New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: June 13, 2013

July 9, 2013

August 12, 2013

Actual Record Closed Date: September 13, 2013

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 13, 2013

Jesse Cutler Attorney Father — Parents

Heather Hatcher Attorney — District

telephone — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 9, 2013

Gregory Cangiano Attorney — Parents

Parents

Neuro — Parents

telephone Educational Director at the — Parents telephone — Parents

Heather Hatcher Attorney — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 12, 2013

Gregory Cangiano Attorney — Parents

Parents

telephone Teacher at the — Parents

Parents

Heather Hatcher Attorney — District

On April 2, 2013, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, (IDEA) 20 U.S.C. §1415(f)(1) in the matter of (hereinafter the ”student”). The parent, by his attorney, Regina Skyer, filed the request for an impartial hearing on March 11, 2013. Hearings were held on June 13, 2013, July 9, 2013 and August 12, 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-IV). The current record close date is September 12, 2013 and the compliance date for issuing a decision is September 26, 2013. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

The hearing was requested by the parent to challenge the actions of the Committee on Education (“CSE”) and to obtain funding for a unilateral placement at the , a private entity lacking New York State Education Department approval and located in , for the 2012-2013 school year. The parent asserted he was entitled to tuition reimbursement for the because of the procedural failures of the Department of Education (“DOE”) that resulted in a denial of a free and appropriate public education (“FAPE”). The parent asserted that due to the failure of the DOE to provide FAPE his son’s condition deteriorated and his son was deprived of educational benefits and has not made meaningful progress as a result of the DOE’s failures.

The parent brought the hearing seeking tuition reimbursement solely (trans. 344). The amount of $ 79,800 covered tuition, room and board (trans. 176). The parent submitted an invoice indicated that $5,000 was due for the deposit for the and $18,700 was due for tuition, room and board for first quarter, $18,700 was due for tuition, room and board for the second quarter, $18,700 was due for tuition, room and board for the third quarter and $18,700 was due for tuition, room and board for the fourth quarter and that the parent paid in full (Exh. Y).

BACKGROUND

The student is a year-old boy who attended a general education class in a residential school at the , located in , in the grade for the 2012-2013 school year. The student began attending the on August 22, 2012 (Exh. X at 2). The is a accredited by the , izing in servicing students with and and a population of and the largest class has students (trans. 137).

The parent provided his son’s educational history and explained that prior to the the student attended private schools (trans. 323). He stated his son was diagnosed with at the age when he was living with his mother in and his son attended a private , the . The student then attended the School in , another school. The student then attended the for grade (trans. 326). The parent reported that the student experienced The parent attended the March 19, 2012 IEP meeting and reported that his son had and did not recall a discussion of his son’s need for (trans. 337). The parent stated that the CSE recommended a placement in an ”) / class and the program was not appropriate (trans. 338). The parent received that Final Notice of Recommended (“FNR”) placement for the High School (Exh. 6).

The parent contacted CSE on August 22, 2012 after the student was enrolled at the by a referral letter to . (Exh. A) and on August 20, 2012, to alert CSE that both he and the School teacher expressed the need for a small, school setting to address his son’s significant The parent stated that he placed the student in because it was the last resort and that it was an appropriate placement (trans. 340).

When the student was years old, a was conducted on March 30, 2010. The indicated that the student was diagnosed with conducted a when the student was years old and in grade at the School on April 20, 2010. Dr. assessed the student’s on the for and reported the following results: Dr. reported the student’s current levels of academic functioning on the ,

THE POSITION OF THE PARTIES

The DOE asserted that the CSE relied on current and appropriate evaluative material, including recent assessments and teacher input and developed an appropriate IEP that met the student’s educational needs and proposed ICT placement was in a community public school and would enable the student to receive meaningful educational benefit in the environment (Exh. V at 2). The DOE further asserted that the parent failed to give notice of his unilateral placement to the and failed to cooperate with CSE by withholding important information about the student’s emerging and the parent’s opinion about the type of program the student required (Exh. IV at 3). The DOE further maintained that the was not appropriate because it was not uniquely tailored to meet the student’s and was an out of school was not in the (Exh. V at 2). The DOE lastly argued that the equities do not favor the parent. The DOE maintained that the parent never would have considered any public school placement Exh. V at 3). The parent asserted that the recommended program and placement was not appropriate and not supported by the information and documentation before the CSE at the March 19, 2012 IEP meeting (Exh. VI at 7). The parent asserted that the DOE was not able to prove the placement was capable of implementing the IEP for the 2012-2013 school year and that the was appropriate and the equities favored the parent (Exh. VI at 12-20)

