Impartial Hearing Decision

DECISION ORDER

Case Number:

Student’s Name:

District: .

Hearing Requested By: Parents

Hearing Officer: Martin J. Kehoe III, Esq.

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parents as Parents and the student will be referred to as Student. This is a reimbursement case that covers mid 2012/2013 and the 2013/2014 school year.

Parents’ Position

The Parents’ position is that the District failed to properly classify the Student as early as

1999. (Ex. 205-4) They claim that the Student was diagnosed with yet the District failed to consider the classification of . (Id.) The Student is currently classified as The Parents’ central claim is that the District failed to provide the Student an appropriate program and placement during the 2012/2013 and 2013/2014 school years. (Id.) The Parents argue specifically, that the District admitted it could not meet the unique needs of the Student. (Id.) Despite this admission, the District failed to offer an appropriate placement during the 2012/2013 school year. (Id.) As a result, the Parents were forced to unilaterally place the Student during that year. (Id.) Thereafter, the Parents allege that the District failed to conduct an adequate search for an appropriate school. (Id.) The Parents argue that they sought help from the District during the summer of 2012, but their pleas were ignored. (Id.) The Parents allege that out-of- district placements were first discussed on January 15, 2013, but the Committee on Special Education (CSE) failed to send letters of inquiry until June 27, 2013. (Id.)

The Parents argue that the Private School is an appropriate placement, as it is designed to meet the unique needs of the Student. (Id. at 5) The Private School provides services necessary for the Student to benefit from instruction, and it provides around-the-clock residential services that the Student requires. (Id.)

Lastly, the Parents argue that the equities weigh in their favor. (Id.) Specifically, the Parents argue that they made every effort to meaningfully participate in the CSE process.

(Id.) By contrast, the District ignored the Parents’ attempts to work together. (Id.) The Parents allege that they provided notice to the District ten (10) or more days before placing the Student at the Private School during the 2012/2013 school year, and again before doing so for the 2013/2014 school year. (Id.)

District’s Position

The District communicated its position at the hearing beginning on March 13, 2014. (Tr.

12) With respect to Prong I, the District argues that the Student made academic progress while in the District’s program. (Id.) The District admits that the Student suffered from anxiety, as well as significant, issues. (Id. at 13) Despite the Student’s unique needs, the District argues that it was able to provide the Student with instruction until the 2011/2012 school year. (Id.) At that time, the Student’s component became something the District was not equipped to accommodate. Accordingly, the District made a determination that the Student needed an out-of-district placement. (Id. at 14) The District argues that a diligent search for an out-of-district placement with a strong therapeutic component was initiated at that time. (Id.)

On this point, the District claims that it secured an appropriate placement for the Student; the Parent’s simply disagreed with it. (Id.)

With respect to Prong II, the District maintains that the Private School is not an appropriate placement because it is not on the list of state-approved schools. (Id. at 15) In addition, the District argues that the Private School does not offer a therapeutic component. (Id. at 16)

The District argues that the equities weigh in its favor because the Parents refused to look at any program that was not residential. (Id. at 18) The Parents would not consider any non-residential program regardless of whether it had a therapeutic component, which the District maintains is something that the Student needs. (Id. at 18)

Student History

The Parents allege that the Student was first classified in preschool during the 1996-1997 school year. However, the documented record in this case really begins with the April 24, 2006 Individualized Education Program (IEP). (Ex. 74) The Student was classified therein as (Ex. 74-1) The IEP listed areas of significant weakness, to include:

reading comprehension, social skills, and math computation. (Id. at 3) For the Student’s sixth (6th) grade year, the CSE recommended a 12:1:1 classroom for five (5) hours per day, with related services such as a 1:1 aide; (Id. at 1)

The following year, the CSE reconvened on or about April 13, 2007 to plan for the Student’s seventh (7th) grade year. (Ex. 78) That IEP basically noted the same areas of weakness, and made the same recommendations. (Id. at 1-5)

The Student was administered a WISC-IV Evaluation in the fall of the next school year

(2007-2008). (Ex. 83) A November 2, 2007 report indicated that the Student’s verbal comprehension; perceptual reasoning; working memory; and full scale IQ were (Ex. 83-1) The Student’s highest rank in any category was the percentile.

The CSE met almost immediately after that evaluation on or about November 7, 2007.

