Impartial Hearing Decision

FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER

Student's Name:

School District: School District

Hearing Requested By: Parents

Dates of Hearing: April 16, 2015

April 17, 2015

April 24, 2015

May 20, 2015

Hearing Officer:

NYS Identifier No.:

NAMES AND TITLES OF PERSONS WHO APPEARED April 16, 2015

Esq. Attorney — District

Representative Director of Special Education and Related Services

CSE Chairperson

For the Parent

Esq. Attorney

Mother

April 17, 2015

School District

Representative Director of Special Education and Related Services

School

For the Parent

Esq. Attorney

Head of School

Mother

. Father

April 24, 2015

School District

, Esq. Attorney

Representative Director of Special Education and Related Services

For the Parent

Esq. Attorney

Mother . Father

Director,

May 20, 2015

School District

, Esq. Attorney

Representative Director of Special Education and Related Services

For the Parent

, Esq. Attorney

Dean of Academics,. Mother

Father

On December 17, 2014, the parents of. (hereinafter “the student”), requested an impartial hearing for the purpose of seeking tuition reimbursement for their unilateral placement of the student at, a l school located in.^[1] I was designated to hear this matter on December 18, 2014. A pre-hearing telephone conference was held on January 28, 2014. (IHO Ex. I). A hearing was held on April 16, 17, and 24, and May 20, 2014.

The compliance date was extended on four occasions, due to unavailability of witnesses and extensive testimony and issues; with a final compliance date is July 3, 2015. (IHO Ex. I, II,

V, VI).

The student is a year old young man with cognitive abilities and overall academic achievement in range. (DOE Ex. 18). He attended the School District’s public schools until 2014

(his tenth grade year), when he was for. (Tr. pp. 402-407; Dist. Ex. 20). From, the students was placed in a program, and then at The student’s mother testified that the student performed well in elementary school. (Tr.

p. 364). During his middle school years, he received grades of “”’s and “”; however, his teachers called about his and missing assignments. The student was with and was prescribed; however no referral was made for special education services. (Tr. pp. 365-366). In eighth grade, the parents met with the student’s teachers. Various were attempted, and the parents hired a private tutor to help him organize. (Tr. pp. 368-369). His grades declined at the end of his eighth grade year. (Tr.

p. 370).

According to the student’s mother, the following year (2012-2013), when the student began attending ninth grade in the school district’s high school, he immediately experienced. He had difficulty, was, and missed homework. (Tr. p. 371). In October, the parents brought him to a, who felt that he was. When the parents saw that his issues were not going away, they referred the student to the Committee on Special Education (“CSE”) for an evaluation. (Tr. p. 374). The

CSE met in April 2013, and determined that the student was not eligible, after he performed in the range on all measures of educational achievement. (Par. Ex. B). The parents disagreed with the CSE’s conclusion, but did not challenge it, at that time, because the student seemed to be more settled at the end of the school year. (Tr. pp. 478-481, 514). They hired a to provide (Tr. p.

378). According to the student’s mother, his performance improved toward the end of his ninth grade year, and he seemed a bit more settled. His ninth grade report card reflects grades ranging from for academic subjects. (Tr. p. 378-379; District Ex. 24).

The student started out the 2013-2014 school year (tenth grade) with relatively grades; however his performance as the year progressed. His mother testified that during the second quarter, he was. (Tr. pp. 380). His parents learned, at that point, that the student was seeing a at the school, whose work was confidential. (Tr. pp. 386-387). The parents also secured outside with a, and participated in sessions. (Tr. p. 388). Between 2015, the student a few times a week, except for a month or two in, when he. (Tr. pp. 484, 490).

Towards the end of January of his tenth grade year, the parents took the student to see.

She him with and prescribed. (Tr. p. 391). The parents were also concerned, because the student’s was not being treated, while his medication was adjusted. (Tr. p. 391). During the same time period, the student and his teachers were concerned about his performance. (Tr. p.

394). He became to his mother when she tried to confront him with her concerns. (Tr. p. 400).

On, 2014, sent a letter to the student’s guidance counselor explaining the change in medication, requesting a, and an increase in structure,. (Dist. Ex. 21). The parents discussed their concerns with the student’s guidance counselor, who placed the student in a program, in which and he received for homework. (Tr. pp. 377, 391-392).

