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: October 28, 2014

Actual Record Closed Date: November 9, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 28, 2014

For the Student:

, Advocate

, Parent

, Principal (Via Telephone)

, Psychologist (Via Telephone)

For the Department of Education:

For the Department of Education:

, District Representative

, Placement Clerk (Via Telephone)

, Psychologist (Via Telephone)

INTRODUCTION

On 08/27/2014, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).

A hearing was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Pre hearing conference was conducted on 10/02/2014 and hearing date was set.

This matter was instituted by the impartial hearing request dated 08/25/14 alleging that the Department of Education (DOE) failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement for the student, for the 2013-2014 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2013-2014 school year. (Ex A 1)

Relief sought includes funding or reimbursement for unilateral placement at the School ( ) and a finding that the student’s right to a FAPE was violated. (Ex A 1-4)

I note the documents, Consent to evaluate, was entered into the record with a date of 02/05/2013. Document is actually dated 11/03/2012, and signed by the parent 02/05/2013. (T 28, Ex 1)

BACKGROUND

The IEP in question, of 06/13/2013, includes the following: student , ending at , recent testing indicates range scores in all areas (Ex 9-1), often and requires , and and (Ex 9-2), , and teacher estimates of student of ad for (Ex 9-2), academic needs include class, / , , , , , (Ex 9-3), , and , , , , , has his own and (Ex 9-3), needs include , , , , (Ex 9-4), and , (Ex 9-4), needs include class with support services (Ex 9-4), recommendation, , , (Ex 9-10), instructional functional levels for and (Ex 9 13) , and modified promotional criteria for (Ex 9-14).

THE PARENT’S POSITION

( ) presented the parent’s position. contends the DOE failed to offer the student a FAPE for the 2013-2014 school year. DOE did not provide a classroom observation (T 174), the and were not appropriately formulated (T 176-178), a social history was not performed (T 178), and parent and school objected to the placement (T 178- 179). also contends the placement is appropriate based upon services provided and progress indicated in testimony. (T 183-185)

PARENT WITNESS

( ) reviewed her educational and professional background and testified as principal of . (T 68-69) reviewed basic information regarding , including: students are grouped according to age range and abilities (T 70), school caters, primarily, to children with and are employed, and oversees the academics and programs of the students (T 70- 71).

For the 2012-2013 school year the student: was in a class of students with teacher and student had an individual (T 72), had an individualize plan which worked on , , , and (T 74-75). were addressed with a program, , (T 75)

Program was successful for the student and he was motivated. (T 75-76)

At the beginning of the year most student issues were affecting his academics. (T 78) reviewed details of the students schedule. (T 82-96, Ex H)

Student made progress in and and responded well to the program socially. (T 84-85 & 93-94)

Student ended up in a group and a group of students. (T 86-87)

Student received related services of , and . (T 95-96) believes a class would not be appropriate for the student as classes she has seen mostly have students with academic delays and she did not see programs in those classes (T 98-99) and the class is for him to learn due to (T 99-100). contends the IEP is not appropriate due to a lack of dealing with . (T 100)

PARENT WITNESS

( ) reviewed her professional and educational background and testified as a social worker, and clinical director and counselor at . (T 118-120) provided to the student for the 2012-2013 school year. (T 120) utilized a fir the student and was not contacted by the DOE to develop an for the student (T 121) nor to attend or partake in the development of the student’s IEP. (T 126-127) believes the DOE is very general and not specific for the student’s needs. does not include anything that would address . (T 122) was advised of student and incident of . (T 123) does not believe the recommended placement is appropriate. Student tends to be and the counselor may not be available as needed by the student to deal with a situation. (T 127-128)

PARENT WITNESSS

( ), the student’s mother testified to concerns regarding her child’s during the 2012-2013 school year. (T 135)

Child had , and . (T 136)

When with peers, like summer camp, he t and could not go back to that camp. (T 137)

Student did attend a camp this past summer. (T 150-151)

Student is in his year at . (T 137)

The school has all different types of and is in touch with the parent. (T 137-138)

Parent recalls a discussion about student placement in a at the 06/14/2103 IEP meeting. (T 139-140)

Parent visited the placement but it “ ” told the team she had an issue with the recommendation which was similar to the previous year. (T 140) believes her child needs more individual , and the recommended program is . (T 141)

Parent identified letter of 09/17/2013 setting forth her concerns with the placement. (T141-142, Ex F) and the student’s father are responsible for payment of the tuition. (T 142-143) would have a hard time coming up with the tuition as her income is only a per. (T 143) Receipt of child support is “ ”. (T 147-148)

Total tuition is for the 2013-2014 school year. (T 144, Ex C & D) has not made any payments towards the tuition amount due for the 2013- 2014 school year. (T 147)

