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: May 8, 2014

September 8, 2014

September 29, 2014

Actual Record Closed Date: November 1, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 8, 2014

Parent of — Student

Parents

- Esq. Attorney Associated with the, Attorneys for Parent — Parents

District and New York City and Department of Education Representative — DOE

School Psychologist at the C.S.E. -Participated in C.S.E. Meeting of 2-4-13 (by phone) — DOE

Assistant Principal at (by phone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 8, 2014

Parent of Student — Parents

- Esq. Attorney Associated with the, Attorneys for Parent — Parents

Ph.D. Head of Schools at (by phone) — Parents

School Psychologist at (by phone) — Parents

District and New York City and Department of Education Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 29, 2014

Parent of Student — Parents

- Esq. Attorney Associated with the, Attorneys for Parent — Parents

Student’s Class Head Teacher at during the 2013-2014 school year (by phone) — Parents

District and New York City and Department of Education Representative — DOE

The Matter of , (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York, on May 8, 2014, September 8, 2014 and September 29, 2014 for hearings on the merits of the case. The proceeding was commenced by Student’s Parents and , by the filing of a Due Process Complaint Notice sent on Parents’ behalf by the to the New York City Department of Education’s Impartial Hearing Office, dated October 30, 2014. The undersigned was, after the recusal of an Impartial Hearing Officer previously assigned, appointed by the Impartial Hearing Office to preside over this matter on November 5, 2013. Thereafter a Corrected Due Process Complaint Notice was field by the same Law Office, this dated March 13, 2014 and received by the New York City Department of Education’s Impartial Hearing Office on that date. It appears that the correction related solely to the address of Parents.

Upon the conclusion of the hearing on September 29, 2014, both parties requested the opportunity to submit Post-Hearing briefs. Such requests were granted as long as such briefs were submitted no later than close of business on October 27, 2014. Each party timely submitted a Post-Hearing brief and each has been read and considered. The Record Close Date was November 1, 2014.

Parents allege in their Corrected Due Process Complaint (Exhibit 1b) that District and the New York City Department of Education failed to offer Student a free, appropriate public education (FAPE) for the 2013-2014 school year, on both procedural and substantive grounds. Specifically, Parents assert:

That Student’s then-teacher, who was participating in the Committee meeting on February 4, 2013, by telephone, did not have an opportunity to see the Annual Goals as written; as also was the case with other staff members of Student’s private placement who were also participating by telephone;

That Parents were denied meaningful participation at the Committee meeting that prepared Student’s Individualized Education Program (I.E.P.) for the 2013-2014

school year;

That Parents did not receive a copy of the I.E.P. at the close of the meeting, but only after it had been typed and sent by mail;

That the Annual Goals and short-term objectives were vague and provided no baseline; should have incorporated strategies and curriculum being used by Student’s then-school;

That, although Parent inquired about the use of and the manner in which a request for an Evaluation might be made, Parents were given no information on how to assess such technology; and that such denied Parents meaningful participation in the meeting;

That the gravity in Student’s needs was not accurately reflected in the Committee’s I.E.P.; and

That the Committee failed to assess Student’s vocational skills, aptitudes and interests Parents also assert that the placement offered to Student for the 2013-2014 school year was inappropriate in a significant number of ways, including:

That the school was ;

That it lacked a ;

That the space is and ;

That the school appeared to not have to address the level of Student’s needs; and

That the proposed class did not offer an appropriate peer group.

The Student whose educational program was reviewed in this proceeding is presently , having been born on However, at the time that the 2013-2014 school year commenced, Student was

According to Parent, Student is a child, but does not have academic skills to support or (T.R. 441). According to Parent, Student has, since birth, displayed , but has been classified as , as Parents have gone through a variety of procedures to identify the cause for such, but have never been provided with a proper diagnosis (T.R.440). According to Parent, Student has always had and (T.R.441). Student attended for and , where Student was placed in a with a staffing ratio of with Related Services. However, according to Parent, she was asked to remove Student from that program as it could not meet Student’s needs (T.R.443-444).