The student’s mother described an incident which occurred on, 2015; when the student became during class, and. When his teacher requested, he. (Tr. p. 384). The incident resulted in his being out of school that day. (Tr. p. 385). He returned to school after the incident; however the parents felt they couldn’t, including his refusal to. They met with the student’s, who mentioned a program and a school. The parents had also been in touch with. (Tr. pp. 404-405).

On, 2014, following an, the student stated he was not. The father took him to, where the student was, 2014. He was, with prescriptions for (Dist. Ex. 20; Tr. pp. 405-406)).^[2]

Following his discharge from, the student entered program in (hereinafter “the program”). (Dist. Ex. 19). According to his mother, he was placed at the program, upon the advice of staff at who stated that he could not. (Tr. p. 410). He was escorted there by a , hired by the parents. (Tr. p. 490). He remained in the program for eleven weeks. (Tr. p. 411). Prior to his discharge from, the parents had also hired an educational consultant, who specifically recommended the program the parents selected. (Tr. pp. 470-472). The consultant referred the parents to ., , who evaluated the student, while he was at the program; and recommended schools to the parents. (Tr. pp. 474, 491).

On, 2014, following his placement at the program, the parents wrote to the vice principal of the school district’s high school, to inform her of the placement, and to request an immediate

CSE review. They informed her that they had arranged for a private evaluation, which would be provided to the school district. (Dist. Ex. 4). The parents visited on, 2014. (Tr. p. 493).

, and CSE chairperson in the school district, first became familiar with the student in 2014, after he was and placed in a program. (Tr. pp. 43-47). On 2014, D (previously known as ), generated a referral (on the parents’ behalf) to the CSE. (Dist. Ex. 5; Tr. p. 137). On the same date, the school district requested written consent for evaluation; which was returned to the school district on, 2014. (Dist. Ex. 6 ,7; Tr. p. 54).

As part of the private evaluation, the student reported to . that he makes friends easily; that he was and had problems, and that he experienced intermittent which was helped by. He reported regular. He stated that he expressed his by, and, but was never toward others. (Dist. Ex.

18).

On the, the student scored in the range of intellectual functioning. His ability to sustain attention was in the range; however on the, both the student and his father reported that the student had. On the, the student received a composite score in the percentile. His reading, math and written language scores were all in the range. The test results did not indicate any evidence for. On a test of, the student’s scores were in the range. On the his score on the Emotional

Control scale was. (Id.)

test results portrayed him as an adolescent who lacks skills. His test results indicated there is much underlying his; and that he experiences several symptoms. D reported that the student’s was significant; and that he is at serious risk for in the future. He further found that the was a product of his skills. The student was given the following diagnoses: recommended that following his stay at the program, the student go to a highly structured, school with support, that can continue addressing these issues in depth. He specifically recommended a program with a strong that emphasizes interventions, and can also provide. No specific academic interventions were recommended. (DOE Ex. 18).

, a licensed and director at the program, testified that when the student first arrived, the student was. Within a few hours of arriving in the field, he, and was assigned to a, with staff sitting with him at all times. Staff was concerned about what the student would do to show he wasn’t a fit for the program. . testified that the student was frequently watch. He stated that the student would look to. (Tr. pp. 521-522; 529-531). . described how the student progressed, in his ability to think more rationally and talk about accountability. Although he remained, he did express and had greater awareness of how he impacted others. (Tr. pp. 538-539).

On, 2014, prepared a summary, describing the student’s progress in managing his. He stated that that the student is in need of support following his discharge from the program; and that without these supports, he will regress and continue to use his expression as a way to cope.

He recommended placement in a school adept at working with young men with issues, including a “positive”. (Dist. Ex. 19; Tr. p.522). He testified that the program should also be academically rigorous and challenging, so that the student could access his abilities. (Tr. p. 544). He explained that the reason the student could not attend a program was because the “would be too powerful for him; and that if he were allowed to access, it would be too easy or comfortable for him to return to as. (Tr. p. 566).

He testified that a program would not have been enough for the student, as he would have quickly accessed his friends and returned to, and, which he used to (Tr. p. 544). He agreed with the parents’ choice of (Tr. p. 554).