DEPARTMENT OF EDUCATION POSITION

( ) presented the DOE position at hearing. contends the DOE offered the student a FAPE for the 2013-2014 school year with an appropriate IEP. (T 161)

DOE WITNESS

( ) reviewed her educational and professional background and testified as a DOE placement clerk who mailed various correspondence to the parent and communicated with the parent regarding appointments with the DOE. (T 14-16) Correspondence included sending a Final Notice of Recommendation to the parent. (T 17)

DOE WITNESS

( ) reviewed her educational and professional background and testified as a DOE placement clerk who mailed various correspondence to the parent and communicated with the parent regarding appointments with the DOE. (T 14-16) Correspondence included sending a Final Notice of Recommendation (FNR). (T 17)

DOE WITNESS

( ) reviewed her educational and professional background and testified as a DOE School Psychologist, who attended the IEP meeting of 05/16/2014, a triennial review. “I reviewed his case for the last two years. In addition I once observed him in the classroom.” (T 26-27) sent the consent letter for new testing to the parent. (T 28)

Evaluations were conducted in May of 2013 having taken some time for the parent to respond to the request. Parent also missed several appointments. (T 28-29)

At the meeting of 05/16/2014 the team relied upon new psycho-educational testing (Ex 6), recent teacher’s progress reports (Ex 7), a progress report (Ex 7), an ( ) progress report, a progress report, and information parent and school provided. (T 29-30)

Information above was used in drafting IEP and creating goals which were reviewed at the meeting. (T 35-38) were in the range. (T 31) skills may be an area of relative weakness. (T 31)

Student was noted to be “ ” (T 31)

Student was classified and recommended to a setting. “ ” (T 32)

Goals were included to address student’s tendencies. (T 33-34) ( ) and ( ) were created and included. (T 34-35, Ex 10)

Regarding the recommended setting: “there's no reason why he shouldn't be able to function in a class. He would get the support he needs. It's a setting. They mentioned he responds well to and . Actually this child was actually being for of his classes that he was in a setting of kids. So definitely he could function well in a setting.” (T 40)

Understanding there are concerns the team wanted the student in the least restrictive environment. (T 41-42)

Regarding the actual placement of : “ ” (T 42)

At the meeting the mother wanted a setting for the child than the offered . (T 42-43)

Reasoning for the recommended placement included: “It was felt that based on his …didn't fit the profile for a child to be in a program. Although he had concerns this was a child that responded well . That environment would be too restrictive for him, and we felt that his needs could be best met in a school of a classroom setting. For the simple fact he made progress as well.” (T 43) had observed the student in 2012. (T 44) and were created at the meeting using the previous documents, current evaluation and reports along with parent and school input. (T 45)

Social history was not performed, instead psychologist included social history information in her report. (T 48-49)

Then current classroom setting of the student was composed of students, school utilized a , and the student was . (T 51-52)

At the meeting the school felt the student should remain in their school, believing the was . “…but we have to look at the children's overall progress, and he had made progress. It said in the school's report that he can be , he can . He . Yes, he can , but he responded well . So we felt that a of students would be too restrictive for him. He needed to be around children…“ (T 52-53)

Other programs were considered to be too restrictive a setting for the student. (T 53)

Regarding the prior written notice document (Ex 11) the witness states that it contains an error due to the fact that the system includes current information and the document is not a reflection of the document at the time it was created in June of 2013. Inclusion of a was added due to recent IEP meeting and was not included in the original document. (T 56-57) Date of the document was also noted to be an error. Document is dated 06/04/2013, prior to the IEP meeting. (T 59)

At the time of the IEP meeting parties did not feel the student needed a . (T 58-59)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (CSE) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206- 07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; 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 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 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]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability 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 Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

The parent bears the burden of proof concerning the appropriateness of their unilateral placement.

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364, quoting Rowley, 458 U.S. at 207 [identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364- 65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115, citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010])

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the 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. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364- 65).

Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07- 079; Application of the Dep’t of Educ., Appeal No. 07-032).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370- 71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]). DOE IEP and PROPOSED PLACEMENT for the 2013-2014 SCHOOL YEAR In developing the recommendations for a student's IEP, a CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]). However, neither the IDEA nor State law requires a CSE to "'consider all potentially relevant evaluations'" of a student in the development of an IEP or to consider "'every single item of data available'" about the student in the development of an IEP (T.G. v. New York City Dep't of Educ., 2013 WL 5178300, at * 18-*19 [S.D.N.Y. Sept. 16, 2013], citing M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *8 [S.D.N.Y. Mar. 21, 2013]; see F.B. v. New York City Dep't of Educ., 2013 WL 592664, at *8 [S.D.N.Y. Feb. 14,2013]).

