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: November 25, 2013

December 5, 2013

January 14, 2014

Actual Record Closed Date: February 28, 2014

Hearing Officer: Elise Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 25, 2013

Esq. Attorney — Student

Parents

CSE District Representative — DOE

Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 5, 2013

Esq. Attorney — Student

Father — Student

Director of Admissions, (via telephone) — Student

LCSW Clinical Director, (via telephone) — Student

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 14, 2014

Esq. Attorney — Student

Parents

CSE District Representative — DOE

INTRODUCTION: — DOE

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by ., the Parents (“Parents”) on behalf of Juliet B., the student (“Student”), through their attorney, , Esq. of the Law Offices of , by filing a Due Process Complaint dated September 20, 2013 with the District.

The Parent is alleging that their daughter, ., was denied a free and appropriate public education (“FAPE”) for the 2012-13school year and is seeking tuition for her unilateral placement at the for said year.

There were three (3) days of hearings in this matter. Hearings were conducted on November 25, 2013, December 5, 2013, and January 14, 2014. Extensions were granted in this case making the final compliance date March 10, 2014. A list of Exhibits is attached as Exhibit A. The Parents and District submitted exhibits in this matter.

BACKGROUND

This case involved a thirteen (13) year old student. During the 2012-13 school year, . attended where the Student was unilaterally placed by the Parents.

With respect to the 2012-13 school year, an IEP meeting took place on July 20, 2013 and the Student was found ineligible for special education services. The IEP team determined that . did not have a disability as defined in Part 200 of the Regulations of the Commissioner of Education. D-1. During the 2011-12 school year, . attended ( . 104).

The Parents entered into an Enrollment Contract for on June 22, 2012. P-H.

The Parents filed a Due Process Complaint on September 20, 2013. P-A. I was appointed as an Impartial Hearing Officer on September 20, 2013.

POSITION OF THE PARTIES

Parents’ Case

The Parents called four (4) witnesses, the mother; the father, and , and placed twenty-nine (29) documents in evidence. P-A – P-DD.

The first witness was . She is the Director of and Director of Admissions at The Summit School. Tr. 82. She is responsible for reviewing packets and applications and setting up appointments and meetings with parents. Tr. 83. The packets include the application, a neuro-psychological or psycho-educational evaluation, a copy of the current IEP, report cards, teacher reports, etc. Tr. 83.

She testified that is “an approved non-public school for children with special education needs including learning issues and/or emotional issues”. She stated that they are a highly academic school within a therapeutic environment providing related services of , as well as , for the lower school students. Tr. 84. She said that in some cases, the District places students if they think it is an appropriate fit and they cannot provide an appropriate education at their school. Tr. 84. The school takes children who have average to gifted intelligence but are unable to be successful in a mainstream setting. Tr. 85. They do not take children with severe behavioral or psychiatric issues. Tr. 85. A team reviews the packets and determines whether there may be an appropriate fit and then sets up an appointment to meet the student and parents and then the team determines if there is an appropriate placement. Tr. 86.

Ms. . because she applied to the school and she reviewed her packet and met with her. Specifically, Ms. reviewed the application, some school information and a letter from the psychiatrist. Tr. 87. The documents revealed that , capable student, very dedicated, very motivated, but highly, , to the point from really being able to function adequately in school”. She stated that she was perseverative about her homework, had sleep disturbances over it; and had meltdowns when she got less than an ‘A+’. Tr. 86-87. Ms. indicated that the Parent told her that during the time of State testing, she was in hysterics and they had . Tr. 88. She was also so anxious that the academic anxiety and perfectionistic tendencies . Tr. 88. Ms. testified that the information from the confirmed , her , and that it was . Tr. 89.

Ms. stated that cognitively and academically they . would be able to handle the academic rigor of the school and emotionally, it was a therapeutic school with counseling twice a week, small class sizes, and departmentalization for math and reading to accommodate her learning needs. Tr. 90. Ms. believed that required a school like Summit to meet her needs. Tr. 90.

On cross examination, Ms. stated that came for the interview she appeared to be very quiet and withdrawn, had limited or inconsistent eye contact, responses were short, and there was not a lot of affect and she . Tr. 94. Ms. indicated that her involvement . was limited to the interview and the application process. Tr. 95. She stated that she doesn’t have regular contact with her during the school day. Tr. 95.

Ms. stated that counseling is programmatic and she would have received it at least twice a week, once individually and once in a small group. It is provided by certified social workers and psychologists employed . Tr. 96.

The next witness was . She has been working since 1982, first as a social worker and now as an administrator. Tr. 100. She is a licensed certified social worker and is currently . Tr. 100. She supervises the clinical staff, supervises the behavior management program and participates in the management of the school. Tr. 100. There are four social workers and one psychologist on staff.

Ms. testified that is a New York State approved non-public special education school servicing youngsters who have educational classifications of learning disabled, emotional disturbance or . They are a 12:1:1.5 program which means there are 12 students, one teacher, one assistant and one half time assistant. Tr. 101. They incorporate therapeutic supports within an academic program and provide counseling, OT and as related services. Tr. 101. There are 250 students in the school; 120 in the lower school (ages eight to thirteen). Tr. 101. The student profile is a least average IQ and vulnerable, fragile youngsters. Tr. 102.

Ms. testified that the staff receives training in areas ranging from technology, Smart Board usage, behavior management, child development, common core and other topics pertinent to educating . Tr. 102. With respect to therapeutic supports, all of the students receive counseling once a week individually and once a week in a small group and the clinical staff is available to students and staff for consultation and as needed. They are on site full time and act as liaisons to families and ancillary services. Tr. 103.