The student’s mother testified although she wanted to bring her son, her educational consultant never recommended any programs. The consultant recommended, another program, which the parents visited. (Tr. pp. 474, 502). The mother never asked her consultants to contact the programs which were recommended by the school district. (Tr. pp. 474-475). The student’s mother called one or two schools, on her own, but did not meet with anyone from the schools.

She does not recall what information she got from these schools. (Tr. pp. 510-511).

received .’s evaluation on or about, 2014. (Tr. p.55). On the same date, the parents informed her that the student was being discharged from the program on 2014, with a recommendation that he be enrolled in a school. (Tr. pp. 56-57). D informed the parents that they would be contacted by . a school district for a. The parents requested that it be conducted by telephone or video-conference. (Dist. Ex. 11).

By letter dated , 2014, the student’s father informed that the student was placed, the previous day at, where he would remain, while they awaited the CSE’s recommendations. The parents consented to a Skype conference with .. They did not state that they would seek tuition reimbursement in this letter. (Dist. Ex. 13). The student’s mother testified that while the student would have to attend for n months, in order to graduate from the program; the parents were open to other suitable options. She testified that what she really wanted was for the student to be. (Tr. p. 441).

The parents attended a parent interview at on or about , 2014; and the student attended an intake interview on, 2014, the date he began attending. (Tr. pp, 418-419). Prior to that date, the parents had presented the program to him; and he was impressed by the academic level at the school and the list of college acceptances. It was explained to him that he could not. (Tr. p.

420).

On, 2014, the parents met with. and the school district’s Director of Special Education.

The requirements of providing FAPE were explained to the parents. According to . , the parents stated that they had placed the student at, and that he would not be coming back. (Tr. pp. 60-61).

Between, 2014, . (who is also licensed as a employed by the school district, conducted a evaluation consisting of The student reported that he was not taking his; that he was not. He was not sure he could remain “”. He stated that he would like to return to the school district’s public school, because his are there, but that he thinks he might need to be here (at ) for a while. (Dist.

Ex. 17; Tr. p. 234). At the hearing. described the student as appearing, during the Skype interview. (Tr. p 246).

. testified that prior to his evaluation, the student had an extensive evaluation. .’s role was to do a and get background information from the parents,. and (Tr. p. 237). The history, as reported by the parents. was that they tried to address the student’s through; but that the student was not improving; and that the family became concerned enough to refer the student to. (Tr. p.

24). . and. both stated that there would be a high risk of, if the student returned to the school district’s high school. (Tr. pp. 254-255).

When spoke with, he described the student as a very bright young man, who in the midst of his greatest, was still able to maintain ’s and ’s, because of his cognitive abilities. He reported that the student’s was in relationship to; and that the student as a. No was reported. There was also. (Tr. pp. 241-242).

On, 2014, the CSE met and determined that the student should be classified with an.^[3] It was also agreed that the student required more support than was available at the school district’s high school. This conclusion took into account the parents’ concern about returning the student to the same environment. (Dist. Ex. 30, p. 2; Tr. pp. 78-79). A “Draft” IEP was generated, pending final recommendations. (Tr. p. 68; Dist. Ex. 30). Although there were issues with agreed with the classification, because there were concerns for which the student required more.

(Tr. p. 75). As the CSE could not conclude its work on due to the length of conference, it reconvened on 2014, a date agreed upon with the parents. (Tr. p. 77; Dist. Ex. 29).

When the CSE reconvened, , the head of, and, the director of the Department Office of for County participated, in addition to the other members of the review team. (Tr. p. 77, 79). ^[4]

was asked to participate because the parent had expressed concern about being able to manage the student. described the various programs that were available to the family. He also described the importance of keeping the student in, learning skills. He reviewed the reports, and stated that were no indications that the student would require a setting. (Tr. p. 80, 165; 457; Dist. Ex. 30. p.

2). The student’s mother felt that the programs described by were not all that different than what the parents had been providing on a private basis. (Tr. pp. 457-458).

The CSE concluded that the appropriate placement for the student was a program. (Tr. p.

81). agreed with this recommendation, as being the least restrictive environment, based upon the student’s prior progress in the school district’s program. (Tr. p. 83). also agreed with the recommendation for a placement. He felt, based upon the student’s cognitive and academic abilities, and with the structure of a program; the student would be able to function during the school day, and achieve educational success. (Tr. pp. 245-246). He testified that a placement would offer the student the academic and emotional support which he needs. (Tr. pp. 248-249).