In the instant case the DOE performed evalu ation in anticipation of the upcoming IEP meeting (T 28-29) and relied upon the recent testing, reports and input of attendees at the IEP meeting, which included the parent and student ’s current school. (Ex 6, 7, T 29-30)

This information was reviewed at the meeting and utilized in drafting the IEP. (T 35-38)

I find any failure by the DOE to perform a specific social history to be overcome by the detailed parentally supplied information contained in the Psycho-educational report. (Ex 6-1 & 6-2)

Parentally supplied information and testing information were reflected in the IEP. Information includes testing results finding the student performing in the range (T 31, Ex6-6 & 9-1), student (Ex 6-1 & 9-3), and concerns regarding student and (Ex 6-1 & 9-3).

Objections to the DOE IEP and offer of FAPE include testimony from who believes a class would not be appropriate for the student as classes she has seen mostly have students with and she did not see programs in those classes (T 98-99), the class is for him to learn due to (T 99-100) and the IEP is not appropriate due to a lack of dealing with . (T 100)

I find the reference to what the witness has seen in the past to be speculative and not of any weight regarding the recommended placement.

Witness also contends she has not seen programs in such classes. However, this student does have his own and . (Ex 10)

IEP does set forth concerns about student . IEP notes the student and and (Ex 9-2), at , and , , , , , and has his own and (Ex 9-3). goals are included to address and . Goals include “ ” (Ex 9- 8), “ ” “ ” “ ” (Ex 9-9). does not believe the recommended placement is appropriate stating the student tends to be and the counselor may not be available as needed by the student to deal with a situation. (T 127-128) Information relied upon at the IEP does not include any reference to the student being . Reference to availability of the counselor is speculative.

The DOE recommended placement was discussed at the IEP meeting with the parent. (T 139-140 & 42-43)

Parent visited the placement but it “wasn’t right for him.” told the team she had an issue with the recommendation which was similar to the previous year. (T 140) believes her child needs more individual attention, and the recommended program is . (T 141)

Student placement was with teacher in a class of students. (T 72), or as DOE witness believed students (T 51-52). No evidence was offered differentiating to any extent the ability to offer any needed individualized attention in such a class over the recommended placement.

IEP recommendation was based upon sound rationale. Student was evidenced to responded well to structure and IEP throughout included a variety of academic and management needs to address student’s individual educational needs. (T 43, 52-53 & Ex 9-4 & 9-4) ( ) and ( ) were created and included. (T 34-35, Ex 10)

Parent contends the and were not appropriately formulated. (T 176- 178)

While does implement a , none was presented at hearting.

Testimony did include that were addressed with a program, , (T 75)

DOE includes information regarding , , , , , and . (T 45 & Ex 10)

Witness properly reflected upon efforts to place child in the least restrictive setting (T 40-42)and communicated with the anticipated setting which resulted in a more complete IEP. (T 42)

I find that the IEP of 06/14/2013 to be appropriate for the student and the DOE to have offered a FPE to the student for the 2013-2014 school year.

The IEP accurately reflect the results of evaluations to identify the student's needs and does establish annual goals related to those needs.

IEP provides for personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction and the IEP is reasonably calculated to provide some meaningful benefit to the student.

ORDER

1. The claim is hereby dismissed. 2. This decision is subject to appeal and review by the State Review Officer.

Dated: November 17, 2014

, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

ENTERED 10/28/2014

A Impartial hearing request, 8/25/14, 3 pages

B Excluded

C letter of agreement, 8/29/13, 1 page

D Addendum to letter of agreement, 9/3/13, 1 page

E FNR, 8/4/12, 1 page

F Parent's letter to CSE, 9/17/13, 1 page

G Description of , 2013/2014, 1 page

H schedule, 2013/2014, 1 page

I End of year report, 5/2014, 4 pages

J IEP, 5/6/14, 16 pages

K Affidavit, 10/1/14, 1 page

L affidavit, 6/17/14, 1 page

M affidavit, 6/17/14, 1 page

N IEP, 12/16/13, 9 pages

DEPARTMENT OF EDUCATION

ENTERED 10/28/2014

1 Consent to evaluate, 11/03/2012, 1 page

2 Appointment letter for psycho-Educational evaluation, 3/11/13. 1 page

3 Appointment letter for psycho-Educational evaluation, 4/8/13, 1 page

4 Appointment letter for psycho-Educational evaluation, 4/23/13,1 page

5 Appointment letter for psycho-Educational evaluation, 5/8/13, 1 page

6 Psycho-educational, 5/31/13, 7 pages

7 Progress and goals from , 2012/2013, 10 pages

8 Notice of IEP meeting, 6/4/13, 3 pages

9 IEP, 6/14/13, 16 pages

10 / , 6/14/13, 5 pages

11 Prior written notice, 6/14/13, 4 pages

12 Events log, 12/12/13, 3 pages

13 FNR, 7/25/13, 1 page

14 Excluded

IMPARTIAL HEARING OFFICER

ENTERED 10/28/2014

I Notice of appointment and e-mail, 8/27/14, 3 pages