Ms. is familiar . because she is a . Tr. 104. When . first came to school she was highly motivated to succeed, almost to excess. She was very concerned about whether she was achieving academically and because of that she in terms of grades and class participation. Tr. 104. When she first came, it was difficult for her to just come to school every day and her social worker worked with her and her mom to help her over a two month period. Tr. 104. She also presented initially somewhat disheveled with her hair in front of her face. Tr. 104. She did well academically, but at great cost to her because of her , and the in terms of her to her. Tr. 105. Ms. testified that she required a tremendous amount of therapeutic input on a daily bases from her counselor to help her through her misperceptions, her cognitive inflexibility, her rigidity which also affected her . Tr. 105. Ms. also stated that at the beginning of the year, she really wasn’t aware of were affecting , and her need on her . Tr. 105-106.

Ms. testified that she was when she first came and the staff had to engineer the room, the events, and the staff so she would socialize. For instance, they would give her a job as academic helper to someone and have her socialize that way and give her positive feedback to encourage her interactions. Tr. 107. They also did this with lunch privileges and encouraging her to go with a buddy. Tr. 107.

Ms. stated that she . was a child with a disability when she entered Summit because she wasn’t able to come to school without a tremendous amount of help and because of that she presented with. Tr. 108.

Ms. stated that . fits the profile of a student in that she is on or above grade level, but the cost of the academic work is very high for a student like her in terms of . Tr. 109.

Ms. is familiar .’s academic program for the 2012-13 school year since she has read her reports, knows her teachers and is in and out of the classrooms all the time. Tr.

109. They are an ungraded program. ’s placement is based upon last year’s testing information as they do no test youngsters until December. Tr. 110. Throughout the day, there is a schedule . that includes literature (which is reading), ELA (which is writing), math, science, social studies, art, gym and related services. Tr. 110. The purpose of homeroom is to get students organized for the day and it is also a social base. The students are together in the morning, at lunch and at dismissal. Tr. 111. All of the teachers at Summit are licensed, special education teachers. The age range of students in ’s class was within a two year range. Tr. 112. There were eleven students in each of her math and reading groups.

Certain modifications and supports were put in place across curricular areas to support . throughout the day. Tr. 113. When . receives classroom testing, she would have to leave the classroom and test in a quiet place where she wouldn’t feel that people were watching or judging her. Tr. 113. There are space interviews where an adult counselor or teacher meets with a student outside of the classroom to discuss what is going on and offer coping strategies rather than waiting for a counseling session. These were done with on a regular basis, before, during and after testing. Tr. 114. The teacher also monitored . for signs and provided her with refocusing techniques and specialized seating and the teacher would provide with special verbal acknowledgements for her academic achievement. Tr. 114. There were specific modifications of the math work and supplemental reinforcement . Tr. 115. The classes were extremely predictable and structured so she could predict what would occur in the classroom thereby minimizing anxiety. Tr. 115.

For therapeutic support, . received individual counseling, counseling in a small group (1:3) and a social skills class. Tr. 116. They also have a school wide positive reinforcement system that monitors student’s participation and behavior and achievement and one of the reinforcements for that is honor code, which is an acknowledgement of students who are role models in the school. . was able to earn honor code towards the end of last year and has earned it for this year. Tr. 116. The positive reinforcement system is based on a point card which encompasses six areas including on time, in area, homework, work, behavior and contract. Tr. 117. They need to earn a certain amount of points to go out for lunch, for club time, to purchase items in the school store, etc. Tr.

117. The reinforcement system is beneficial . because she earned honor code and has worked to sustain it. Tr. 118.

Ms. testified that there are therapeutic supports in place to assist . with social skills and friendships. This is done through collaboration between her counselor, homeroom teacher, and the subject teacher to put in place supports that are beneficial to J.B. Tr. 119.

All students have a departmentalized schedule but they are with the same students for social studies, gym and art. Tr. 119.

In order to . with her , the counselor works with and utilizes cognitive behavioral therapy. Since did not come with an IEP, the teachers have developed their own goals focusing primarily on , minimizing her anxiety and increasing her socialization. Tr. 121. Ms. testified that she has done nicely in working towards these goals. She has and she is beginning to take into consideration someone else’s perspective and is less insistent on holding on to her own perceptions. She is also working on forming a more accurate impression of what is going on around her and then understanding how her feelings affect her behavior. Tr. 122. . has made progress in her social relationships and has made some friendships. Tr. 123. She has made progress emotionally and does not need so much help coming to school, in fact travels independently to school on public transportation. Tr. 123. She has progressed with her and allows input from staff to help her move on. Tr. 123.

At the beginning of the school year, , a licensed social worker at least once a day, if not more and then towards the middle of the year, she was able to just utilize one session individually and a group session with another clinician. Tr. 125. The group clinician varies as do the students in the group. Tr. 125. They rotate these groups depending upon what the social relationships and needs are within the classroom. Tr.

125. This allows to take in different points of view and to learn to see herself a little bit differently. Tr. 125.

Ms. testified that the purpose .’s was to teach her cognitive flexibility, monitor her mood, help her with socialization and help her transition into the Summit School. Tr.