Five goals were drafted. They include identifying; developing positive skills to; exhibiting when; learning to control as evidenced by a decrease in; improving in school by highlighting and discussing successful academic accomplishments each week. (Dist. Ex. 30).

Although the draft IEP set forth a staffing ratio of (Dist. Ex. 30, p. 1); testified that the specific ratio could have been modified in a final IEP, after the appropriate placement was identified. (Tr. p. 157). The Draft IEP was never mailed to the parents. (Tr. p. 182). Had the school district received an acceptance, it would have reconvened to consider that placement. (Tr. p. 187)

testified that she described the process by which the school district would send a packet of information to various programs, and told the parents they needed to participate to learn about the programs. (Tr. p. 84). The packet included all of the assessment reviewed at the CSE meeting, as well as the draft IEP. (Tr. pp. 112-113). According to the Draft IEP, the parents expressed that they were willing to investigate all options, but remained concerned about moving the student from at this time. The Draft stated that “the committee will reconvene to make final recommendations for placement once the intake process have (sic) been complete for each appropriate program”. (Dist. Ex. 30, pp. 2-3).

After the 2014 meeting, the school district applied to private schools, neighboring school districts and programs. (Tr. pp. 85-86). On 2014, wrote that the School District (hereinafter “)

invited the parents for an intake interview. (Dist. 31). On, 2015, the parents informed that they made an intake appointment with the High School program (hereinafter,). (Dist. Ex. 32). stated that he needed to meet the student; and that a Skype interview was possible. (Tr. p. 88).

The student’s mother testified that the program was located in a. informed the mother that the student would receive once each week and once each week; and that he could see him, as needed; but that there were no night or weekend services. told her that the student would be taking most of his classes in the mainstream at High School, and the other students would know he is a student. The student’s mother felt that this would “horrible for him socially”. (Tr. pp. 450-

451).

Both parents went to visit the Program, where the classes were completely mainstreamed; and the student would receive once per week and once in a p. The mother did not feel it would provide a sufficient level of support for the student. (Tr. p. 452). She was concerned that he would be an outsider there; as everyone would know he wasn’t from; and that he would still have. (Tr. p. 453).

The student’s mother also went to visit the program, which was a campus. At that program, she was informed that eighty per cent of the students were, and the average IQ was The school did not offer Algebra 2, Trigonometry or Physics; and most students there did not go on to four year college. (Tr. pp. 454-456).

On, 2014, , a from, reported that while the parents participated in an intake interview, the school would also have to meet the student, which it offered to do via Skype. (Dist. Ex. 33). ^[5]

On, 2014, the parents sent a letter stating that after meeting with staff from, they concluded that none of them are appropriate for their son. First, they stated that none of the programs offered the amount of and support which was recommended for the student. Second, they wrote that none of the programs offer the student a peer group, consistent with his academic capacity. They stated that they do not wish to remove him from to participate in the intakes, and inquired about the next step for the CSE to offer a r program with an appropriate level of support. (Dist. Ex. 34).

testified that after receiving the parent’s letter, she followed up by contacting the programs, and with, in order address the parents’ concerns. (Tr. pp 93, 95). She testified that all three of the programs which were offered had available. (Tr. p. 169).

On , 2014, responded with a detailed letter describing the three programs in question.

She explained that would maintain the student with typical peers; with access to rigorous and academically challenging courses, and access to support throughout the day. She reported that the students in the program are in range cognitively, and that some students having similar cognitive talents to the student. With respect to the parents’ concerns about the program’s ability to provide the school day, explained that additional l supports are available in the community.

(Dist. Ex. 35).

She explained that is a program; but that students have the opportunity to integrate with typical peers for rigorous academic courses, with throughout the day. She reported that the students range from, with some students having similar cognitive talents to the student. (Dist. Ex.

35).

She acknowledged that did not provide Algebra II or physics, but stated that additional classes could be provided online. She further explained that it is imperative for the student to be made available for intake interview to allow the school district to fulfill its obligations to provide an appropriate education. (Dist. Ex. 35).^[6]

testified that the school district has placed students in all three programs, and that she had visited both the and the programs. (Tr. p. 100). She testified that all three programs indicated they could provide the programs and services listed on the draft IEP. (Tr. p. 113).