(Ex. 84) The Student remained classified as (Id.) The IEP repeated the same recommendation as the April 13, 2007 IEP. (Id.) reports were issued in early 2008 while the Student was still in grade. (Ex. 87; 88) The report indicated that the Student’s receptive language skills were in the moderately range. (Ex. 87) Her expressive language was in the average-to-

range. (Id.) The report suggested that the Student should no longer receive (Ex. 88) The Student’s next IEP was developed on or about March 23, 2009.

(Ex. 89) The March 23, 2009 IEP was created while the Student was in eighth grade; that IEP was intended to govern the Student’s ninth grade year (2009/2010). (Id.) The IEP made many of the same recommendations, such as a 12:1:1. (Id.) The data noted was derived from the Student’s evaluations spanning the years 2003-2008. (Id. at 4-5)

The CSE met the following year on or about March 8, 2010, while the Student was in grade. (Ex. 96) That IEP was basically identical to the one preceding it. (Id.)

The Student was administered a psycho-educational evaluation in the following school year (2010/2011)—while she was in tenth ) grade. (Ex. 109) The Student’s verbal comprehension was in the percentile, which was her perceptual reasoning was in the ) percentile, working memory was in the ) percentile, processing speed was in the percentile, and her full scale IQ (“FSIQ”) was . (Ex. 109-6) This FSIQ ranking put her in the , range. (Id.) This evaluation also noted a caution rating for the Student’s Index. (Id. at 13) The Student expressed her belief that her classmates did not like her; that they did not like to be with her; that someone else controlled her thoughts; and that she did things over and over and could not stop. (Id.) The evaluator recommended that the Student continue to receive services. (Id. at 16) This report was issued on or about April 5, 2011.

(Id. at 1) The next IEP was developed for the 2011/2012 school year on or about the following day. (Ex. 110) In preparation for ) grade (2011/2012), the CSE recommended that the Student remain classified as (Ex. 110-1) A 12:1:1 class was recommended, along with therapy. (Id.) This IEP also recommended services ten (10) times per year for thirty (30) minutes each session. (Id.)

These recommendations were meant to be implemented during the Student’s

( ) grade year. (Id.)

The CSE reconvened two (2) times during the Student’s ) grade year and amended the Student’s grade IEP. (Ex. 114; 115) On or about February 23, 2012, it was recommended that the Student attend a special class (15:1:1) for social studies, and a special class (12:1:1) for reading. (Ex. 114-1) The recommendation for services was continued, but reduced to eight (8) times yearly.

(Id.) The recommendation for therapy was also renewed. (Id.)

The CSE reconvened about two months later on or about April 30, 2012 to amend the Student’s eleventh ( h

) grade IEP yet again. (Ex. 115) The IEP drafted on that day switched the 15:1:1 placement in social studies to a 12:1:1. (Ex. 115-1) A 12:1:1 placement was reselected for all other subjects. (Id.) The CSE reconvened again on or about June 21, 2012 to plan for the Student’s grade year (2012/2013). (Ex.

119) This is the first year in question—where later, in February 2013, the Parents allege the Student was deprived of a Free Appropriate Public Education (FAPE.) The CSE recommended that the Student attend a 5:1 resource room program and a special class (15:1:1) for social studies. (Ex. 119-1) It was also recommended that the Student continue with services, and therapy.

(Id.) In addition, the June 21, 2012 IEP provided for transition services. (Id. at 14) The Student would receive the opportunity to attend a vocational training program, and complete an ACCES/VR application. (Id.) The Student was also to receive assistance through Liaison Services, and the opportunity to participate in different community clubs and organizations. (Id.)

The Student was administered a private assessment on or about August 27, 2012. (Ex. 122) The evaluator confirmed the observations of the Student’s long term that the Student was developing behaviors. (Ex.s 122-4, 150)

This was likely the product of a combined with factors, such as . (Id.) The report made suggestions in the form of contingency plans if the Student were unable to return to the classroom in her then-current state. (Id. at 5) Among these ideas was the option for a non-Regents diploma, and tutoring services outside of the public school. (Id.)

Another ) grade IEP was created after this assessment. (Ex.

125) Notably, the Student’s time was enhanced to twice per month. (Ex. 125-1) The special 15:1:1 social studies class was recommended again. (Id.)