126. This was important because of and her to her own performance and to feedback from others, and to help her to have more accurate perceptions as to her own performance and what others expected from her. Tr. 127. J.B.’s counselors communicated with her class teachers to provide feedback for strategies in the classroom and to help counselors discuss issues that are based in the classroom. Tr. 127. The counselor had cognitive behavioral goals for . and has indicated that . has made progress towards these goals. PDD; Tr. 128.

Because the program is departmentalized at Summit for math, reading and ELA, she is able to be in the highest groups at the lower school. Tr. 130. She was supported emotionally due to her in all of her classes. Tr. 132. She was also encouraged to answer questions in class and take risks and not worry if her answer was incorrect. Tr.

134. The curriculum at Summit is aligned with the New York State curriculum. Tr. 133. . did not regress in any manner during the 2012-13 school year.

Ms. stated that when . started at Summit she did not have an IEP. At the end of June 2013 she participated in an IEP meeting for . for the 2013-14 school year. Tr. 137. She was given an educational classification of . and she believes she was referred to CBST. Tr. 137. Ms. testified that she believed that had a disability at the start of the 2012-13 school year. Based upon the definition of . (P-Z), Ms. testified that she did not have an inability to learn but she did have an inability to build or maintain satisfactory relationships with peers. Tr. 139. This was evidenced by her social isolation, her difficulty coming to school and communication with staff. Tr. 139. She also stated that she had “ ” which was evidenced by . Tr. 139. She also stated that although she cannot , her affect was one common to youngsters Tr. 140. She also had a tendency to develop physical symptoms or fears associated with personal or school problems which was evidence by her inability to come to school at the beginning of the year. Tr. 140. She stated that based on the record, these things were present for a long time and to a marked degree. Tr. 141.

Ms. testified that based on the fact . was school avoidant, there was an adverse educational impact for J.B. Tr. 141. Ms. also testified that the was experiencing interfered with her functioning within the classroom despite her good grades. Tr. 142. She said that ’s needs were present all year, and, in fact, had mitigated to a certain degree at the time of the CSE meeting in June 2013. Tr. 142.

In connection with the FBA prepared by the CSE (P-AA), Ms. stated that the behaviors on the document were expressed . during the year and all the supports listed, including consistent supportive intervention, were implemented . Tr. 143.

Ms. believes . was appropriately placed for the 2012-13 school year. She stated that she made progress, she made a friend, her anxiety was mitigated, she became able to trust adults enough to allow them to alter her perspective. In addition, there came a point where she was not only able emotionally to come to school but could travel independently to get there. Tr. 145. The small class size was important . because it allowed her to get adult input and feedback and provided her with the opportunity to form relationships with significant adults in the building. Tr. 145. She stated that she believed was the appropriate placement . for the 2012-13 school year and that she required the therapeutic component as part of her educational program. Tr. 146. Ms. indicated that there were positive role models in her class. She did not believe . would be appropriately placed with general education peers, because she needs the supports the school provides, the controlled environment, and the ability to monitor her interactions and socialization. Tr. 148.

On cross examination, Ms. testified that the maladaptation that J.B. was manifesting affected her academic participation, not her academic performance. Tr. 152. She stated that “testing, for her, is just a number and doesn’t talk about the entire process”. Tr. 153. She stated that affected her academic performance despite the fact that her grades were consistently good. She said that the grades came at a great cost to her. Tr. 154. She stated that she “ …you can they have we know with anticipatory her ability to come to September and October, and it required a tremendous amount of teacher support and during the school day to so she was not obsessively studying and worried about getting rather than throughout the entire school day.”. Tr. 155. Ms. grades do not tell the whole . because they are a reflection of her and as well as her intellectual potential. Tr. 160. Ms. testified that there was a cost to emotionally to get her grades and this was reflected in her inability to socialize, initiate conversations consistently with peers, to trust adults to advocate for herself, to and how . Tr. 161.

The next witness was the father. He stated that . is bright and can be very funny and has a unique way of looking at the world and people. Tr. 167. He said that she fixates on things and is hyper perfectionistic and not always in a good way. Tr. 167. For the 2011-12 school year she went to . Tr. 167. She did all right on her grades but was a nervous wreck all year. Tr. 167. He stated that it about every minor assignment she had. Tr. 168. He indicated that she had . Tr. 168. She did not take care of herself physically; she wore the same clothes every day and did not brush her hair or her teeth. Tr. 168. She definitely stood out. Tr. 168. They had a evaluation done for was suffering as was the whole family. He couldn’t believe that he behavior could be considered normal behavior. Tr. 164. Her when she got to middle school. Tr. 170. He stated that in middle school, there was a system where you could check your grades on line as soon as a score was up and it drove her crazy. Tr. 171. Somehow she got a hold of her teachers’ phone numbers and would call them ten to fifteen times. Tr. 171. He said that Dr. evaluation indicated that she needed a to deal with Tr. 171.

The father testified that they met with the CSE in July of 2012 and gave them a copy of Dr. . Tr. 172. The CSE basically told him at the meeting did not qualify for any kind of services. Tr. 172. He stated that they said that because her grades were good, she was educable and there was nothing they could do for her. He stated that there was no one at the CSE meeting that was personally familiar . tr. 173. He does not think they spoke to any .’s teachers. Tr. 173. He said he believed they made up their mind before he walked into the meeting because when he walked in they told him there was nothing they could do. Tr. 173. The team had all the .’s mother had given them including the neuro-psychological evaluation, the letters from , e-mails she wrote to her teachers, and he thought they had the report card. Tr. 174. They did not do a social history or an observation . Tr. 174. The IEP meeting was approximately ten minutes. Tr. 176. He stated that the only discussion that they had concerning classifications was that she didn’t fit into any them. Tr. 176.At the meeting, he mentioned to the committee that they were looking and that he knew that it was on their list of approved schools. Tr. 177. The team told him he could wherever he wanted but that it didn’t really have anything to do with them. Tr. 177. As he left the meeting they wrote down his address and indicated that they would get something in the mail. Tr. 177. He also stated that the people present at the meeting were not . Tr. 178. He never received anything following the meeting from the CSE, nor . Tr. 178. The father testified that he . needed a program like for the 201213 school year where she could get therapeutic attention. Tr. 179.