On, 2014, the parents responded to the 2014 letter, expressing their “fundamental concern that .. none of the program options provided offer”. They stated that since the programs are not consistent with the professional recommendations they received, they did not believe it would be constructive, and that it could be harmful for him to participate in the school intakes.

They reiterated their request for a option. (Dist. Ex. 36).

In a letter dated, reiterated the school district’s request that the parents make the student available for intake interviews. (Dist. Ex. 37). On, 2014, the parents responded, requesting that the recommended programs first have a conversation with the student’s current in order to make a determination regarding the appropriateness of their program, prior to having them conduct an intake interview. (Dist. Ex. 38). On, 2014, responded by offering to speak with the student’s current about the programs available in the community. (Dist. Ex. 39). On, 2014, the parents responded to the, 2014 letter, stating that already spoke with the student’s as part of the CSE proceedings. The parents concluded that the parties are at an impasse and stated that they would continue the student’s enrollment at and seek tuition reimbursement from the district. (Dist. Ex.

40; Tr. p. 108).^[7] The parents never permitted the student to participate in a Skype interview for any of the three programs. (Tr. p. 109).

The student’s mother testified that the parents never consented to have the student participate in intake interviews with any of the programs offered by the school district, because the student had already been at for two months and was engaging in the program; and the parents did not want to confuse him with the notion that he might be. (Tr. pp. 460-461, 505). She testified that her purpose in offering to have the programs speak with was so that he could :”vet out the appropriateness of the programs”, and so that the programs could “make a determination based upon the conversation with”. (Tr. p. 461). She testified that the parents would have removed the student from if they found a program that would fit his profile; and in which they thought he could be successful. (Tr. p. 466).

In a letter dated, 2014,) stated it was unable to recommend a placement, without an interview with the student. (Dist. Ex. 42).

In a letter date stamped 2014, Supervisor of the campus, stated that although the student’s mother participated in an informal intake, the parents did not make the student available for an intake; although the school offered to conduct the meeting by Skype (as early as, 2014). (Dist.

Ex. 43).

In a letter dated stated that based upon her review of the student’s information, his profile is similar to the profile of current students, making him an appropriate candidate for the program; nevertheless she was unable to accept him due to his failure participate in an interview

(or Skype interview). (Dist. Ex. 44).

, the school district’s Director of Special Education, testified that she and met with the parents in 2014 to discuss the CSE process, and to hear from the parents about the student and their concerns. (Tr. pp. 194-195). During the meeting, the parents stated that the student would not be returning to the school district’s high school, and that there was a commitment for him to remain at for at least months. (Tr. pp. 199-200). At the meeting, stated that professionally, she did not support the techniques used at . (Tr. p. 201).

On, 2014, the parents signed a contract enrolling the student at for the 2014-2015 school year, for the period commencing on, with an annual fee of $. (The student actually began attending on, 2014, so the tuition was pro-rated to $.) As part of the contract, the parents acknowledged and agreed that they have read and understood the Parent Manual, including the terms “pursuant to which shall be present at the”. (Par. Ex. D). On the same date, the parents made a payment of; which included a security deposit and a enrollment fee. (Par. Ex. D; Tr. pp.

467-468).

As described in its handbook (Revised June 2014), is a, school, where are challenged to work on themselves, “addressing their and learning honesty and self-respect”. Students are expected to excel academically and learn to take responsibility for their own lives, with the help of. According to the handbook, the program is voluntary, and students must agree to be there and abide by school rules; nevertheless, if a student states he wants to leave, families are advised to answer “” (Dist. Ex. 45 at 2-3). If a student chooses to leave the school, he will not be physically prevented from doing so. Staff will contact the parent as soon as they known a student is missing, and work with the parents to locate the student; but will not chase the child or assist him in returning. (Id. at 5). The handbook states that “does not provide ..”, and that there are times when there is no., who are present in the students’, are not part of the staff. (Id. at 11).

As described in the handbook, the environment at is, as students are forced to (Id. at 1).

