Impartial Hearing Decision

FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER

Student's Name:

School District: School District

Hearing Requested By: Parent

Dates of Hearing: April 15, 2013

April 16, 2013

April 19, 2013

April 23, 2013

May 21, 2013

Hearing Officer: Dora M. Lassinger

NYS Identifier No.:

NAMES AND TITLES OF PERSONS WHO APPEARED April 15, 2013 April 16, 2013 April 19, 2013 April 23, 2013 May 21, 2013

Free, Esq. Attorney — District

Interim Director Pupil Personnel Services

Esq. Attorney — Parents

Paralegal — Parents

Father — Parents

Esq. Attorney — District

Interim Director Pupil Personnel Services — District

Esq. Attorney — Parents

Paralegal — Parents

Father — Parents

Esq. Attorney — District

Interim Director Pupil Personnel Services — District

Esq. Attorney — Parents

Paralegal — Parents

Father — Parents

Esq. Attorney — District

Interim Director Pupil Personnel Services — District

Esq. Attorney — Parents

Paralegal — Parents

Father — Parents

Esq. Attorney — District

Interim Director Pupil Personnel Services — District

Esq. Attorney — Parents

Paralegal — Parents

Father — Parents

Teacher — Parents

On December 6, 2012, the parents of , requested an impartial hearing for the purpose of seeking tuition reimbursement for their unilateral placement of school year. I was designated to hear this matter on December 13, 2011. The compliance date was extended on four occasions due to anticipated settlement; unavailability of witnesses and the need to obtain transcripts. The compliance date was last extended to June 19, 2013. (IHO Ex. I, II, III, IV).

Background

is an year old boy with a long history of s. (SD Ex. 1). He attended the school district’s schools through his grade year. (SD Ex. 9). During his grade year, was assigned via a 504 plan. services, were also provided to him as. (SD Ex. 1, p. 5). In November 2009, the school district conducted testing. Testing revealed a It was noted that he carried a diagnosis of.

(SD Ex. 1). On a evaluation, scores were in the. (SD. Ex. 2).’s performance on a was also within the range. (SD Ex. 3). was classified as a student with a disability in his grade year, and continued as a student at the school district’s elementary school in a mainstream program. (Tr. p.

33).

During his grade year, attended the school district’s school and received services at the.

His teacher reported progress in his ability to. It was reported that he ; but responded to a. His skills were. At a meeting held on May 2, 2011, it was recommended that his special education services remain in place. (SD Ex. 4).

, chaired the May 2, 2011 CSE review. She testified that ’s teacher reported that he was responding well to the supports which were provided to him. (Tr. pp. 32, 41). The CSE recommended that receive. He was assigned a due to concerns. The IEP noted that needed.

(SD Ex. 4). Academically, greatest difficulty was with, which was addressed in the. (Tr. pp. 41-

42).

School Year

On October 12, 2011, the parents met with classroom teacher The parents and staff discussed their desire to , so that he could demonstrate more (Tr. p. 45; SD Ex. 5). Another team meeting was held on December 7, 2011. It was reported that’s homework was improving and that he was reading at. It was determined that would be discontinued. There was also a discussion about when for him, which would be described in a. (SD Ex. 6; Tr. pp. 46-47).

On May 2, 2012, the CSE met for an annual review. The team members were both parents and. The IEP contains the following comments:

“The teacher reports that the student’s have been occurring more frequently. A plan has been in place for when the. … The student doesn’t like to be when pushed. are not always the same. In the the student brings work that in the classroom. With a in place, work is being completed. where the student is more compliant. Additional periods of were recommended for next year. The parents have a that is working with them. Parents are having the student evaluated. The committee will reconvene to review test results.”

It was recommended that continue with the classification of (SD Ex. 7, p. 1). To address the concerns raised by ’s teacher, the CSE recommended adding biweekly to’s IEP (and continuing once every two weeks); and increasing his, since it was reported that he was getting work done in that setting. testified that the school district started the re-evaluation process ; but discontinued because the parents told them to hold off, as they were in the process of a full evaluation. (Id. p. 1; Tr. p 49).

testified that the CSE reviewed ’s levels of achievement or “SPAMS” (academic, social, physical and management) and proposed goals, which were shown to the parents at the annual review; and that the parents did not object to the SPAMS or the goals. Nor did the parents disagree with the recommended program. (Tr. pp. 51-54).

The May 2, 2012 IEP notes’s difficulty with. It further notes his. Socially, it was noted that he enjoys interacting with peers, but that his was also noted. It was noted that he has a good sense of humor, enjoys taking on leadership roles and helping others. His management needs were described as a environment, . (SD Ex. 7 at 3-4). The IEP includes goals for Each goal provides criteria for determining if the goal has been achieved (ranging from 60% to 80% success), to be measured over a two or three week period by the end of each marking period. (Id.

at 5-6).

was also recommended for special throughout the day, checking of his as needed, throughout the day and a. (Id. at 6-7). The IEP includes the following:. (Id. at 8).