On cross examination the father testified that he would have . on alternate weekends and sometimes during the week and she would be totally fixated on homework to the exclusion of everything else, H stated encompass the whole weekend and in the end, the assignment could be something as simple as writing four sentences about something. Tr. 181. He also stated that she wouldn’t take the time to take care of herself in terms of her hair, brushing her teeth, and other . Tr. 184.

Her father stated on cross that her teachers gave her their number and she would call them about the assignments due the next day believing that there was only one right way to do the assignment. He stated that she wasn’t medicine, only an antihistamine at times to fall asleep. Tr. 186. He indicated that he did not have much contact with her teachers at .’s mother mostly handled that. Tr. 187.

The next witness was the mother. She stated that are academic and her weaknesses are . Tr. 196. For the 2011-12 school year, . attended M.S. 104. The mother testified that her relationships with her teachers were difficult. Tr. 197. With two teachers in particular, she would hassle them incessantly about homework and whether she was doing things right. Tr. 197. She testified that her . She would come home from school and cry and do homework from the time she walked in until she went to sleep and she would often e-mail her teachers and try to call them. Tr. 197. , she had no friends, she ate lunch alone and had no social engagements with others the whole year. Tr. 198. She would go on field trips with her daughter because she had no one to be with. Tr. 199.

The mother testified that they sent her to a psychiatrist three times a week because she was so upset all the time. Tr. 198. Over the course of the year, she became more and more stressed out and nervous. Tr. 199. She would not take care of her physical appearance and stated that she only had time for homework. The Parent would have to force her to shower, brush her teeth and comb her hair. Tr. 200.

The mother testified that the Student for the entire 2011-12 school year. Tr. 200. The mother communicated with her math and social studies teachers and they were very sympathetic and called the house on several Tr. 201 would use the online management system to e-mail her teachers and when they she was, they gave her their phone number and she called them. Tr. 201. The Parent would intervene and no call the teachers as much as she would have liked to. Tr. 201.

Although there were signs of issues in elementary school, there wasn’t as much of a focus in the school on grades. Socially, she was not fitting in and making friends but, at the same time, the school stated that she and there was nothing they could do. Tr. 203.

. The Parent testified that she tried to get her help for a long time but the school would say that she doesn’t have problems and . She stated that was very quiet and was not noticed in school; she would sit . Tr. 204.

In middle school, she would reach out to her math and science teachers because they were more responsive and their subject areas more intensive. Tr. 209. The mother testified that did not have any . Tr. 205.

The mother testified that during the 2011-12 school year, . was seeing a psychiatrist, Dr. Tr. 205. They found him after the first few weeks of school because J.B. was falling apart. Tr. 206. The psychiatrist felt . needed intensive therapy three times a week. He was and thought she needed to work . Tr. 206. He diagnosed her with extreme anxiety. Tr. 207. He also stated that she had hypotonia and required physical therapy. Tr. 207. The psychiatrist felt . wasn’t getting help but he didn’t know what else to do with her. Tr. 209. At this time, they were advised by other people and the school, to get her an evaluation, so they had Dr. do it. He spent 40 hours on testing and recommended a special school environment. He specifically recommended the Summit School. Tr. 209.

At home, she would consistently worry about her grades and homework. She would forego dinner, movies, etc., to do homework. Tr. 209. Her progressively worse as the 2011-12 school year progressed. Tr. 210. She would check the website with her grades incessantly and would say that she if she got below a 97. Tr. 210. Her social difficulties also got worse over the course of the year as did her self-care. Tr. 211. They had to trick her to get her to brush her teeth or shower. Tr. 211. They would have to tell her she couldn’t do her homework until she took a shower, etc. Tr. 211.

The mother testified that she tried to get the school to have a CSE meeting but they kept saying that she was a straight ‘A’ student and a good girl, not disruptive. Tr.

212. They finally were able to get the District to schedule a CSE meeting for July 2012. Tr. 212. She never met with her guidance counselor or a social worker at school. Tr.

212. She would go to school, then go to the psychiatrist, go home to her mother’s or father’s houses, to help her recover of going to school. Tr. 213.

The mother testified that . would send e-mails to her teachers and called them. The mother stated that she would try to control it because she didn’t feel it was appropriate or good for her to try to constantly contact them. Tr. 213. The mother indicated that the e-mails in Exhibit P-C are just a sampling of the e-mails she sent. Tr. 213.

At the July 2012, IEP meeting, . was not given an IEP. Tr. 214. The Parent did not agree with this because was not manageable and was falling apart. Tr. 215. After they were denied services, the mother started researching and trying to come up with options for . She went to look at and the principal said she could She did not want to take her out of the neighborhood school but she felt she didn’t have a choice. Tr. 218. The mother testified that she kept writing to the Districtn for help and did not receive responses. Tr. 218.