The school is organized (determined by the community of students), in which students earn privileges. Initially, a student is a, until he is voted-in as a. (Dist. Ex. 45, pp. 3- 4). While he is a, a student, as the family is working on. (Id. at 14). After being accepted by the community, a student will be voted in as a “”, which is the next level. (Tr. p. 285). Students then move to, if approved by the school staff and the student community. (Tr. p. 286).

Students participate in with their on a regular basis (the frequency of which is not detailed in the handbook); and in in smaller groups (once or twice each week) and with the, several times per week. The precise amount is not indicated in the handbook, or in any written plan. (Dist. Ex. 45 at 5-6). The school prohibits. (Id. at 6). The academic environment is demanding, and students are not accepted unless it is felt they are capable of the work. Students support one another in their academic work by encouraging one another, and providing (Id. at 6).

The school day resembles a college day, in which students have free time between classes, responsibilities, errands, peer appointments and meetings with or teaching staff. (Id. at 7). Students. (Id. at 7). Students have study hall (Id. at 8). Initially, telephone contact with parents, as phone calls must be member. (Id. at 8). occur every six to eight weeks. (Id. at 9).

Until they reach more advanced levels, students must be and are only granted with permission.

(Id. at 11). According to the handbook, students at matriculate at some of the top colleges and universities in the country. Students receive college counseling and may be accompanied for interview trips. (Dist. Ex. 45 at 12).

The Handbook describes various techniques used to address student’ s including requiring the student to become a “; being assigned to be a “and”. (Dist. Ex. 45, p. 23). described these techniques as, which in her opinion, do not address a student who needs to skills. (Tr. pp.

122-124). She testified that based upon her experience and training in, these strategies are inappropriate for improving a student’s (Tr. pp. 124-125). also testified that these techniques are inappropriate for a student who may have that need to be worked through. (Tr. pp. 207-210).

, the head of testified that he has a in and a Master’s Degree in. He testified that utilizes a, using a lot of work. (Tr. p. 271). Students are removed from, with a approach, that pushes the students on cognitive abilities and peer responsibility. (Tr. p. 272). Students who may have are not seen as; but rather, for which they are personally responsible. (Tr. pp. 326-327). One hundred percent of the current student body came from a program. (Tr. p. 333).

The student is assigned a primary; but the primary modality is, three days each week for one and one-half hours, plus an additional, led by staff. The students also have without staff. (Tr.

pp. 272-273, 353-354). There are three at the school (two with), who constitute the team. (Tr. p.

278). The does not include a

The students are in the range intellectually, and have not been The school does not accept students who are. The students range in age from fifteen to twenty; in grades sophomore to ). (Tr. pp. 276-277, 328). The intake process consists of an initial review of the case; a lengthy telephone call with the parents, and then a day long visit by the parents. If the parents feel the school is appropriate, the student comes in for an interview, spends some time alone with students and usually attends a class. If the school and the student agree he should attend, the student’s program begins immediately. (Tr. pp. 274-275). Formal written educational plans are not created, although plans are discussed. (Tr. pp. 325-326). The minimum enrollment period is months. (Tr. p. 328).^[8]

Within the student there are, who are available, as needed. They drive the students to doctors and recreational activities. The are not a visible presence, and do not supervise the students, as the program is built “on an program”. (Tr. p. 280). The curriculum is formed on a traditional model of five major areas (history/social sciences, language, science, math and literature). (Tr. p. 281). Class offerings include advanced calculus, advanced and honors language classes, biochemistry and organic chemistry, computer science and independent studies; art, music performance, creative writing and physical education. (Tr. pp. 283-284). The school is accredited by the Association of Schools and Colleges. (Tr. pp. 281, 284). Classes range in size from students. (Tr. p. 284). Teachers have at least a Master’s Degree in their fields.

(Tr. pp. 284-285). Teachers are available, to meet with students, by appointment. Student academic advisors push students to make appointments with teachers for extra help. (Tr. pp. 288-

289). None of the teachers have degrees or certification in special education. (Tr. p. 620).

is the student’s primary. They have short exchanges daily, and meet in, at least three times per week. The student also stops in to office once every two or three weeks, for an extended period. (Tr. pp. 289-290). Initially, the student presented as, and not acknowledging his need to make. His behavior. He for his problems. (Tr. p. 291). In the student was situation.

(Tr. p. 294).