Following the May 2, 2012 meeting ,’s . On or about May 17, 2012, which led to a. At that point, it was felt that a should be performed. (Tr. pp. 55, 58, 73). In addition to the was on three occasions. (Tr. p. 71).

On May 22, 2012,’s father, gave consent for the (SD Ex. 8). The was performed by (Tr. p. 59; SD Ex. 9). assessment was based upon several It was recommended that. (SD Ex. 9)

On June 11, 2012, the CSE met to review the The CSE agreed with recommendations and decided to bring in to work with the school staff. (Tr. p. 62) .The Comments portion of the IEP states as follows:

“The committee agreed to provide services at to build and develop the for the fall. In addition, the committee agreed to provide prior to the start of school. support will be provided throughout the year in school. The school will communicate with (SD 11, p. 2).

The June 11, 2012 IEP provides all of the services recommended in the May 2012 IEP, with the addition of. It further provides for. (Id. p. 1). The IEP includes the same description of’s needs, as appears in the May 2012 IEP, and the same goals. (Id. at 3-6). explained that staff from would work with daily and then train and consult with school staff throughout the school year. She felt that the overall program was appropriate for She testified that none of the members of the CSE or the parents disagreed with the CSE ‘s recommendation. As of June 12, 2012, the parent’s private evaluation was not available. (T p. 64).

testified that she performed the evaluation of in the grade; and provided to him during the school years. (Tr. p. 112, 133). During the school year, the met actively participated in the and enjoyed them. (Tr. pp. 115-116).

He also came to her office,. After coming to her office, he would return to class and she was informed that he was successful in returning to the educational process. (Tr. pp. 117-118). In her observations of him in class, he was always; however he worked on whatever material was covered in the room. (Tr. p. 119). She testified that he had friends. (Tr. p. 120). Toward the end of the school year, exhibited. (Tr. pp. 134-135).

was in touch with ’s started doing an assessment of, at about the time of the May 2012 CSE review, but stopped testing him when the outside evaluator called and told her to stop. The parent did agree, however to an. (Tr. pp. 122-124, 140). She testified that asked if the school could provide with more and the committee agreed. testified that no one disagreed with the CSE’s recommendation for additional or to any of the goals contained in the May 2, 2012 IEP .

(Tr. pp. 125-127). She further testified that there was no disagreement with the June 11, 2012 IEP which added the services. (Tr. p. 133).

grade teacher (during the school year) testified that’s class consisted of twenty students.

had , and there was in the classroom. (Tr. pp. 179, 181, 197). She testified that she implemented the accommodations in’s 2011-2012 IEP, including This was successful during the first marking period. (Tr. p. 182). During the second marking period, continued to progress, however he exhibited more as the work became more difficult. He benefited from (Tr. p. 187).

If he refused to perform an assignment, would work with him on it during recess, or she sent him to the to work on it. (Tr. pp. 205-206). During the third marking period, was also making progress. (Tr. p. 189).

s grade report card reflects that he progressed in his and skills; and that he frequently demonstrated respect and cooperation in the class. It was noted that improvement was needed in his, and completion of class and homework assignments. In Language Arts, he showed in most areas, but experienced difficulty with. In math, he showed t; but did not demonstrate. In science he consistently showed. In social studies, he showed. (SD. Ex. 10).

participated in the May 2012 CSE review, and informed the committee of’s. (Tr. p. 189;

SD Ex. 7, p. 1). She felt that would benefit from the increased services which the CSE recommended. (Tr. p. 191). She spoke with the who prepared the, and agreed with her recommendations. Some of the recommendations were already being implemented; but Ms. felt that it would be beneficial for all of the staff to be provided with (Tr. pp. 193-194).

testified that was artistic; and that the children thought he was and enjoyed his stories. He was part of the class. She felt that it would be appropriate for him to continue as a grade student in the school district’s schools because despite his, he was a good learner and could be refocused.

(Tr. p. 195).

testified that assigned to, had difficulty with him at times, because she demanded a lot from, and he. (Tr. p. 199). When there was would intervene, as she and “had a lovely relationship”. (Tr. p. 200). never, or another student; however she learned there was an when he; and a separate. He was a few times, including the when. (Tr. p. 204).

testified that he became the Interim Director of Pupil Personnel when Mr. (the prior

Executive Director of Pupil Personnel Services) retired in January 2013. In December, prior to his retirement, Mr. reviewed case with (Tr. pp. 393-395). School district records indicate that the school district came into possession of the parents’ independent evaluations and records from the on September 25, 2012. (Tr. pp. 397-399; SD. Ex. 12, 14, 17, 19, 20, 25). Following the receipt of the documents, there was no subsequent IEP meeting. There were discussions about the possibility of the school district subsidizing the parental placement. (Tr. pp. 400-401).