The mother then received a Notice for a Social History in January 2012. Tr. 219; P-E. This was the first response from the District. Tr. 219. She did not receive a response after this and sent a fax in March. Tr. 220. She received a response in May or June and then went to another CSE meeting. Tr. 221. Pursuant to Exhibit P-V, the District indicated that the attorney, Ms. , set up the meeting. Tr. 222. The Parent explained that they weren’t able to get the District to set up a meeting themselves and reached out to the attorney’s office for help. Tr. 222.

At the CSE meeting in June of 2012, the CSE recommended that J.B. get services at . was doing , though she was . Tr. 223. She had a social worker that was working with her at Summit, physical therapy and social skills groups. Tr. 223. The mother testified that . feels welcome and for the first time does not feel like an outcast. Tr.

223. She stated that her life. She indicated that although , it’s manageable and she has stopped saying she’s . Tr. 223. At the CSE meeting, the team classified . Tr. 225. They made this determination based upon how her behavior had been at M.S. 104 and how it continued to be . Tr. 225. She indicated that she is still having a harder time than others and requires all of the . Tr. 225. The Parent indicated that even though the social worker only meets with most students once a week, . seeks her out more often. Tr. 225. The mother testified that the issues that led to her classification at the June 2013 meeting were present during the 2011-12 school year. Tr. 225. In fact, she stated that because Summit was supporting her, “the problems were ten times worse” at the first CSE meeting in 2012. Tr. 225. The mother also indicated that the problems indicated in the Functional Behavioral Assessment (P-AA) were present during the 2011-12 school year. Tr. 226. She again stated that they were better than they had been due to the services and treatment she was receiving . Tr. 226.

The mother testified that they signed a Contract with the in June 2012 out of desperation. Tr. 227. She stated that they did not want their children to go to private school and always lived in neighborhoods with good public schools. Tr. 228. She further indicated that their oldest daughter was in the public school. Tr. 228. She stated that she has applied to public high schools . for next year and if she gets better, she hopes she can go back to a public school. Tr. 228. The Parent testified that the tuition for the 201213 school year has been paid in full. P-I.

The mother testified that the Student is doing a lot . She stated that she still has extreme needs but she’s not suicidal and she doesn’t go to the psychiatrist any longer. She goes to the social and after school she goes to a pottery class once a week and she recently started getting together with a friend from Summit. Tr. 230. Due to her high level of academics, she travels to another school to take a math class. Tr. 230. The Parent testified that during the 2012-13 school year, they worked on social skills and they support her all day. She is in a class with two teachers and twelve students. Tr. 231. She was receiving appropriate academic and social support during the 2012-13 school year. Tr. 232.

The mother testified that she believed was the appropriate setting the 2012-13 school year. She was functioning much better, wasn’t saying she was going , liked going to school, and did not come home and fall apart. Tr. 233.

J.B. was taking an antihistamine at night to help her fall asleep during the 2011-12 school year but no anti-anxiety medicine because was opposed to it. Tr. 234. For the 2012-13 school year, she was for the first half of the year. For the second half of the year, she would take it one or two nights a week when her anxiety was high, especially on Sunday nights. Tr. 234.

The mother indicated that ’s grades do not really reflect on how she’s actually functioning day to day. Tr. 234. She functions at a high academic level so her grades are always good regardless of what’s going on. Tr. 235. At . does not receive numeric grades and they don’t online, it’s a report that is sent home with overall grades. Tr.

236. . could not handle the constant input of quizzes and grades. Tr. 236.

On cross examination, the mother testified that she did not receive any report from M.S. 104 that was experiencing social and emotional difficulties. Tr. 237. Her reports were from her child. Tr. 237. She mentioned to the teachers at parent-teacher conferences about but they would say she was fine and that she was great. Tr. 239. She stated that each parent had three minutes with a teacher at parent-teacher conferences. Tr.

239. When J.B. came home from school, she would cry, shake and be unable to sleep. Tr. 240. Although J.B. discussed killing herself, Dr. didn’t feel that she was really going to do it or the Parent stated they would have taken her out of school sooner. Tr. 241.

The mother testified that when she called , she would mostly speak to the homeroom teachers. Tr. 245. District’s Case The District called one (1) witness, , and placed four (4) documents into evidence. D-1 – D-4.

Ms. is a social studies teacher at M.S. 104 Tr. 39. She is familiar because she was in her and special placement class for part of the year and then she left. Tr. 41. She stated that was a very high performing student and was able to complete all tasks when she started the year. Tr. 41. and she would get if she thought the work was a . Tr. 41. She would that she wasn’t going to get an assignment in on time even before it was due. Tr. 41. She said she spoke to her about being more flexible. Tr. 42. She recalls other teachers as well but she was always able to complete the assignments. Tr.

42. She stated that J.B. started the school year in 2011 with her classmates but left at some point during the year. Tr. 43. Ms. testified that would sometimes manifest itself if students were taking work out or they were writing down upcoming assignments. She would get emotional, and sometimes be in tears and Ms. would pull her aside and calm her down. Tr. 43. She stated that this was occurring at the beginning of the school year. Tr. 44.

Ms. stated . was in an “SP” class which stands for Special Placement. Tr. 44. She stated that in the SP class, the students would do all types of assignments, essays and presentations. Tr. 45. She stated . didn’t have the opportunity to do oral presentations since they were done towards the end of the school . was not there. Tr. 45. She indicated that they did have small group presentations where the group would choose a leader to present, however, . never took that role. Tr. 45. She was, however, involved with whole class participation, and when she was asked questions, responded to them. Tr. 46. Ms. testified that she gave, on average, 20 minutes of homework or studying a night. Tr. 46.