The Record has no information as to where Student received her education immediately thereafter. However, according to Witness , the Head of School at School, Student has attended that program for – the 2011-2012 school year, - the 2012-2013 school year - and , graduating from the School in June of 2014 (T.R.208). School Psychologist testified that she had been involved in creating Student’s I.E.P. since the 2008-2009 school year, when Student was at the School before moving to

.

A Psycho-educational Evaluation of Student was performed on November 14, 2012 by . Ph.D. The evaluator utilized the – ( ), the results of which indicated that, in all domains,

Student performed in the Range. Specifically, Student achieved a

Score of , indicating

; a of , indicating an ,

; a of , indicating

ability to , ; a

Score of , indicating inability to and

. Student evidenced a Full Scale IQ of . According to such Report, Student performed in the Range on all Tests of – – . The Report of a / Evaluation of Student, performed on December 5, 2012, noted that Student displayed abilities in skills, specifically ,

, and . It also noted Student’s in

(Exhibit 8).

On February 4, 2013, District’s Committee on Special Education (C.S.E.)

convened to prepare Student’s Individualized Education Program (I.E.P.) for the 2013- 2014 school year. Participating in that meeting were Special Education Teacher ; , who served as both District Representative and School Psychologist; Parent Member ; Parent ; and , a School Psychologist at the . Also Participating, but by telephone, was , Student’s then-classroom teacher at School. As a result of that meeting, the C.S.E. issued an I.E.P for the 2013-2014 school year for Student, that continued Student’s classification as and recommended that Student be provided with a program and receive her special education program in a in a Special School having a staffing ratio of , with times per week, together with the Related Services of time per week, minutes per session, ; times per week, minutes per session, and per week, minutes per session, in a group; times per week, minutes per session, , and per week, minutes per session, ; and

/ times per week, minutes per session, , and times per week, minutes per session, . The Committee also recommended that Student receive the services of a , , for . The Committee also recommended that, to address Student’s Management needs, Student receive ; ; ; ; and ; ;

; and a .

The I.E.P. also contained a number of Annual Goals and Short-Term Objectives (Exhibit 13). Thereafter, by document dated May 25, 2013, Parents were issued a Final Notice of Recommendation that offered Student her program at (Exhibit 17). By correspondence dated August 15, 2012 – some one and one half months after enrolling Student at for the 2013-2014 school year - Parents’ attorneys wrote to C.S.E. Chair, advising that Parents rejected the I.E.P. created by the C.S.E. for Student, as well as the placement offered, and that Parents intended to place Student at for the 2013-2014 school year unless the Committee cured its procedural and substantive errors and offer Student an appropriate placement (Exhibit A).

As previously noted, by correspondence dated October 30, 2013, Parents’ attorneys filed

Parents’ initial Due Process Complaint (Exhibit 1a), seeking public funding for Parents’ unilateral placement of Student at for the 2013-0214 school year on the ground that District and the New York City Department of Education failed to offer Student a free, appropriate public education.

It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parent’s claim. Such prerequisites were established by the United States Supreme Court when considering claims for reimbursement brought by parents who had unilaterally placed their disabled child in a private facility. (School Committee of the Town of Burlington v.

Departm ent of Education, M assachusetts, 471 U.S. 359 (1985); A pplication of a Child with a Disability , Appeal No. 01-052). Further, it was later held that the fact that the facility selected by the parent to provide special education services to the child had not been approved as a school for children with disabilities by the state agency would not be dispositive of a parent’s claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). In both decisions, the Court noted that:

“Parents who unilaterally place a student

in a private educational facility … do so

at their own financial risk”

(see 471 U.S. 359 at 373)

Further pronouncements made thereafter by various courts expanded the concept of reimbursement to one of prospective tuition authorization (Connors v. Mills, 34 F. Supp

2d 795 (N.D.N.Y. 1998) and even to retrospective tuition payment (Mr. sand Mrs. A. v.

New York City Department of Education, Civ. 09-5097 (S.D.N.Y. 2011). However, in all of the decisions expanding on reimbursement, the Burlington Prerequisites were maintained.