According to, there was no indication in the school district records or in his conversation with that the independent evaluations were received prior to September 25, 2012. (Tr. pp. 406407). He testified that if the documents were delivered by messenger, they would have been date stamped. (Tr. p. 407).

Parent’s Independent Evaluation and Expert Witnesses was evaluated at in May and June of 2012, and a report was issued on July 9, 2012

(hereinafter “Report”), by

According to the Report, in the last three or four months had become more It was reported that during the past year and a half,. As of the writing of the report, had already been to a, and then subsequently. (SD Ex. 14, pp. 1-2). recent were also noted. (Id. at 3-4).

It was reported that functions within the range cognitively, with as compared with verbal abilities. It was reported that he had with skills and ability to use contextual clues, enabling him to demonstrate reading comprehension skills in the range. The discrepancy between his intellectual ability and was found to be indicative of a. In addition, his difficulty with was suggestive of a disorder of. His performance in math was in the range, with the exception of multiplication/division skills. also presented with weaknesses in Behaviorally, issues were consistent with a Diagnosis of (Id. at 11-12). It was recommended that he be placed in a school environment with a student-teacher ratio; that an be conducted, with input from considering potential, and monitoring by a professional trained in; and that instruction be, with particular emphasis on o bolster engagement with target concepts. It was further recommended that receive accommodations including. (Id. at 12-13).

For, it was recommended that be provided with a with with encouragement to and opportunity to he is interested in. In order to address, it was recommended that he be provided a comprehensive approach to improve including strategies (Id. at 13-14). Additional recommendations included planning work sessions with a or assisting with the first few

To address, it was recommended that be continued; that be avoided; that be taught in non-stressful situations; individual once his is more effectively managed; and involvement in extracurricular activities to provide exposure to positive role models and opportunities for constructive problem-solving. (Id. at 15).

On August 31, 2012, wrote an addendum to his earlier report, noting that since the time of his evaluation, had been from a program and subsequently service for several weeks. In light of these developments, he recommended placement in “a program with.” (SD Ex. 17).

In a evaluation dated March 17, 2012, diagnosed He recommended implementation of a that involves. (SD Ex. 12).

He testified that was referred to him by, to provide a second opinion regarding. (Tr. p.

353). He testified that in addition to there were elements of. family reported that he had difficulty. The family felt some of the problems may have been. (Tr. pp. 353, 355-356). review of an IEP and conversation with also indicated to him that he was. (Tr. p. 361). He was also exposed to his. (Tr. p .362).

testified that due to the severity of his, and his inability to would be and be successful at school. (Tr. p. 365). After learning from the father about and about other, he felt that would need to attend a program, because he; and that as a first step, (Tr. pp. 466-368). He testified that the program recommended by the school district would be inadequate to meet’s needs. (Tr. pp. 370-

372).

, testified that he from 2008 through 2012. During the 2011-2012 school year, his impression was that at school, and or what he was accomplishing in the classroom. (Tr. pp. 501-

505). He described various over the years, and the increase in his. (Tr. pp. 506-507). He testified that has underlying which were not discovered until private testing was done. (Tr. p. 509).

Toward the end of the school year, it became clear that’s needed a, and that made a lot of sense as the next potential step, with a program as the first step as a shorter intervention. (Tr. p. 510).

He has been in communication with the, regarding, and with his and he believes the program is appropriate. He believed that the program provided a very with a lot of academic support; as well as the opportunity to for reaching goals. (Tr. p. 511). When questioned further, testified that the. He also believed that the program provides He later testified that his understanding of the program was based upon his general knowledge of programs like l and from conversations he may have had a few months ago. (Tr. pp. 527-529).

Parent’s Testimony

’s father, testified that had an IEP from the time he was in grade, with In addition to the services provided at school, the parents provided each week, to help him complete his homework. They also hired a. There was also a team of professionals from that had been seeing for years; and a more recent evaluation from. (Tr. pp. 656-657).

Mr. . testified that from the time he was in grade, , and that he had requested an in that school year. (Tr. p. 660). He testified that at the May 2012 meeting, he was informed for the first time that triennial testing was due. He testified that had he been informed earlier of the need for testing, he would have had it completed in time for the meeting. (Tr. pp. 664). He testified that he expressed to the team that the meeting was useless without the testing. (Tr. p. 664). After being informed of the need for testing, he arranged for it to be done while (Tr. p. 665). He testified that prior to (Tr. p. 668).

At the May 2012 meeting, the father expressed his displeasure with, whom he felt was a.

(Tr. pp. 672-673). He wanted the right to review the CV for in the following school year. (Tr. p.

674). At the June 2012 IEP meeting, there was a discussion about offering to help him catch up.