The teacher indicated that was in her classroom and did not appear nervous, she was on task, prepared, able to complete her assignments and able to work in a pair or a group. Tr. 48. Ms. stated that all students need a management plan with structured assignments and due dates, etc. Tr. 49. Ms. did not think was in in need of a management plan that you would typically find on an IEP. Tr. 49. Since she was able to hand in her assignments in a timely manner, she did not think a plan was necessary. Tr.

50. Her grade point average in Ms. s class was a or over. Tr. 50.

On cross examination, Ms. stated that she was .’s social studies’ teacher and had her for one or two periods a day because they have alternating schedules. Tr. 51. She saw her for eight to ten periods a week. Tr. 52. There are eight periods a day and one of them is lunch. Tr. 52. She was in a team and once a week, the teachers would meet and discuss students. Ms. stated that came up initially and then when she was removed, it was discussed again. Tr. 52. She stated that at some point during the school year, the student left but she doesn’t recall when. Tr. 55. Ms. stated that “she seemed to have had friends in the class” and got along with other students. Tr. 56. She stated that other cases were reported from the other teachers but she has no direct recollection. Tr. 57. . was worried about getting assignments in on time and meeting the time restraints. Tr. 58. Ms. Boerschig stated that her behavior was not common. Tr. 56. She said that she would give her extensions at times the first two months, but she would always get the assignments in. Tr. 58. She did not know how long it would take J.B. to complete assignments outside of school. Tr. 59. Ms. did not have a relationship with J.B. outside of class and she did not believe she had relationships with her other teachers. Tr. 60. When asked about e-mailing teachers, Ms. recalled that she did. Tr. 60. She stated . did not e-mail her constantly and if she did, it was not different than her other students. Tr. 61.

Ms. stated that was never referred to AIS. Tr. 62. She stated that she thought .’s mother had mentioned that was seeing a therapist during the year but she wasn’t sure. Tr. 64. She didn’t recall if the Parents shared any concerns at the parent-teacher conferences. Tr. 65. She stated that she may have at team meetings and being flexible with . and making sure she understood when things were due. Tr. 67. She believes . may have gotten extensions in her English class but she did not know to what extent they were given. Tr. 67. Ms. testified that with the modifications. Tr. 68.

FINDINGS

Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual 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. 1499[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]).

The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516 , 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. Of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see, Rowley, 458 U.S. at 189). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …affords the student with an opportunity greater than mere ‘trivial advancement’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 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 (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs (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), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 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 Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Childwith 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. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

The first issue that must be considered is the Parents’ position that the CSE should have classified the student as a student with a disability and that the District violated its “child find obligations.” For the reasons set forth below, I find that the District did violate its “child find” obligations and that the CSE should have found that J.B. was eligible for special education services.

The purpose of the “child find” provisions of the IDEA are to identify, locate, and evaluate those students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 436 F.3D 52m 65 [2d Cir. 2006] [holding that the purpose behind the “child find” provisions is to locate children with disabilities who are eligible for special education services who might otherwise go undetected]; see also 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.111; 8 NYCRR 200.2[a][7]). The IDEA places an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]; 8 NYCRR 200.2[a][7]; New Palz Cent. Sch, Dist. v. St. Pierre, 307 F. Supp.2d 394, 400, n.13 [N.D.N.Y. 2004]) The “child find” requirement applies to “children who are suspected of being a child with a disability…and in need of special education, even though they are advancing from grade to grade” (34 C.F.R. § 300.11[c][1]; 8 NYCRR 200.2[a][7]). To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children (Application of a Student Suspected of Having a Disability, Appeal No. 09-132; Application of a Child with a Disability, Appeal No. 07-062; Application of a Child Suspected of Having a Disability, Appeal No. 05-090)

The Parents contend that the District should have suspected that the student had an emotional disturbance and should have classified J.B. A student with an emotional disturbance must meet one or more of the following five characteristics:

(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(C) Inappropriate types of behavior or feelings under normal circumstances,

(D) A general pervasive mood of unhappiness or depression.

(E) A tendency to develop physical symptoms or fears associated with personal or school problems. (34 C.F.R. § 300.8[c][4]; see 8 NYCRR 200.1[zz][4]). Additionally, the student must exhibit one or more of the five characteristics over a long period of time and to a marked degree that adversely affects the student’s educational performance (see N.C. v. Bedford Cent. Sch. Dist., 2008 WL 4874535 [2d Cir. Nov. 12, 2008]; see also Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282 [S.D.N.Y. 2010]; A.J. v. Bd . of Educ., 679 F. Supp. 2d 299[E.D.N.Y. 2010]).

First it is clear that the Student was experiencing severe anxiety issues both in school and outside of school during the 2011-12 school year. Although I find Ms. hardly credible since she insisted that at some time during the second half of the school year (and she did not), she did testify that she was aware . was at the beginning of the school year and that she had heard about her anxiety from other teachers. Tr. 52; Tr. 57. She testified that her behavior was not common (Tr. 56.) and that with the modifications. I credit the testimony of both Parents and Ms. that her significant anxiety was impacting her ability to function in school. Proof of her obsession with her school work was in the emails she sent to her teachers and her constant need to call them, her threats , and her inability to socialize with others or form relationships.