THE DEPARTMENT OF EDUCATION CASE

Heather Hatcher, Esq., was present on behalf of the DOE and she presented as her witness. Ms. was the Chairperson for the . Ms. , school assigned to since 2008, testified that she worked was a NYS certified school and that she participated in the March 19, 2012 IEP. She recalled that she and , the education teacher, the parent member, Ms. and the father were physically present and the then current teacher from the School, Ms. participated by telephone (trans 10) and recalled the CSE obtained present and considered the report card (Exh. 6), the (Exh. 7) and the report (Exh. 8) in developing the IEP (trans. 11). She stated that the student’s School teacher and father contributed to the team’s knowledge of the student and provided that student’s current level of (trans. 14). She recalled that the student’s She recollected that the team recommended an ICT or CTT placement and both individual and a group (trans. 17). She explained that the education teacher in the ICT or CTT class could address the student’s and provide the management needs of prompting and limited setting (Id.). She maintained that the recommendation with related services was appropriate and that the father raised no objections to the recommendation (trans. 18). She stated that the father took an active role in the meeting and described his concerns for his son’s (Id.). She further stated that the School teacher did not raise any objections (trans. 19). She noted that other settings such as a general education placement with only related services was considered and rejected. She stated that the setting of a pull-out period of education teacher support services (“SETSS”) was rejected because the student required modifications in the class all day from a education teacher to support him emotionally. She stated that a class or a self-contained class was because the student did not have any academic deficits as assessed by the Id.). She listed that supports which included graphic organizers, limit setting, preferential seating, integrated technology, the use of a computer and clearly delineated expectations to address his organization weakness (trans. 21).

On cross Ms. acknowledged that she never or observed the student and that the 2010-2011 recommendation was CTT (trans. 31). She further acknowledged that that School had with IEPs within NYC and the population of the School was (trans. 34). She allowed that she did not know the specific supports that the student received in the School during the 2011-2012 school year and recalled in general that the School had two teacher and a pushed into the class and that was provided (trans. 36). She did not recall a discussion of how the student functioned during non-structured times such as nor did she recall a discussion of the student’s even in a small class in a small school environment or whether the parent objected to the ICT recommendation (trans. 37-38) and after the March 2012 IEP she had no further contact with the parent (trans. 42).

THE PARENT’S CASE

The parent; at the and , teacher at the School testified in support of the parent’s claim for tuition reimbursement for the unilateral placement of the student in the . The parent maintained that the DOE failed to provide a FAPE because CSE failed to hold a CSE review for the 2011-2012 school year and prior review was conducted in May 2010 recommended that same ITC program as the March 19, 2012 IEP. The parent disputed the March 19, 2012 IEP program because the student’s required a more intense program (Exh. 1 at 2) The parent argued that the DOE failed to offer FAPE because the ICT class was not appropriate and the recommendation of the ICT was made in opposition to the parent and staff’s concerns for a and high levels of support and seek reimbursement for tuition at the . The parent believed that the placement at the was appropriate and the equities favored him.

The parent described the student’s educational history (trans. 324-333). The parent stated the student attended that School for to (trans. 336). The parent further stated that the CSE team discussed his (trans. 337). He did not recall a discussion of the ICT program (trans. 338). He stated that he did not receive a copy of the IEP (trans. 338). He further stated that he visited the proposed placement after he received the FNR on August 17, 2012, He opined that the School was not effective because his son had trans. 342). He stated he signed the contract for the on August 22, 2012 (trans. 344). He opined that his the and that the placement was more of a (trans. 348).

On cross the parent stated that he knew at the March 19, 2012 IEP meeting that his son had , but he did not share his opinion of the appropriateness of the School with the team (trans. 354). He further stated that he did not recall Ms. discussion that his son required and he did not go into the proposed school or speak to the staff at the proposed school (trans. 356).