This same recommendation was also made for English. (Id.) therapy was continued at a pace of two (2) times per every six-day cycle. (Id.) The Student was administered a re-evaluation on or about November 6, 2012. (Ex. 131) The report noted that the Student’s conceptual behavior was lower functioning than most children her age. (Ex. 131-6) The same was true for her social adaptive behavior and her practical adaptive behavior. (Id.) In a letter dated November 16, 2012, the District published a document supporting the idea of an out-of-district placement. (Ex. 133) As early as December 29, 2012, referrals to alternative high schools were made. (Ex. 134; 145) The CSE met again and developed a third, ) grade

IEP. (Ex. 137)

This third, ) grade IEP was created on or about January 15, 2013. (Id.) This time, the CSE recommended instruction in the form of consultant teacher services at the (Ex. 137-1) Three different sets of each one (1) time weekly for two (2) hours. (Id.) services and therapy were both continued at the same pace set forth in the previous IEP. (Id.)

The Student was re-evaluated in the following month—on or about February 5, 2013.

(Ex. 144) This report was largely based on the Student’s feelings about herself; the results therein are derived namely from self-assessment. (Id.) The Student described the ideas she believed herself to be capable of, and other things she felt incapable of. (Id.)

The Student expressed that she felt incapable of explaining how she learns best. (Ex. 144-

3) She could not state what she wanted to learn or what she believed to be her rights as a person with a disability. (Id.) The Student also explained that she could not stay on a work schedule or time plan. (Id.) On February 5, 2013 the Parent wrote to the then, CSE Chair indicating the Parents’ intent to unilaterally place the Student in the Private School and seek reimbursement for the cost of tuition. The CSE reconvened in the wake of these events. (Ex. 146)

On or about February 20, 2013, a fourth (4th) IEP was developed for the Student’s

) grade year. (Id.) The CSE recommended a special 8:1:1 placement in an Out-of-

District School. (Ex. 146-1) In the Comments section, it was noted that the Student had been able to participate in community-based activities, even while receiving (Id. at 2) In the meantime, the Student was unilaterally placed.

On or about June 21, 2013, the CSE reconvened to develop an IEP for the Student’s second (2nd) year of ) grade, or in other words, a year. (Ex.

156) That IEP repeated the prior IEP’s recommendation for a special 8:1:1 class in an

Out-of-District School, with , and therapy. (Ex. 156-1) Another IEP—the last on record, was created on or about August 19, 2013. (Ex. 201) Therein, the CSE made the same recommendations for the Student. (Ex. 201-1)

Discussion

A board of education may be required to reimburse parents for their expenditures for private education 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). This framework may be referred to as the Burlington/Carter Test. The first prong of this test; whether the services offered by the board of education were inadequate or inappropriate, is the proper heading under which to consider the alleged violations in this case.

Prong I

The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S.

176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir.

1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175- 1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104

(D. Minn. 1998) (citing Rowley) This straightforward obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR

200.6[a][1]).

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; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2dCir. 2012]) "'[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.

Classification

I turn now to the instant case and consider whether the District failed to properly classify the Student (as early as October 7, 1999). (Ex. 205-4) The Parents argue that the results of an October 7, 1999 evaluation included a diagnosis of (Id.) Therefore, the District should have considered a disability classification of as early as October 7,

1999. (Ex. 205-4) I note that the Student’s disability classification documented by every IEP offered into evidence is

A board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE. (Application of a Child with a Disability, Appeal No. 94-16) The Regulations of the Commissioner of Education provide the foundation upon which appropriate determinations may be made by defining various categories of educational disability classifications. For example, a classification of other health-impairment means:

having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance (34 C.F.R. § 300.7[c][9]; 8 NYCRR 200.1[zz][10]).

In contrast, a classification of requires:

a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if the student's educational performance is adversely affected primarily because the student has an emotional disturbance . . . A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied (34 C.F.R. § 300.7[c][1]; 8 NYCRR

200.1[zz][1]). In this case, many of the Student’s characteristics noted in the record seemingly match the requirements for a disability classification of In addition, testimony was offered throughout the hearing to suggest that a disability classification of would have been proper. For instance, the Student’s twelfth (12th) grade testified that the Student shared the types of traits that are identifiable as being on the (Tr. 218) A rendition of each statement made on the topic of the Student’s disability classification is unnecessary. Here, it is appropriate to note that I am bound by the four corners of the Complaint Notice. (Ex. 205) There, the Parents essentially argue that the October 7, 1999 evaluation supported a different conclusion than the one drawn by the CSE. (Id. at 4) That evaluation was not offered for the record. I note also that the heart of the Parents’ complaint is the District’s alleged failure to meet the unique needs of the Student during the 2012/2013 and 2013/2014 school years. (Id.) I find that the District did not fail in its obligation to properly classify the Student.