Based upon the hearing record, . met criteria (B)(C),(D), and (E), with respect to the criteria required for a student to be classified with as . First, with respect to criteria (A), . suffered from “an inability to build or maintain satisfactory relationships with peers and teachers”. The mother indicated that she had no friends and did not fit in socially. Ms. testified that there was a to get good grades and this was reflected in her inability to socialize and initiate conversations. Tr. 161. Ms. stated that this was evidenced by her social isolation, her difficulty coming to school and communicating with staff. Tr. 139. The mother also stated was not noticed in school and would sit in the corner and not engage. Tr. 204. The only interactions she had with her teachers were in response to her emails and phone calls. It was clear from both the Parent and Ms. ’s testimony, that even though she was in her class for eight to ten periods a week, she had no relationship with her, nor with her other teachers. Tr. 60. The fact that she did not know that . was in her classroom for part of the second part of the year is indicative of this.

In connection with characteristic (C) involving “ or feelings under normal circumstances”, her hyper focus on her grades and studying to the exclusion of all else and her obsession with maintaining her GPA were indicative of and feelings as was her discussions if her grades declined. In addition, her failure to take care of herself by brushing her teeth, combing her hair and changing her clothes due to her involvement with studying and her obsession with school was inappropriate. Ms. testified that her inappropriate behaviors were evidenced by her tremendous anxiety. Tr. 139. With respect to characteristic ( D), her Parents both indicated that she was depressed which was indicated by her neglecting her physical appearance, not participating with her peers, etc. Dr. specifically diagnosed . with “Adjustment and .” P-S. The CSE had Dr. ’s diagnosis and letter at the July 2012 IEP meeting. Although Ms. cannot diagnose students, she stated that was common to youngsters with depression and anxiety. Tr.

140. With respect to characteristic (E), Dr. unrealistic and intense worries and anxiety result in sleep problems, and interferes with school work as well as her interactions with parents, siblings and peers. P-S. In this regard, Ms. . had a tendency to develop physical symptoms or fears associated with personal or school problems which was evidenced by her inability to come to school at the beginning of the year. Tr. 140.

It is clear based on the record met most of these criteria at the time of her CSE meeting on July 11, 2012 (D-2) and for the preceding 2011-12 school year and these characteristics continue to affect her. In addition, these characteristics which are associated with an “must adversely affect the child’s educational performance.” 34 CFR 300.8 (4)(i). The District has indicated that since was achieving consistently high grades, and that if she were, in fact diagnosed with emotional disturbance, her emotional disturbance was not adversely affecting her educational performance. It was there position, however, that she was not a child with a disability. The Parents, on the other hand, argued that educational performance should not be limited to grades and that her grades come at a tremendous emotional cost to her. Ms. testified that are reflective of her and came at a great cost to her and this was reflected in her inability to socialize, initiate conversations, trust others, caused by her profound anxiety affected her academic participation and engagement and even her ability to go to school. Tr. 152. Based upon the foregoing, educational performance ’s situation does not only include academic performance but also a student’s ability to adapt successfully to a school environment. In this instance, it is clear that conditions impede her educational performance.

Whether a student’s condition adversely affects his or her educational performance such that the student needs special education, within the meaning of the IDEA is an issue that has been left for each state to resolve. (J.D. v. Pawlett Sch. Dist., 224 F.3d. 60, 66[2d Cir. 2000)]. Cases addressing this issue in New York State appear to resolve this issue on a “case-by-case’ basis.(Corchado v. Bd. of Educ. Rochester City Sch. Dist., 86 F. Supp. 2d 168, 176 [W.D.N.Y. 2000][holding that each child is different and the effect of each child’s particular impairment on his or her educational performance is different]; see Muller v. E. Islip Union Free Sch. Dist., 145 F.3d 95, 103-04[2d Cir. 1998]; N.C. v. Bedford Central Sch. Dist., 473 F. Supp. 2d 532, 543 [S.D.N.Y. 2007]; New Palz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 399 [N.D.N.Y. 2004]). While consideration of a student’s eligibility to receive special education and related services should not be limited to a student’s academic achievement (34 CFR 300.101 [c]; 8 NYCRR 200.4[c][5]; see Corchado, 86 F. Supp. 2d at 176), evidence of psychological difficulties, considered in isolation, will not itself establish a student’s eligibility for classification as a student with an emotional disturbance (N.C., 473 F. Supp. 2d at 548). Moreover, as recently noted by the U.S. Department of Education’s Office of Special Education Programs (OSEP), “the term ‘educational performance’ as used in the IDEA and its implementing regulations is not limited to academic performance” and whether an impairment adversely affects educational performance “must be determined on a case-bycase basis, depending on the unique needs of a particular child and not based only on discrepancies in age or grade performance in academic subject areas.” (Letter to Clark, 48 IDELR 77)

Although not dispositive in this case, it must be noted that for the 2013-14 school year, the CSE found that . should be classified with based upon the same characteristics she was experiencing during the 2011-12 school year. P-Z; P-T. on the hearing record, it should also be noted that ’s by the end of the 2013 school year according to Ms. and her Parents, yet the classification was still appropriately made at that time. Furthermore, Ms. testified that all of the behaviors on the FBA prepared by the District for the 2013-

14 school year were exhibited by the Student during the 2012-13 school year. Tr. 143.