Burden of Proof

Generally, in applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented, that I first determine whether or not the School District offered to the student a free, appropriate public education. The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404). Under the guidelines established by Burlington and Carter, should I determine that District offered Student an appropriate educational program, my inquiry into Parents’ request would cease at that point, for if a district has offered an appropriate program, a parent’s right to the requested relief must be denied. Under the same guidelines, if it is determined that District failed to establish the appropriateness of its program, I must then determine the appropriateness of the Parents’ unilaterally-selected educational facility. The burden of establishing such appropriateness rests upon Parents (N.Y.S. Education Law §4404).

Should Parents fail to establish the appropriateness of the unilaterally-selected facility, Parents’ request for relief must be denied. If the unilaterally-selected educational facility is determined to be appropriate, I must, because the awarding of any relief is possible only by an invocation of the equitable powers inherent in the proceeding, then review the equities in order to determine whether equitable considerations favor an award of any relief to the Parents. It is my determination that the burden of establishing that such equities favor an award of tuition reimbursement or, as here, other relief, rests upon

Parents.

DISCUSSION

Essential to any determination of an entitlement to reimbursement is whether the agency responsible for a student’s education provided that student with a free, appropriate public education (FAPE). But what, exactly is a free, appropriate public education?

Courts on various levels and quasi-judicial officers have, through the years, expressed differing guidelines for determining exactly what FAPE is and how such is to be determined. It has been stated that a FAPE is offered to a student when (a) a 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]). However, such statement is no longer exactly accurate, for, 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., 2008 WL 5505470, at *4 [2d Cir. Jan. 16, 2009]; Grim v.

Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent.

Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA as amended, 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 Parent' 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 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; 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]).

It has also been stated that an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R.

§ 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 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 Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.

93-9).17 The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see P. v. Newington Bd. of Educ., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). A school district may be required 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 also20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak 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 Parent" (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 Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). It is this last requirement – that the IEP must be "reasonably calculated to provide some 'meaningful' benefit" - that will guide my review in this matter.

As noted, District bears the burden of establishing that it offered Student a free, appropriate public education (N.Y.S. Education Law §4404(1)(c). District presented the testimony of Witness , the Committee’s School Psychologist, who had presided over the Committee meeting that created the I.E.P. with which Parent disagrees; and

Witness , who, as Assistant Principal of defended the sufficiency of the placement offered Student.

Witness testified that she had served as both the District Representative and School Psychologist at the February 4, 2013 meeting, which was conducted to prepare Student’s special education program for the 2013-2014 school year. Also present at that meeting, according to the testimony of Witness , was , a Special Education Teacher, Parent Member , , a School Psychologist employed by , and Parent . Also participating by telephone was Student’s then-classroom teacher . Ms testified that the Committee had before it the Psycho-educational Evaluation that had been conducted by Dr. on November 14, 2012 (Exhibit 4; the Evaluation that had been conducted by on November 226, 2012 (Exhibit 5); the Report of a Classroom Observation that had been conducted by School Psychologist on November 28, 2012 (Exhibit 6); the / Evaluation that had been conducted by on December 5, 2012 (Exhibit 8); the Evaluation conducted by Ms. - on December 20, 2012 (Exhibit 9); a Report by , Psy.D., dated January 21, 2013 (Exhibit 12); an – (

Interpretive Report, which Witness explained had been prepared at the (T.R.26) (Exhibit 18); and a School Progress Report for the first trimester of the 2012-2013 school year (Exhibit 19). The Committee, according to Ms. , also had Student’s I.E.P. for the previous school year before it at the February 4, 2013 meeting..

Witness described the conduct of the Committee meeting of February 4, 2013, noting that the Committee reviewed the results of the Psycho-educational Evaluation conducted by Dr. , noting the results showed across all domains. Indeed, it was the testimony of Witness that the extent of such delays prompted a discussion that perhaps Student should receive the classification of , as Student’s scores were the mean on the measure of both (T.R. 45-46). However, according to Ms. , Parent found this upsetting, so that the Committee retained the Student’s classification as (T.R.46). When Discussing

Student’s ability, the Committee noted the scores reflected in Dr. ’s Psycho-educational Report, but was more reliant on the input from Student’s classroom teacher , who provided information to the effect that Student was and was, essentially, not (T.R.46). The Committee proceeded through the Reports, noting that Student had not only , but also concerns arising from Student’s – for which the Committee recommended a - and social concerns, including Student’s and her propensity to (T.R.49). The Committee prepared Student’s Individualized Education program (Exhibit 13), including in its description of Student’s Present Levels of Performance, the information contained in Dr. ’s Evaluation (Exhibit 4); the ’s Report (Exhibit 5); the / /’s Report (Exhibit 8) and the information provided by Student’s classroom teacher. The Committee also reflected the submitted information to describe Student’s Social, Physical and Management needs. I find all comments to be an accurate reflection of the information provided to the Committee.