Dr. testified that he was licensed to practice in NYS in (trans. 59). He stated that he was a clinical instructor at NYU School of e and was the director of (trans. 60). He stated that he was familiar since (trans. 62). He explained that student presented included a and areas (trans. 64). He described the student’s (trans. 66). He noted the student’s (trans. 68). He recalled that during the 2011-2012 school year he was in constant communication with the staff at the school and he received Dr. recollected that he found in May 2012 and recommended the school to the student and his father because the had an environment for children with (trans. 75). He described the classrooms at the which were in every aspect of the child’s day (trans. 77). He opined that the was for the student (trans. 78). He further opined that the had a program that focused on children with and that the student thrived at the and as evidenced by the fact that the student (trans. 81). He further opined that the proposed ICT placement with in a large for the student (trans. 88). He recalled that he was present with the father and the student during the visit to the proposed high school and the student would not opined that there would be no peer that was appropriate for the student in the whole school (trans. 89).

On cross Ms. stated that she observed a CTT class in 2003(trans. 310), and did not recommend that the student be placed in a residential program during the March 19, 2012 IEP meeting (trans. 311). She further stated that the parent and the administration at the School discussed the residential program in May or June of 2012 (trans. 312). She maintained that she believed that the School was an appropriate program at the time of the March 19, 2012 IEP meeting and she provided the School progress reports and provided accurate information regarding the student (trans. 313). She further maintained that she provided accurate information regarding the in the reports (trans. 316). She stated that she by the student after the March 19, 2012 IEP meeting (trans. 317). She opined that the student was relating negatively to things going on outside of the school (trans. 318). She noted that the student exhibited , but was motivated by

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 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of ized education and related services designed to meet a student’s need, provided in conformity with a comprehensive written IEP (34 C.F.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 F.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 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.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 least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.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 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 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. 06059; 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 F.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’s attorney asserted that the CSE failed to support the ICT program recommendation (Exh VI at 7) as it was clear from the School reports that the team had insufficient information to understand the student’s needs and the ICT program recommendation was made in contradiction of the parent and the School teacher (Exh VI at 8). The parent’s attorney asserted that the ICT program could not be supported merely by consideration of the report card (Exh. 6), the social history (Exh. 7) and the psychoeducational report (Exh. 8) and the input of the School teacher who described the amount the student struggled in a small education class with a staffing ratio of (Exh. VI at 10). The parent’s attorney asserted that the ICT recommendation was not supported by the testimony and evidence presented at the hearing (Exh. VI at 11).

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 F.3d at 190; M.H., 685 F.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 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]).”

The parent’s attorney asserted that the CSE ignored the concerns of the School teacher and that the parent and the School teacher did not agree with the ICT recommendation (Exh. VI at 10). I note the parent’s assertion that the School teacher did not agree with the ICT recommendation was inconsistent with the testimony of the School teacher. I credit the testimony of the School teacher that she agreed with the CTT recommendation as the best option; however, she was concerned that the CTT setting was too large an environment and that student required more instruction (trans. 306). The SRO has ruled on the participation requirements of the parent 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 F. 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 IEP meeting as he reported that his son (trans. 337). The DOE attorney argued that the record established that the CSE team considered the parent’s “concerns about the student’s , including that the parent did not believe that the The DOE attorney argued that the CSE team considered how the student’s and recommending education services from a education the student throughout the (Id.). I find the parent participated in the CSE meeting and in the development of the IEP. I credit the parent’s testimony that he did not raise any objections with the ICT program and I credit the parent’s testimony that he did not tell the CSE team that the student needed to be in a program (trans. 356).

