recommendation, 6/11/11, 1 p. DOE 10 Parent Letter to the CSE, 6/21/11, 1 p. DOE 11 Parent Letter to CSE, 6/22/11, 1 p. DOE 12 Parent Letter to CSE, 11/12/11, 2 pp. DOE 13 Notice of Recommended Deferred Placement,

Annual Review or Evaluation, 2/10/11, 1 p. DOE 14 Notice of IEP Meeting, Reevaluation/Annual Review,1/14/11, 1 p. DOE I Extension Decision, 12/13/12, 1 p. IHO II Extension Decision, 1/14/13, 1 p. IHO III Extension Decision, 1/25/13, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 4, 2013

IV Extension Decision, 3/4/13, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 9, 2013

A Impartial hearing request, 9/27/12, 6 pp. Parents

B Letter from parent to with receipts, 6/22/11, 5 pp. Parents

C Letter from parent to with receipt, 11/12/11, 3 pp. Parents

D Letter from parent to with receipt, 3/4/11, 2 pp. Parents

E school year consent form with receipt, 2/10/11, 2 pp. Parents

F Description of program, undated, 5 pp. Parents

G Program, undated, 2 pp. Parents

H Report, 1st Review, 12/011, 19 pp. Parents

I Report, 2nd Review 3/12, 17 pp. Parents

J Report, 3rd review, 6/12, 28 pp. Parents

K Affidavit of 2/23/12, 2 pp. Parents

L Contract, 6/8/11, 2 pp. Parents

M Contract, 4/19/11, 2 pp. Parents

N Payment schedule extension, 11/26/12, 1 p. Parents

O 2011 school schedule for Farrell, undated, 1 p. Parents

P Daily Schedule, 2011, 1 p. Parents

Q Detail, 2/29/12, 1 p. Parents

R Attendance Detail, 2/29/12, 1 p. Parents

S Confirmation Status for the 2011 tax year, 10/4/12, 2 pp. Parents

T Evidence of Tuition Payments, Miscellaneous Dates, 11 pp. Parents

V Extension Decision, 4/12/13, 1 p. Parents

VI Extension Decision, 5/9/13, 1 p. Parents

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 6, 2013

VII Extension Decision, 6/6/13, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 14, 2013

U Delivery Report

Data, 4/30/11 and 5/20/11, 1 p. Parents

V , Customer Balance

Detail, 6/14/13, 1 p. Parents

VIII Extension Decision, 6/14/13, 1 p IHO

POST HEARING SUBMISSIONS

IX Extension Decision, 8/2/13, 1 p. IHO

X Ms. Closing Statement, 8/28/13, 30 pp. IHO

XI Mr. Closing Statement, 8/28/13, 34 pp. IHO