The Committee also created Annual Goals and Objectives to meet Student’s needs. A review of such reveals that the Committee created only three academic Annual Goals; one each for the development of basic skills; one for the development of basic skills and one for the development of basic skills. The Committee also created four Annual Goals, with a number of Short-Term Objectives;

Annual Goals, also with Short-Term Objectives;

/ Annual Goals; and Annual Goals.

The Committee recommended that Student receive her special education program in a in a Special School (a program), having a staffing ratio of , with times per week; together with the Related Services of , per week, minutes per session, ; times per week, minutes per session, and per week, minutes per session ; times per week, minutes per session, and per week, minutes per session, ; and / times per week, minutes per session, and times per week, minutes per session, . Also, provision was made for a to assist in . The

Committee also provided guidance in meeting Student’s Management Needs by recommending ; ; ; ; and ; ;

; and a .

As indicated, Parents have raised a number of challenges to the appropriateness of the special education program established by the Committee in its recommendations for Student for the 2013-2014 school year. First, Parents have alleges that neither Student’s classroom teacher Ms. or other staff members of did not have the opportunity to see the written Annual Goals. I find such objection to be without merit. First, there were no other staff members of who were participating by telephone – only Ms . Also, while the Annual Goals were formulated during the discussions had by the Committee and were derived, for the most part, from written reports before the Committee, they were reduced to writing after the meeting. I note that the minutes of the Committee meeting (Exhibit 15) reflect that the academic goals developed were based on the information contained in the Report and the input from the classroom teacher. I also note from those Minutes that Ms.

left the meeting before its conclusion.

Parents also allege that they were denied meaningful participation in the meeting.

I find no basis for such allegation. Testimony provided by Parent described her involvement at the meeting, noting her participation in discussing the Goals developed and the review of the reports before the Committee (T.T.446-447). The Minutes of the meeting (Exhibit 15) notes questions asked of Parent and her responses. Further, those

Minutes state: “Asked Parent any concerns academically, socially a& physically. Parent’s concerns included on the IEP.” Indeed, the I.E.P. contains a statement of Parental

Concerns (Exhibit 13).

Parents also have alleged in their Due Process Compliant that they did not receive a copy of the I.E.P. at the meeting, but only after it had been typed and sent by mail.

Again, such allegation is without merit. There is no requirement that the Committee, after completing its meeting to discuss Student’s needs and develop its recommendation, that it proceed to type up the document and present it to Parents.

Parents have also alleged that the Annual Goals and Short-Term Objectives developed by the Committee were vague, provided no baseline, and should have incorporated strategies and curriculum being used at . While the Annual Goals contained in the I.E.P. are somewhat vague, it is my finding that the Short- Term Objectives are sufficiently specific to correct any vagueness in the Goals. As to those Annual Goals that do not have Short-Term Objectives, such Goals have been taken from the Related Service providers’ Reports. I further find that the Academic Goals contained in the I.E.P., although few in number, were sufficient to provide Student’s teacher with the areas of need to be addressed. Student’s delays, I find, need not be addressed in a large number of Annual Goals. To the extent that such Annual Goals should have been tied to a baseline, it is my finding that such was unnecessary given the additional information contained in the I.E.P. regarding severe limitations.

Parents have raised in their Due Process Complaint the fact that, while a question was raised regarding the use of and inquiry was made as to how an evaluation ,might be obtained, they were provide with no information as to the manner of securing access to such technology, resulting in a denial of meaningful participation in the meeting. Again, it is my finding that such allegation is without merit. Witness testified that, in discussions regarding how Student’ needs might be met, the topic of was mentioned and a discussion followed as to how an evaluation might be obtained (T.R.58). While Ms noted that Student had no devices and never had such assigned to her, she testified that she had advised Parent as to the procedure (T.T.59). Parent confirmed in her testimony that she was told of the steps necessary (T.R.456).the allegation that Parent was denied meaningful participation in the meeting is, I find, baseless. Moreover, such in no way impacted upon the appropriateness of the I.E.P. developed by the Committee or of the program offered to Student.