The DOE attorney argued in her closing brief that “the CSE relied on sufficient current data, including information from multiple documentary sources from the student’s teacher and parent when it developed the student’s March 19 2012 IEP”(Exh. V at 9). Testimony adduced at the hearing established that CSE reviewed and relied on the School report card (Exh. 6), (Exh. 7), the (Exh.8) and I find that CSE reviewed and utilized them (trans. 26-46). I find the April 20, 2010 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 a re or that the parents disagreed with the student's academic management needs or requested a re (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 levels of 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 levels (S.F., 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 closing brief that the CSE relied on the input of the School teacher as well as the parent in developing the IEP in addition to the written reports (Exh. V at 11). I credit the testimony of the district witness that the CSE team obtained the student current levels of academic and based on sufficient information to support its ICT recommendation and the recommendation was reasonably calculated to enable the student to receive educational benefits. The DOE attorney further asserted in her closing brief that the DOE met its substantive obligations under the IDEA by placing the student in the environment. The DOE attorney argued that “State regulations mandate that the recommended education programs and services are selected in order for the student to advance appropriately toward attaining the annual goals in the student’s IEP, to be involved and progress in the general education curriculum to the extent appropriate, and to be educated and participate with other students with and nonstudents in academic and non-academic activities. 8 NYCRR 200.4(d)(v)(a)(1-3); see 34 CFR § 300.114, 300.209(a)(4)” (Exh. V at 17). The DOE attorney maintained that there was no evidence in the record to establish that the student was unable to learn in the ICT class in the community school (Id.). I agree and find there was a discussion of other more restrictive programs considered and no member at the March 19, 2012 review objected to the ICT class in a community school and the ICT class in the community school was the environment.

The Second Circuit held in R.E. v. N.Y.C. Dep’t of Education., 694 F.3d 167, 186 (2d Cir. 2012) that “retrospective testimony’ is barred from consideration.” Id. at 186. The DOE establish that it can implement the IEP at the proposed placement. The parent’s attorney argued that R.E. does not foreclose the parent from challenging the appropriateness of the DOE’s recommended placement (Exh. VI at 13). However, I find that the parent did not establish that the recommended placement was not capable of implementing the IEP and I find that the parent failed to establish that ICT recommendation was not reasonably calculated to enable the student to receive educational benefits in the .

The parent’s attorney asserted that the parent did not receive the March 19, 2012 IEP and despite the events log (Exh. DD) that indicated that copy of the IEP was mailed to the parent (Exh. VI at 13-14). The parent’s attorney argued that there was inconsistent testimony from the district witness regarding the mailing of the final IEP and maintained that the DOE failed to establish a prima facie case of mailing the IEP (Exh. VI at 15). The DOE attorney argued that the fact that the parent received the IEP after the meeting did not result in a deprivation of FAPE and asserted that “school district’s must only ensure that a child’s IEP is in effect by the beginning of the school year and that the parents are provided a copy. Cerra 427 F.3d at 194, citing 34 C.F.R. § 300.345(f)” (Exh. V at 15). I credit the testimony of the district witness who stated that she mailed the IEP (trans. 21) and I find the DOE provided the parent with a copy of the IEP and the delivery of the IEP after the IEP meeting was not a deprivation of FAPE.

Based on the foregoing, I find the DOE’s counsel established that FAPE was provided during the 2012-2013 school year and I find CSE offered an appropriate placement for the 2012-2013 school year. Having found that FAPE was provided, I could stop my inquiry; however, I find that the placement at the was not appropriate. The parent has the burden to prove that the services they obtained for the student is appropriate to meet his . In order to meet that burden, the parent 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 education. The fact that the facility selected by the parent to provide educational services to the child is not State-approved as a school for children with is not dispositive of the parent’s claim for tuition reimbursement (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]). The parent must establish by a preponderance of the evidence that the unilateral placement provides “educational instruction specifically designed to meet the needs of the child.” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.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 education 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 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities (Carter, 510 U.S. at 10). The student need not be the environment (Frank G, 459 F. 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 F. 3d at 130). Parents need only demonstrate that the placement provides educational instruction ly designed to meet the 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).

The DOE attorney argued in her closing brief that there must be objective evidence in the record that the student substantially regressed while at the School or that the appropriately addressed the student’s needs (Exh V at 23). I agree and I find the record devoid of any evidence that the student substantially regressed while at the School. I credit the testimony of the School teacher who stated she believed that the School was an appropriate program at the time of the March 19, 2012 IEP meeting and that she and the School progress reports provided accurate information regarding the student (trans. 313). I find there was insufficient evidence to establish that the student at the School and required a residential placement. While parents are not held as strictly to the standard of placement in the environment 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 F.3d 96 (2d Cir. 2000).