The parents advised the CSE, however, that they planned to send, with the goal of providing him with new tools to come back and to be able to work with the people at, so he could try to be successful for the following school year. (Tr. p. 676). He testified that the thought this was a good idea; and it was agreed that the services would be coordinated with his schedule. (Tr. p.

679).

The father testified that it was apparent early on that the program was not working; and that he informed that would be placed in a. (Tr. pp. 679-680). He testified that requested that he keep him informed, but did not suggest reconvening an IEP team. At that point in time, they were hopeful would make it back in time for the services. (Tr. pp. 681-682). He testified that due to the needed to be placed, following his; but that were very limited options, due to. Ultimately, the parents chose because no other alternatives were presented, and this was the best possible setting they could find. (Tr. p. 682-683; 688). He testified that he has seen progress in’s ability to. In addition, he has ceased (Tr. pp. 689-691).

testified that prior to placing at, he spoke with who requested permission to speak with staff there. He testified that the Report (SD Ex. 14) and the addendum (SD Ex. 17) were dropped off, via messenger, at the school district’s office, shortly after he received them; however he could not provide a date when they were dropped off, or a receipt for either document. (Tr. pp. 684687). Nor could he state when the Evaluation (SD Ex. 12) was provided to the school district.

(Tr. pp. 694-695).

On August 15, 2012, wrote to formally rejecting the school district’s proposed placement and providing 10 day notice of his intent to place at based upon the lack of an appropriate placement for given his, and based upon the recent testing. (SD. Ex. 15). In a subsequent letter dated August 20, 2012, he clarified that he would be seeking reimbursement for the cost from educational needs at (SD Ex. 16).

On August 24, 2012, responded to the parent’s two letters, requesting that he provide to the CSE “any and all records regarding the various programs he has attended since June 2012 and any reports that were completed”. (SD Ex. 23). A second notice dated September 6, 2012 contained an identical request. (SD Ex. 18). On September 12, 2012, responded to the September 6, 2012 letter, stating that his attorney’s office was collecting the documents and would be forwarding them to him. (SD. Ex. 24). On September 25, 2012, the parent’s attorney forwarded to the school district the evaluation and records from the program. (SD. Ex. 25; Tr. p. 399).

employed at the, testified that she provided and his parents from And saw him approximately. She worked with the family to try to , to help them work better together. (Tr. p.

488).

testified that she was in touch with Ms. and that based upon her conversations with her and the parents, she was aware that engaged in at school including someone. She was told that would, would be. (Tr. p. 482). She was aware that someone with worked with in the afternoons around. (Tr. p. 483). She testified that, in her opinion, required a more restrictive environment.

(Tr. p. 486).

On, was admitted to for an anticipated two year stay. The reason for admission was his in the home and school environment.” It was reported that “can be It was further reported that he had been. (Par. Ex. H., p. 1). emphasizes a approach grounded in the with an emphasis on

“The program also offers “, if needed. (Id. at 2).

problems, as identified in the Plan, were (1) staff and then parents). (Id. at 3-5).

On July 18, 2012, the parent signed an enrollment contract enrolling at at a daily rate of which includes “The agreement provides for an additional daily rate of . The daily rate does not include related services or specialized academic tutoring. (Par. Ex. K, p. 10).

testified that she is a licensed, and that she oversees the, and the running of the program in the. She has provided for since his admission to, and works with his family, providing. (Tr. pp.

234-236, 241). She testified that most the children come to due to their difficulty, which usually follows, which. She testified that compromise in the will impact higher levels of functioning which often can contribute to. The school follows a with the premise that, children learn how to themselves, develop the capacity to learn and tolerate. (Tr. p. 238). She testified that’s academic program is overseen by , who is the principal. (Tr. pp. 240-241).

testified that she meets with formally, once each week; but that most of her work with him is in, where they work on. She testified when the children first arrive at, they are in and are until their. (Tr. pp. 242-243). checks in with to see how he is doing in the classroom, and offers assistance if needed. Within the environment, she participates in activities with the group including (Tr. pp. 290-293).

She described as bright, kind and creative with a great sense of humor. She testified that the kids like him and he can be a lot of fun. His are that when he is his which leads to his being. He will then try to of him. (Tr. p. 246). aims to (Tr. p. 247). She described the daily schedule at which includes morning exercise prior to school; and exercise and other breaks during the school day. (Tr. pp. 248-249). Their after school activities include school work, . (Tr. pp. 310-311).

lives in a with a total of students and the is staffed with and a and other staff are also assigned to the house. (Tr. pp. 251-253). speaks with s parents each week and then brings in for a so they can see one another. Each parent also visits. As exhibits more, in terms of he is allowed. (Tr. pp. 256-257, 307). The, however, are not a. (Tr. p. 308). has been allowed to go with his family in; however he has not yet. (Tr. p. 302).

On August 25, 2012, program, performed an assessment described as a (Par. Ex. I, tr. p.