Parents allege in their Due Process Complaint that the gravity of Student’s needs was not accurately reflected in the I.E.P. created by the C.S.E. on February 4, 2013. Again, I find such allegation to be without merit.

Student’ educational needs have been addressed in the I.E.P. and in its recommended placement. I also note that the Committee, when deliberating on the placement of Student, decided against placement in a setting, “.. .because [Student] can function and benefit from more peers within the classroom.” (Exhibit13). The I.E.P. also notes the Social Development Needs of Student, including the fact that Student does not

, .

Finally, Parents assert in their Due Process Complaint that the Committee failed to assess Student’ vocational skills, aptitudes and interests. The Commissioner’s Regulations require, in part, that students age twelve shall receive an assessment that includes a review of school records and teacher assessments, and parent and student interviews to determine vocational; skills, aptitudes and interests (8 NYCRR 200.4(b)(6)(viii)). Witness noted in her testimony, that the Committee took no steps to determine such assessments, as such were done once students reach the age of – and that she did a vocational assessment with a parent .”… for kids who are or who are turning

” (T.R.100). Witness also noted that neither Parent nor anyone at the meeting of February 4, 2013 request such assessment (T.R.100) – and that none was necessary for Student “at this time”, as Student “would be in school until she is - . She’s got years to go. There is plenty of time to address this” (T.R.100). However well-intentioned, the Committee’s failure to have had a vocational assessment completed violated the provisions of the above-cited Regulation. However, while such failure constitutes a procedural violation, considering the severity of Student’s deficits and her age, I find that such procedural violation doe not rise to the level of denying Student of her right to a free, appropriate public education.

Parents have also challenged the appropriateness of the placement offered to Student for the 2013-2014 school year at (Exhibit 17)., including that the school was ; lacked a ; ;

; and that the proposed class did not offer

Student . However, Parents had enrolled Student at on June 26, 2013 (Exhibit C) – after Parents had received District’s offer of placement, dated May 25, 2013 but before Parent visited the proffered placement during the Summer Session (T.R.460). As has been oft repeated by the Courts and reflected in the decisions of the State Review Office: “where a parent enrolls a child in a private placement before the time that the district would have been obligated the implement the IEP placement, the validity of the proposed placement is to be judged on the face of the IEP, rather than from evidence introduced later concerning how the IEP might have been or allegedly would have been implemented”. (A.M. v. New York City Dep’t of Educ., 2013 WL 44056216 at *13 [S.D.N.Y. Aug 9, 2013]. Such position was confirmed as recently as October 22, 2014 by the State Review Officer in deciding

A pplication of a Student with a Disability , Appeal No. 13-042 and as even more recently confirmed by the State Review Officer, on October 30, 2014, in A pplication of a Student with a Disability , Appeal No.13-017. Thus, I find that Parents’ allegations are speculative in nature as Parents did not accept the I.E.P. containing the recommendations of the Committee or the program offered by District.

It is my finding and determination that District has successfully established that its Committee on Special Education prepared an Individualized Education Program for Student for the 2013-2013 school year that recommended an appropriate program for Student in an classroom setting and with appropriate supports and services to ensure that Student would receive meaningful educational benefit.

There is no question but that the program that was afforded to Student during the 2013-2014 school year by was an excellent program, one that afforded to Student many services and supports to address Student’s extensive needs.

While the class size at was similar to that offered by District, it offered Student the benefit of instructors rather than a teacher and a that composed the program offered by District. The program at also permitted Student to attend in a environment, rather than a building. Such are the benefits of a private school However, District has satisfied its obligation of having offered Student a program and a placement that ensured that Student would receive meaningful educational benefit. Such is the extent of its obligation.

It is my finding and determination that the District has borne its burden of establishing the appropriateness of its proffered program to Student for the 2013-2014

school year

Having made such determination, it is unnecessary that I review or determine the appropriateness of the program and placement unilaterally selected by Parents, nor need I decide whether equitable considerations favor one party or the other.