Based on the foregoing, I find that the District erred in finding that J.B. was ineligible for classification for the 2012-13 school year. Accordingly, the Student was not provided with FAPE for the 2012-13 school year. Therefore, it is necessary to look at the second and third prongs of the three pronged test set forth by the United States Supreme Court in School Committee of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. 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 (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]). Issue 1I-Appropriateness of Parental Placement

Under the second prong of Burlington, the Parents bear the burden of proving the appropriateness of the Parent’s unilateral placement of J.B. at Summit for the 2012-13 school year. In order to meet that burden, the Parents must show that Summit offered an educational program designed to meet J.B..’s special education needs. Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112. “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). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010). It should be noted, however, that while evidence of progress is relevant, it does not establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”])

The Parents have met their burden in showing was an appropriate placement for the 2012-13 school year. In order to meet their burden, the Parents must show that Summit offered an educational program that enabled the child to receive educational benefit. Summit is an approved special education nonpublic school for children with special education needs including learning issues and/or emotional issues. They are a highly academic school within a therapeutic environment. They are a program and incorporate therapeutic supports in the classroom and provide related services including counseling. Ms. testified that . fits the profile of a student since she is bright but the cost of her academic work is very high in terms of her and self . received individual counseling, and a social skills class during the 2012-13 school year. Tr. 116. Certain modification and supports were put in place to support throughout the day including a quiet room for testing and a space interview before, during and after testing to gauge anxiety and to give her coping strategies. Tr. 114. In addition the teacher monitored for signs of and provided her with refocusing techniques and specialized seating. They also provided modifications to her math work with supplemental material to reduce anxiety. They worked on her socialization and engineered certain situations to encourage her ability to interact with her peers. Tr. 107. According to Ms. and her Parents, he has made progress at Summit during the 2012-13 school year. Her counselor has indicated that she has made progress in meeting her goals and and increasing her socialization. Tr. 121. She is of what is going on around her and understanding how her feelings affect her behavior. She has made progress in her relationships and no longer needs help in getting to school. Tr. 123. She also has progressed with her perfectionism and allows input from staff to help her move on. Tr. 123. Ms. specifically stated that there were positive role models in .’s class and that she did not believe . would be appropriately placed at this time with general education students because she needs the supports the school provides, the controlled environment and the ability to monitor her interactions and socialization. Tr. 148. The Parent also testified that she believes that is appropriate for her child since she is functioning much better, is going to school and likes it, is not coming home , and is making friends. Tr. 233 She said that during the 2012-13 school year Summit provided with appropriate academic, social and emotional support. Tr. 232.

Based on the foregoing, it is clear that . with educational instruction specially designed to meet her unique needs and she is benefitting from the instruction and receiving educational benefit. Therefore, I find the Parents have met their burden in proving the appropriateness of . for the 2012-13 school year. Issue III-Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents never inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 USC 1412 (a)(10)(C) (ii).

The father attended the CSE meeting for the 2012 -13 school year and provided the District with all of its letters and evaluations for their review. They continued to send letters during the year requesting a follow up CSE meeting until one was schedule at the end of June, 2013. Based upon their actions, in terms of equitable considerations, I find that the Parents cooperated with the District and analysis of equitable considerations offers no basis to rule against them.

Based upon the foregoing, I find that the District did not provide FAPE to J.B. for the 2012-13 school year (Prong 1); the program was appropriate (Prong 2), and equitable considerations support the Parents’ claim (Prong 3). Accordingly, the Parents are entitled to tuition reimbursement for the 2012-13 school year at the .

ORDER

Based upon the foregoing, it is hereby

ORDERED, that the District shall, upon submission by the Parents of proof of payment of ’s tuition costs at for the 2012-13 school year, and proof of .’s attendance at Summit for said year, shall reimburse the Parents for the tuition paid for the 2012-13 school year, in a sum not to exceed thirty thousand ($30,000) dollars. Dated: March 10, 2014

___________________________

ELISE B. KESTENBAUM, ESQ.

Impartial Hearing Officer

EBK:gc

PLEASE TAKE NOTICE

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

No. Date Document Pages

A. 9/20/2013 Impartial Hearing Request 4

B. 8/21/2012 Parent Letter 4

C. 9/12/2012 Parent Letter 3

D. 10/9/2012 Parent Letter 3

E. 1/18/2013 Social History Notice 1

F. 3/14/2013 Parent Letter 2

G. 3/15/2013 Parent Letter 2

H. 6/22/2012 Contract 1

I. 9/21/2013 Affidavit of Payment 1

J. misc. dates Proof of Payment 6

K. 2012-2013 Attendance Record 1

L. 2012-2013 The School –

Schedule 1

M. undated The Description 2

N. 8/27/2013 Memorandum of Notice of Securement 1

O. 9/12/2013 NPS IEP 11

P. 9/12/2013 Final Notice of Recommendation 1

Q. misc. dates E-mails from . to teachers 5

R. 3/30/2012 Letter from Dr. 1

S. 6/27/2012 Letter from Dr. 1

T. 6/27/2013 IEP 12

U. 6/27/2013 Notice of IEP Meeting 5

V. 6/27/2013 CSE Minutes 5

W. 2/6/2013 Social History Update 2

X. 6/24/2013 Classroom Observation 1

Y. VOID

Z. 6/27/2013 Justification 2

AA. 6/27/2013 Functional Behavior Assessment 1

BB. 6/28/2013 Behavior Intervention Plan 1

CC. 6/2013 Progress Report 11

DD. 12/2012 Counseling Report 2

Department of Education Exhibits

1. 7/20/2012 Letter from District

re: Ineligibility for Special Education 2

2. 7/11/2012 IEP Meeting Notice 5

3. 6/30/2012 Evaluation 7

4. 2012-13 Midyear Evaluation Report 4