I find that there was no evidence presented by the parents to establish how the met the academic, needs of the student. The testimony of the staff did not establish that the student’s program was tailored to the student’s education needs over the 2012- 2013. Testimony established that the student continued to struggle with organization and the interventions of frontloading and or pre-teaching were given to the all the students at the (trans. 286). Moreover, I find the record was replete with exampled of limited progress in the exhibited by the student. I find that testimony adduced at the hearing established that the student continued to struggle despite the interventions at the (trans. 175, 261-262; 279 and 290).

Based on the foregoing, I find that that the parents have not met their burden regarding the unilateral placement of the student at the for the 2012-2013 school year.

Having found that the parent’s placement is not appropriate, I do not need to determine the third prong of the test for tuition reimbursement, whether the equities favor the parent’s position. (see M.C. v. Voluntown, 226 F3.d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of the Dept. of Education, 12-069). However, I note it was undisputed that the parent did not tell the IEP team that the student required a residential placement and that he did not disagree with the ICT placement. The DOE attorney argued that the parent did not cooperate with the DOE’s efforts to provide FAPE. CSE by being forthcoming regarding the need for a residential placement for the student (Exh. V at 27). I agree.

ORDER

I therefore deny the parent’s request for direct funding for the for the 2012-2013 school year. Dated: September 20, 2013

_____________________________

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

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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 JUNE 13, 2013

1 Due process complaint, 3/11/13, 4 pp. DOE

2 Due process response, 4/17/13, 4 pp. DOE

3 IEP, 3/19/12, 14 pp. DOE

4 CSE meeting minutes, 3/19/12, 2 pp. DOE

5 School Report, 12/2012, 12 pp. DOE

6 Final Notice of Recommendation, 8/15/12, 1 p. DOE

7 Report, 3/30/10, 3 pp. DOE

8 , 4/20/10, 7 pp. DOE

I Decision on Extension, 5/7/13, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON JULY 9, 2012

E. plan, August, 2012, 1 p. Parent F daily schedule, 2012-2013, 1 p. Parent G Quint-1 schedule, 2012-2013, 1 p. Parent H Quint-1 progress report, 2012-2013, 4 pp. Parent I Quint-2 schedule, 2012-2013, 1 p. Parent J Quint-2 progress report, 2012-2013, 2 pp. Parent K Quint-3 schedule, 2012-2013, 1 p. Parent L Quint-3 progress report, 2012-2013, 1 p. Parent M Quint-4 schedule, 2012-2013, 1 p. Parent N Quint-4 progress report, 2012-2013, 2 pp. Parent O Quint-5 schedule, 2012-2013, 1 p. Parent P Quint-5 progress report, 2012-2013, 3 pp. Parent Q Intercession-1 schedule, 2012-2013, 1 p. Parent R Intercession-1 report card, 2012-2013, 1 p. Parent S Intercession-2 schedule, 2012-2013, 1 p. Parent T Intercession-2 report card, 2012-2013, 1 p. Parent U year-end report, 2012-2013, 1 p. Parent V Overview, 2012-2013, 2 pp. Parent W, 2012-2013, 1 p. Parent X enrollment contract, 8/22/12, 1 p. Parent Y invoice, 6/12/13, 1 p. Parent Z educators, 2012-2013, 1 p. Parent AA, fall, 2012, 1 p. Parent BB, spring, 2012, 1 p. Parent CC Parent letter to, 8/20/12, 6 pp. Parent DD SESIS addendum log, 10/26/11 to12/13/11, 2 pp. Parent II Decision on Extension, 7/9/13, 1 p. IHO (504 pages; Parents)

DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 12, 2013

III Decision on extension, 8/13/13, 1 p. IHO

POST HEARING SUBMISSIONS

VI Decision on extension, 9/12/13, 1 p. IHO

V DOE’s Brief, 9/12/13, 28 pp IHO

VI Parent’s Brief, 912/13, 22 pp. IHO

X enrollment contract, 8/22/12, 1 p. Parent