269). l also received IEP’s, the Report and a report from (Tr. pp. 273-274).The testing showed that was. (Tr. p. 272. testified that he is now able to demonstrating improvement in). (Tr. p. 262;

Par. Ex. I, p. 2). are less frequent, and he demonstrates the ability to more quickly. This indicates that. (Tr. p. 299).

, a teacher (certified in), testified that he is a teacher and acting principal and). His entire educational experience has been at . There are students at through , with a wide range of skills and learning difficulties. (Tr. pp. 416-417). Class sizes range from students. Mr. has worked with since he arrived at both in his and in his academic program. (Tr. p. 418).

’s teacher, , is also certified to teach. There are also two in the classroom. Both have high school diplomas and are trained in. ’s class has students aged, with varying needs. Some of the children are, but functioning, two have, and one has. There are also students with (Tr. pp. .420-

421). Within s class, the students’ grade levels range from. (Tr. p. 453). Academic instruction takes place between 9:00 A.M. and 2:00 P.M., with a half hour lunch. (Tr. p. 449).

Mr. described as very creative and smart; with He has about his understanding of reading and math, and wants all time. This can lead to, as “he doesn’t want to go outside of his comfort zone”, which is where Mr. feels he needs to go in order to learn new concepts. (Tr. p. 423). He testified that the only documents he was provided regarding were the school district IEP’s from

2009-2010, 2010-2011 and 2011 -2012 and the March 2012 Evaluation. (Tr. pp. 439-441). He testified that while was provided with the report, he did not recall reviewing it. Nor did he make reference to any other evaluations of. (Tr. p. 464).

Mr. testified that currently has a and a schedule so he is working on certain subjects at specific times of the day. (Tr. p. 423). ’s schedule incorporates exercise breaks. ’s curriculum (called “) is an, which is individualized to each student. (Tr. p. 424). It is not a special education program. (Tr. p. 474). The program was selected because the school has students with so many different learning needs, that it was felt that this program could be individualized to the needs of the specific student. (Tr. pp. 470-471). Six of the students in’s class are working of because of their learning needs, including and a student for whom is one of the students in his class who are working on the program. (Tr. p. 450)

Mr. could not explain how the program addressed specific deficits, other than to state that would not be able to move onto in the program, until he understood the concepts so that they can be built upon. (Tr. p. 472).

teachers oversee the program, and help him organize his daily plan. In addition, they can provide those modifications so that he can work with pencil and paper, or dry erase board and markers. (Tr. p. 425). takes assessments to measure mastery of concepts and allow him to move onto the next area, when the teachers determine he is ready. curriculum consists of math, life science, reading literature (which includes grammar and spelling), art and history. His science instruction includes hands on activities. (Tr. pp. 426-427, 446-449). The school does not provide with a specific program. (Tr. pp. 465-466).

Mr. testified that is becoming more responsible with his work. At the beginning of the year, he would not attempt work unless he was getting the exact help he wanted. At present he is completing his daily assignments three to four days each week. He has also improved in his ability to tell the adults that are helping him about what is preventing him from being able to in class. works well with other students, and is doing some work in small groups and larger groups.

(Tr. pp. 429-430). He testified that based upon his grade level, s program is probably approximately (Tr. pp. 446-449).

At the end of February, the parents provided Mr. with the telephone number of teacher in the School District. Mr. called her due to the fact that was academically, and he wanted to speak with someone who was familiar with academically. (Tr. p. 464). He testified that is appropriately placed at where the approach to learning is “from a

Approximately four weeks prior to the April 23, 2013 hearing date, a was assigned to work with. This was a decision, made with the parents, as was. (Tr. pp. 456-457). The has a degree. (Tr. p. 465). He testified that the school issues report cards each semester (twice during a nine month school year) which include grades and comments for the various subjects. (Tr. pp.

457-458). The first semester ended in the second week of January; but report card was not introduced into evidence by the parents. According to Mr., during the first semester, received grades of” in every subject except art, in which he received a grade of “(Tr. pp. 460; 468-469). A progress report was also issued, describing how was progressing based upon the; (with the percentage of the course work completed) however the progress report was also not offered into evidence. (Tr. pp. 459-460).

Following his testimony, Mr. submitted an undated report updating’s academic progress. He wrote that during his first semester was “to the point of being rescued from completing basic academics including not being expected to try. These issues were profound enough and required a higher level over academic support. This unquestionably impacted ’s participation and quality of work, which resulted in ’s in all subject areas”.

He wrote that during the current semester is making progress with grades of “”s in all academic subjects except Science, in which his grade is “”. He wrote that as is still working to complete his work from the first semester, he will need to complete his work during the summer months. (Par. Ex. Q).

’s Testimony

, a certified teacher, who is employed by the school district as a instructor, testified that she worked with during his years. In the grade presented with By his grade year, received services at the daily for forty minutes. (Tr. pp. 581-583).