ORDER

Based upon the above review, it is

HEREBY ORDERED that Parents’ Due Process Complaint be, and the same hereby is,

DISMISSED

Dated: November 18, 2014

, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

DOCUMENTATION ENTERED INTO RECORD ON MAY 8, 2014

A. Notice to District of Intention To U&ni8lateraly Place Student and Request for Transportation, dated 8-23-23 (2 pages; Parents)

B. Parents’ Due Process Complaint Notice, dated 10-30-13 (6 pages; Parents)

C. Enrollment Contract – 2013-2014 Academic Year (2 pages; Parents)

D. School Progress Report – Review – November 2013 (22 pages; Parents)

E. Individual Diagnostic Analysis, dated 9-23-13 (8 pages; Parents)

F. Student’s Class Schedule (1 page; Parents)

G. Federal Income Tax Return (Form 1040) for for 2012 (2 pages; Parents)

H. School Progress Report – Second Review – February 2014 (30 pages; Parents)

I. Letter from Parent to C.S.E., dated 8-6-13 1a 6 Parents’ Due Process Complaint Notice, dated DOE 10-30-13 (5); and Fax Confirmation Sheet (1) 1b 6 Corrected Parents’ Due Process Complaint DOE Notice, dated 3-13-14 (5); Fax Confirmation Sheet (1) (1 page; Parents)

2. District’s Response to Complaint, dated 4-4-14 3a 2 Notice to Parent of Mandated Three-Year DOE Reevaluation, dated 10-11-12 3b 1 Request for Parent Consent to Reevaluation, dated DOE 10-11-13 – with Parent Consent, dated 11-2-12 (4 pages; DOE)

4. Report of Psycho-educational Evaluation, dated 11-15-12 by, Ph.D. (4 pages; DOE)

5. Evaluation Report by dated 11-26-12 (5); Parent Checklist form (3); Teacher Checklist form (2) (10 pages; DOE)

6. Report of Classroom Observation by, dated 11-30-12 (2 pages; DOE)

7. Note from Parent to, dated 11-29-12 (1 page; DOE)

8. Report of Evaluation by, dated 12-5-12 (3 pages; DOE)

9. Report of Evaluation by -, dated 12-27-12 (5); Teacher Checklist Form (2); Parent Checklist Form (3) (10 pages; DOE)

10. I.E.P. Meeting Notice to Parent, dated 1-15-13 (4 pages; DOE)

11. I.E.P. meeting Notice to Parent, dated 1-28-13 (4 pages; DOE)

12. Report of Services to Student, dated 1-31-13, by, Psy.D. (1 page; DOE)

13. Student’s I.E.P., dated 2-4-13 (18 pages; DOE)

14. Attendance Sheet for 2-4-13 I.E.P. Meeting (1 page; DOE)

15. Minutes of Committee Meeting of 2-4-13 (2 pages; DOE)

16. Student Information for Placement Request, dated 2-6-13 (4 pages; DOE)

17. Final Notice of Recommendation, dated 6-25-13 (2 pages; DOE)

18 39 – DOE

Secord Edition – Interpretive Report

19 17 School Progress Report – FirstDOE

Review – November 2012

20 1 Copy of Email from Parent to , dated DOE

11-29-12 – Response to Parent by , dated

1-3-13

21 2 Letter from Parent to , dated 3-27-13 DOE 22 2 Request to Parent for Consent to Reevaluation,

23 5 Evaluation Referral, undated DOE

24 1 SESIS Event Log regarding Parent Request for DOE Evaluation, dated 4-9-13

25 1 Copy of Email from Parent to , dated DOE

4-17-13 and Response

OTHER DOCUMENTS ADDED TO THE RECORD

I. Closing Brief and Legal Memorandum IHO Submitted by Parent’s Counsel II 38 Closing Brief and Memorandum of Law for the IHO Department of Education III 3 Subpoena dated 3-12-14 IHO IV 2 Subpoena dated 3-12-14 IHO (30 pages; Parents)

V. Subpoena dated 3-13-14 IHO VI 2 Subpoena dated 3-13-14 IHO (3 pages; Parents)