However, in dismissing this claim, I recommend that upon the next meeting of the CSE, the matter be reviewed anew.

Programming

I consider next whether the District failed to provide the Student with an appropriate program and placement during the 2012/2013 and 2013/2014 school years. (Id.) This is the Parents’ central claim. (Id.) The Parents argue specifically, that the District admitted it could not meet the unique needs of the Student. (Id.) Despite this admission, the District failed to offer an appropriate placement during the 2012/2013 and 2013/2014 school years. (Id.)

2012/2013

The District acknowledges that the Student developed a condition. (Tr. 14)

The District agrees that her condition caused her to have unique needs. (Id.) In light of the Student’s unique needs, the District admits it could not provide her with a FAPE. (Id.)

As a result, the District began seeking an out-of-district placement for the Student during the 2012/2013 school year. (Ex. 221(rejection letter from a day program); 222 (invitation to Out-of-District School (the ultimate CSE recommendation)); Tr. 14)

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (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 with a Disability, 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The relevant evaluative materials in my analysis are the teacher and parent rating scales (Ex. 131); the Justification for the out-of district search (Ex. 133); and, the private psychological assessment obtained by the Parents in the summer of 2012. (Ex. 122) The rating scales indicate that the Student is fragile and in all areas of adaptive behaviors. Noteworthy, in the “Justification” document, was the following:

The Student reported having increased experiences of seeing a spirit body around living things. She demonstrated increasingly complex and emotionally intense reactions to the points where here anxiety and distress made her participating in her special education environment unsafe. Of particular concern were her inability to differentiate reality from fantasy and her stated desire to separate the physical from the spiritual self.

The assessment conducted during the summer of 2012 encapsulates the fragile state of this Student, which was already well-known. (Ex. 122, Tr. p. 49) That evaluation noted that the Student always had a vivid imaginary world capacity, and by the fifth (5th) grade was reporting auditory hallucinations and confusion between her imaginary and objective worlds. (Ex. 122-1) The Student, then years old, told the evaluator that she was always able to “see spirit.” (Id.) The Student had even been administered screenings in effort to determine if her atypical were the result of (Id. at 2) The Student’s mental status was assessed as (Id. at 3); and her behavior was easily triggered when not on her medication. (Id. at 5) The evaluator recommended an educational setting that minimized the likelihood of process in the form of distressed visual delusions and/or hallucinations to emerge.^[1] (Id.) The evaluator suggested that the Student would benefit from the development of life skills.

(Id. at 6) Independence practice should also be implemented. (Id.)

These documents and their contents were known to the CSE when the Out-of–District

School was recommended in the February 2013 IEP. (Ex. 146 IEP dated February 20, 2013) The Parents rejected the Out-of-District School because it was not a residential placement; there was no vocational program or a school-to work program2 (Tr. 266- 267

& 1007); and the testimony was convincing that the overall environment would not be conducive to helping the Student. (Id. at 1005-1013)

Federal and state education laws do not require a school district to provide the best possible educational program and related services, nor match these laws require the District to provide those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). However, the District must demonstrate the appropriateness of the program recommended by its CSE.

(Application of a Child Suspected of Having a Disability, Appeal No. 93-9. I find that the District did not demonstrate the appropriateness of the recommended placement. To the contrary.

The risk associated with an improper placement of this Student was extremely high. The

Student’s long term (followed the Student since 2007) testified that during the year preceding, the referral to the Out-of-District School the Student was “fractured” and ”; on the verge of a departure from reality that would have severe long term consequences if not prevented or mitigated. Her opinion was supported by the extensive objective testing of The Private whose findings are in the record and were before the CSE Ex. 122). Moreover, the related the creditable impressions of the Student that the Out-of-District School was a poor fit in terms of environment and sound. (Tr. p.881) For these reasons, adequate assurance of the 2 My understanding of this fact is not completely clear. It appears that there was no vocational element at the Out-of -District School but that the CSE Chair was “lobbying” to have this included with the Out-of District School. (Tr. p. 1007) Student’s well-being was appropriate in this case. This type of assurance did not accompany the recommendation offered by the District.