She testified that while she had a in place for within the, the school did not have a “” for him during any of the years she worked with him. She produced a copy of letter she wrote to, dated December 9, 2010, stating that she notified of the need for such a (Par. Ex. O).

She testified that during the school year’s and he seemed to be “”. He. He would . On one occasion, she observed him; and then afterward. She brought her concerns to the team, the principal, and to the CSE in June. (Tr. pp. 588-589). She testified that’s were, who was toward him. (Tr. pp. 590-592). She acknowledged that had made progress during his grade years at the school district’s elementary school. (Tr. pp. 621, 624). She testified that while his IEP provided that he could, outside his scheduled time, she had other students to attend to. (Tr. pp. 625-626).

She testified that at the start of the June 11, 2012 CSE review, the school principal stated that the district’s elementary school may not be the appropriate placement for (Tr. p. 597). Ms.

and the father also raised concerns. She felt that based upon decline, and in the absence of updated evaluations, she could not determine if there could be a plan put in place for the following school year. (Tr. p. 598). She testified that she did not feel that she could disagree with the CSE’s recommendation. (Tr. p. 635).

She testified that she spoke with Mr. at once briefly in the fall, and then again in May 2013, for approximately half an hour. (Tr. pp. 637-638). After reviewing the transcript of Mr.’s testimony and documents in evidence describing, she testified that, in her opinion, provides the level of which requires, given the. (Tr. p. 613). When questioned about the fact that had all of his classes in the first semester, she testified that given that entered the program the goals should be the starting place. (Tr. pp. 644-645). When asked whether an program was appropriate for , she testified that given his he would benefit from using a computer for assignments which required those tasks. (Tr. pp. 648-649).

Findings of Fact, Conclusions of Law and Order

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. Advancement to higher grade levels is an important factor in determining educational benefit. Id. at 203. The IDEA guarantees an appropriate education, “not one that provides everything that might be thought desirable by loving parents”. Walczak v. Florida Union Free School District, supra, citing Tucker v. Bay

Shore, 873 F. 2d 563 (2d Cir. 1989).

A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities does not preclude an award of reimbursement. (Florence School District Four et al.

V. Carter by Carter , to 510 US. (1993). A school district will be required to pay for a child’s residential placement, if the program was necessary for the child to make educational progress, even if the reason for the placement was to address the child’s emotional problems and home life. Mrs. B. v. Milford Board of Education, 103 F. 3d 1114 (2d Cir. 1997).

Appropriateness of the Recommended Program

For the reasons set forth below, I find that while the May 2, 2012 and the June 11, 2012

IEP’s were procedurally valid and substantively appropriate, the CSE’s subsequent failure to review the parent’s independent evaluations, (which were submitted to the school district as of September 25, 2012); and to respond to’s demonstrated need for a constituted a denial of a Free Appropriate Public Education (“FAPE”).

1. June 11, 2012 IEP

The June 11, 2012 IEP meeting was convened to review an which was created after; and due to his otherwise increasing. It duplicates the May 2, 2012, with the addition of the services of a to work directly with and with school staff.

In evaluating whether a school district has complied with the procedural requirements of the IDEA, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education, (II)

significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE, or (III) caused a deprivation of educational benefits. 20 U.S.C. Sec. 1415(f) (3) (e) (ii).

A CSE must re-evaluate a student with a disability at least once every three years. (8 NYCRR 200.4(b)(4). If the parent shares an independent educational evaluation with the school district, the results of the evaluation must be considered by the school district, if it meets the school district’s criteria. 8 NYCRR 200.5(g)(1)(vi)(a).

was due for a triennial evaluation by October 29, 2012. The school district had begun the testing process in May 2012, but was directed to cease testing, as the parents were conducting independent testing. The results of the Report and the independent Evaluation (dated March17,

2012) were not shared with the school district until September 25, 2012. In the meantime, the school district was obligated to conduct an annual review of and begin planning for the 2012- 2013 school year.

I find that the school district had sufficient evaluative information to proceed with the IEP meetings in May and June 2012. The CSE considered the results of the 2009 testing, as well as current information provided by classroom teacher, his teacher, and the. Prior to the June 11, 2012, an was conducted by an, who also participated in the June 11, 2012, with specific recommendations.

An IEP must report the student’s present levels of academic achievement and functional performance and indicate the individual needs of the students in the areas of academic achievement, social development, physical development and management needs.); 8 NYCRR 200.4(d)(2)(i); 8 NYCRR 200.1(ww)(3)(i). Academically, the May and June 2012 IEP’s include a description of performance on recent state testing, indicating he was in reading or math; as well as his specific areas of The IEP includes a detailed description of social development including his In terms of Physical Development, the IEP notes Finally, needs are well documented in both IEP’s. The June 11, 2012 also added, with a specific to be developed after had had the opportunity to get to know, before the start of school. Both IEP’s include the services of a to assist with.

While the parents complain that the school district did not consider the, including There is no indication that any of these were presented to the CSE prior to September 25, 2012, when the independent evaluations and the records from the were shared with the school district.

Nevertheless, the school district considered at school, and provided a of services to.

Goals

An IEP must include appropriate annual goals, consistent with the student’s needs and abilities, with the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal. 8 NYCRR 200.4[d][2][iii]. I find that the June 11, 2012 IEP includes comprehensive goals consistent with academic and social/emotional needs, as they presented at the time of the CSE review. I further find that the IEP sets forth evaluation criteria, procedures and scheduled to be used to measure progress toward the goals. The IEP

includes

The IEP also includes supplementary aids and modifications including. (Id. at 6-8).

The record indicates that the school district secured an; but that the actual creation of a was deferred until plan. In R.E. v. New York City Department of Education, 694 F. 3d 167 (2d Cir. 2012), the Court held that FAPE was not denied, where an were created, but did not meet state-imposed criteria, and where the were identified and the IEP included “”. (Id. at 193).

Clearly, the school district had a plan in place to address which included a, and a to work directly with and with school staff. Therefore, the failure to include the did not rise to the level of a denial of FAPE.

Substantively, I find that the June 11, 2012 IEP was appropriate, at the time it was created. According to the record, the level of support provided by the school district allowed him to make progress and advance, within a mainstream setting. Taking into account the increased difficulty of the school work, and the increase in, the CSE provided for an even greater level of support for his grade year, including to the IEP. I find that the recommended program was reasonably calculated to enable the to continue to receive educational benefits and advance in the mainstream. While his certainly placed, the school district satisfied its obligation to educate in the least restrictive environment, by continuing to recommend that he be educated in regular classes, with.

2. Subsequent and Independent Evaluations

While I find that the June 11, 2012 IEP was appropriate when written, I find that the school district’s failure to reconvene to respond to and placement constituted a denial of FAPE, where the parent presented an independent evaluation which supported the need for a more setting, and included specific recommendations to remediate order. 8 NYCRR 200.4(e)(4); 8 NYCRR 200.5(g)(1)(vi)(a); See Application of a Student with a Disability, Appeal No. 10-052; cf. Mr. and Mrs. N.C. v. Bedford Central School District, 15 IDELR 149 (2d Cir. 2008). Indeed, both the May 2012 and the June 11, 2012 IEP specifically noted that the CSE would reconvene to review the results of the parents’ independent evaluation.

The record supports the father’s testimony that as early as July, he was in communication with the school district regarding’s placement in a. On July 24, 2012, wrote to inquiring about the school’s accreditation, the typical length of stay, and the costs of the school. As of September 25, 2013, the school district was in possession of the Report recommending placement in a environment, (and the Addendum specifically recommending a placement), an independent evaluation and records from the, which indicated that due to his. The independent evaluation also identified a, and included specific recommendations. including, which were not part of June 11, 2012 IEP. In addition, was due for a triennial evaluation by October 29, 2012.

Allowing for five days’ notice (See 8 NYCRR 200.5©), I find that the CSE should have reconvened by September 30, 2013. I further find that based upon the Report, and the other documentation submitted by the parent, the CSE should have considered need for placement in

a. In addition, the CSE should also have considered the need for. 8 NYCRR 200.6(k).

Appropriateness of Parental Placement

To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006)

(citing Rowley). cert. denied, Board of Educ. Of Hyde Park v. Frank G. 128 S. Ct. 436 (2007).

With certain exceptions, the same criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parental placement. The issue turns on whether a placement- public or private –is reasonably calculated to enable the child to receive educational benefits. Frank G. v. Bd. Of Educ. Of Hyde Park, supra). While they are not dispositive factors, ‘grades, test scores, and regular advancement …

constitute evidence that a child is receiving educational benefit’. J.S. and A.G. v. Scarsdale

Union Free School District, 826. F. Supp. 2d 635 (S.D.N.Y. 2011), citing Frank G. v. Bd. Of

Educ. Of Hyde Park, supra.

While the record indicates that provides with with the goals of improving his ability to, and improving his, the parents failed to meet their burden of proving that it provides educational instruction specially designed to meet his unique needs.

In addition to recommending that be placed in a environment, the independent evaluation

Report) completed immediately before placement at recommended that be provided with a program with, a, and an individualized each day.

’s most recent IEP also recommended a , the services of a. It recommended a level of as well as extensive accommodations including.

Mr. the principal of the did not recall ever having reviewed the Report, or any other evaluative material regarding. While he did have access to IEP’s, there is no indication that provided the type of supports that had previously been provided to , so he could make educational progress.

was placed in a class of students with a wide range of needs and ability levels. Because of the wide range of grade levels within his class, he was provided with a non-special education, program, so that he could access curriculum which was on his grade level. Despite’s requests for more support, it was not until late March 2013, that a was assigned.