Worse, the District knew that the Student was not even attending school before the 2012/2013 school year. (Ex. 150) The Student was removed from school at the discretion of a medical doctor. (Id.) The student was under the doctor’s care while experiencing inexplicable anxiety which resulted in agitated behavior that was not manageable in a school setting. (Id.) It is in this context that the CSE recommended the

Out-of-District School. (Ex. 146) That school was described by the Parent as an unstructured environment. (Tr. 1010) The school was once an old office building that was converted into a school; its classrooms were small and cluttered; all available wall space was used—creating a distracting environment for a Student like this; and lunch was delivered to the students by a truck, and they ate in the gym. (Id. at 1010-11) In light of this picture painted by the Parent, I find that the overall environment was not suitable for a Student already driven to as a result of inexplicable anxiety.

Additionally, the Parent testified that upon leaving the recommended placement, the public school verbally admitted to being very disappointed in the Out-of-

District School. Again, I credit the Parent’s testimony. (Tr. 546-547 & 1008) I find that the District’s recommendation was not sufficient to afford the Student a FAPE during the 2012/2013 school year.

2013-2014

Since the District renewed this inadequate recommendation with the June 21, 2013 IEP (Ex. 156), and continued it on August 19, 2013. (Ex. 201) I find that the foregoing rationale is likewise applicable to the 2013/2014. Accordingly, I find that the Student was not offered a FAPE during the 2013/2014 school year. I therefore resolve Prong I in favor of the Parents.

Prong II

I now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

“ . . . [P]arents 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir.

2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d

Cir. 2006]

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

The Parent bears the burden of proof with regard to the appropriateness of the educational program in which the Student was enrolled. (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-027) In order to meet that burden, the Parent must show that the Private School offered an educational program that met the Student’s special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 02-027). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining entitlement to an award of tuition reimbursement

(M.S., 231 F.3d at 105; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st

Cir. 2002]).

This case is unique in that the Parents selected a Private School that the District argued was not on a list of schools approved by the state. However, a private school placement need only be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370) 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;)

Parents seeking reimbursement simply "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. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S.

at 207 and identifying exceptions]).

I begin by noting that the Private School is not an appropriate placement merely because it is a residential school. I find that the Private School is an appropriate placement because it accommodates the Student’s vital needs; it guards the Student’s fragile state, while providing educational development. At the Private School, the Student has a school assigned to her as a personal mentor. (Tr. 747) The Student is able to meet with the mentor once per week, or on an as-needed basis. (Id. at

752) The Student’s and social needs are addressed with therapeutic horseback riding, among other things. (Tr. 764) The Private testified that this activity was especially helpful for teaching the Student how to connect, interact, and bond with others. (Id. at 764-65)

In the summer leading up to the 2012/2013 school year, the evaluator recommended an educational setting that minimized the likelihood of process. (Ex. 122) The Parent testified that the Private School was a structured environment, where the Student was kept on task. (Tr. 1014) I find compelling the Parent’s testimony regarding the school-to-work program, in which the Student worked in a bakery and reported to a mentor, while being given concrete tasks. (Id.) This is likely the type of environment that would minimize the chance of process. In addition to safeguarding this Student, there is a record of educational development at the Private School.

The Student was issued a Progress Report in April, 2013, shortly after starting at the Private School. (Ex. 9) Overall, the Student began making progress almost immediately.

(Id.) The Student was issued another Progress Report on or about December 6, 2013. (Ex.

10) This report was extensive, and the document speaks for itself. (Id.) Though, I note generally that the Student continued to make improvements, and there is no evidence of regression. (Id.)

Upon the information before me, I find that the Private School placement, with a structured environment, and a program created for Students like the one in this case is appropriate. Therefore, the Parents met their burden of proof with respect to the second of the three criteria.

Prong III

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).

Tuition 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 child 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. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d])

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 in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])

In this instance, there is no evidence to suggest that the Parents failed to give adequate notice. In fact, the District was involved with helping the Parents find an out-of-district placement for the Student. (Exhibits 208-216) Finally I address a two month period when the Student was moved into a day program rather than the residential program. Apparently there is a cost differential. This difference in price shall be borne by the Parents who are in the best position to negotiate the refund/discount from the Private School.

It is therefore ORDERED

That the District reimburse/pay the Parents/Private School for one hundred percent of the tuition at the Private School upon the presentation of proper invoices for the payment/cost of such tuition3.

Dated: December 29, 2014

So Ordered,

___________________

Martin J. Kehoe III, Esq.

Impartial Hearing Officer

3

Less the price difference between the two month day rate vs. residential rate.

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 the 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 viewed. 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 to the 25- for 35-day period.” (8 NYCRR §279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal 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.

Footnotes

[1] The Student would likely be highly challenged if asked to continue her education in a public high school setting, even if it is a small class environment. (Ex. 122-5)