There is no indication that received appropriate remediation for his. Nor was any in place, as recommended in the Report and the school district’s IEP. There is no indication that his curriculum was modified to provide for responded to the educational program provided to him at, receiving grades of “” in all of his classes, except art. The parents failed to offer into evidence ’s first semester report card or progress report which might have explained his lack of progress. While Ms. and the parent testified to improved the record indicates that for the majority of the school year.

In an undated report prepared subsequent to Mr. s testimony (on April 23, 2013), it was reported that was now his classes with grades of “” to “”, and that he would be able to complete the grade curriculum during the summer.

I attach little weight to the testimony of, in support of the parent’s program. was under the impression that a was in place at for reaching; however there was no evidence that any such program existed at . Ms. testified that the program was appropriate because it met ’s.

Nevertheless, in order to qualify for reimbursement under the IDEA, the parent was also required to prove that the program met ’s educational needs. In the absence of evidence that the academic program at was reasonably calculated to enable to receive educational benefits, the parents’ request for tuition reimbursement must be denied. Gagliardo v, Arlington Cent. Sch Dist., supra;

Green v. New York City Department of Education, 50 IDELR 40 (S.DN.Y. 2008).

Classification

Although the parent alleged that was improperly classified as rather than I find that either classification described disability. All of the professionals who recently evaluated continued to which comes within the classification of. (8 NYCRR 200.. A change in classification would serve no purpose as a student’s special education programming, services and placement must be based upon a student’s unique special education needs and not upon the student’s disability classification. Application of a Student with a Disability, Appeal No. 09-126;

See Heather S. v. Wisconsin, 125 F. 3d 1045 (7th Cir. 1997). Therefore, the parents’ request for an order directing the CSE to reconvene to change ’s classification is denied.

ORDER

For all of the foregoing reasons, it is hereby ordered as follows:

1. The parents’ request for tuition reimbursement is denied.

2. The parents’ request for an order directing the CSE to reconvene to review ’s classification is denied. Dated: June 17, 2013 ___________________________________

DORA M. LASSINGER

PLEASE TAKE NOTICE

Within 35 days of the date 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.

“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.” (8 NYCRR 279.2[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 can be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

School District

1. Evaluation, October 2009, 8 pp.

2. Evaluation, November 16, 2009, 3 pp.

3. Evaluation, November 2009, 4 pp.

4. IEP, November 2, 2011, 9 pp.

5. Team Meeting Minutes, 10/12/11, 1 p.

6. Team meeting minutes, 12/7/11, 1 p.

7. IEP, 5/2/12, 11 pp.

8. Prior written notice, 5/21/12, 3 pp.

9. 6/10/12, 3 pp.

10. Report Card, 2011-2012; 3 pp.

11. IEP, 6/11/12, 11 pp.

12. Evaluation, 3/17/12, 7 pp.

13. Progress Report, 4 pp.

14. Evaluation, 7/9/12, 19 pp.

15. Correspondence from father, 8/15/12, 1 p.

16. Correspondence from father, 8/20/12, 1 p.

17. Addendum to Evaluation, 8/31/12, 1 p.

18. Correspondence to father, 9/6/12, 1 p.

19. , undated, 7 pp.

20. Summary, 8/1/12, 3 pp.

21. Due Process Complaint, 12/6/12, 8 pp.

22. Response to Complaint, 12/14/12, 2 pp.

23. Letter to Parent, 8/24/12, 1 p.

24. Email correspondence on behalf of parent, 9/12/12, 1 p.

25. Email correspondence from parent’s attorney, 9/25/12, 1 p.

26. Consent for re-evaluation, 4/29/11, 3 pp.

Parents

A. Progress Report, 4 pp.

B. , 4 pp.

C. , 3 pp.

D. 4 pp.

E. , 2 pp.

F. , 2 pp.

G. , 2 pp.

H. , 5 pp.

I. 8/25/12, 4 pp.

J. Report, , 3 pp.

K. Enrollment Agreement, 3 pp.

L. Payments and Credits Summary, 4/19/13, 1 p.

M. Cancelled checks, various dates , 17 pp.

N. Classroom observation, 11/2/11, 1 p.

O. Letter with attachments, 12/9/10, 3 pp.

P. , 5/16/13, 5 pp.

Q. Letter from , undated, 2 pp.

IHO Exhibits

I. Extension of Compliance date, 2/7/13 1 p.

II. Extension of compliance date, 3/19/13, 1 p.

III. Extension of compliance date, 4/15/13, 1 p.

IV. Extension of compliance date, 5/21/13, 1 p.

V. Closing Brief, School District, 6/12/13, 25 pp.

VI. Closing Brief, Parents, 6/12/13, 13 pp.