In a letter dated, 2014, reported that it took the student a long time to accept being at and to take the program seriously, and that his motivation to succeed really only emerged recently. (Par. Ex. E). The turning point in the program came in r when he went to “, after it was revealed that he was. At that point, the student realized, for the first time, that he did not want to be, and that he wanted to try rather than. (Tr. p. 293, 340; Par. Ex. E). As of the time of hearing, he was a “”. He has gained leadership qualities and responsibilities in the. He is actively participating in and demonstrating the kids. He his dealing with his and is more He has himself and is being more constructive in taking care of his life. (Tr. p. 306-307). Academically, the student has performed well. In 2014, his Progress Report indicated grades of ’s and ’s. By 2015, his grades were all ’s, including three Honors classes. In 2015, his grades were ’s and ’s. (Par.

Ex. F).

testified that the school setting is “very”, as the school demands that students work hard academically. He attributes the student’s success to the of the school; where his friends value academics, the structured study hall, and the absence of Internet and cell phones, and limits on television. (Tr. pp. 311-312, 332). He reported that the student benefits from having teachers work very closely with him. (Par. Ex. E).

, the dean of academics (and a primary, testified that she is a. (Tr. p. 575). She described as an integrated approach including, rigorous academics and student. (Tr. pp. 584-585). Ms.

testified that at the start of the school year there were students; but that at present, students are enrolled. She testified that over the course of the school year, new students arrived, two chose to leave, and seven were, for violating school rules. (Tr. pp. 587-588).^[9] The curriculum, is a traditional classical education with college like electives. (Tr. p. 590). The school offers higher level classes including advanced calculus and physics. (Tr. p. 592).

The student participated in a group with Ms., which ran for approximately eight weeks.

(Tr. pp. 594-595) He also participated in large with. (Tr. p. 595). The student’s current curriculum incudes Literature, U.S. History, Physics, Algebra 2, Honors Spanish, and Music

Performance. He also takes a class in, a discussion critical thinking class taught by. (Tr. pp. 600-

602; Par. Ex. F, p. 5).

Ms. described the student’s progress, from appearing; to developing humility, compassion, the ability to and. Initially, he in physics class, but he developed the work habits and patience to persist, and improved his grade from a to an . (Tr. pp. 605-606; 610-611; Par. Ex.

F).

The student’s mother testified that she feels the at the school have been appropriate; and that the student has proceeded through various levels into leadership positions. He. He, including for the week. (Tr. p. 423). Initially, the student’s telephone calls with the parents were, until he was accepted into the community; however now the parents speak with him week. (Tr.

p. 424). She testified that she was aware that the student had participated in; and feels that the experience was beneficial, and that it was a turning point for him. (Tr. pp. 426-427). She feels the student is engaged academically; and described the high level of his coursework, which includes physics, algebra 2, and a class in. The student is rewriting assignments, in order achieve a higher grade; and preparing in advance for a lengthy written assignment which is due in. (Tr. p.

428).

At, the student is allowed to daily to go to a gym or walk to town, with another student.

He goes to the library, movies the pharmacy or for food. He is required to sign in and out, and let the school known where he is. (Tr. pp. 494-496). The student’s mother, testified that the student is there voluntarily, and can leave if he wants. If he should leave, the school would notify the parents. (Tr. p. 508).

The student has been since enrolling at. On the first visit, he came. (Tr. p. 43). In , he accompanied another student to, to visit his family. The parents have also seen him at the school, on, which occur every six to eight weeks. (Tr. pp. 431-432). The include. (Tr. p. 433).

Findings of Fact, Conclusions of Law and Order

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982].

A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Forest Grove School District v. T.A., 557 U.S. 230 (2009); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S.

359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510 US. (1993).

In these proceedings, the School District does not dispute that it failed to offer the student a placement. Rather, its position is that the parental placement is inappropriate and overly restrictive, and that equitable considerations do not favor the parents, as they failed to make the student available for intake interviews, and failed to provide the required notice prior to removing the student from the school district. (Tr. p. 32; IHO Ex. VII). The parents argue that was appropriate to meet the student’s special education needs, and that equitable considerations support their request for relief. They argue that the school district’s conduct in the prior school years is relevant for purposes of equitable considerations; and that the parents demonstrated cooperation in developing the student’s program. (IHO Ex. VIII).

Appropriateness of Parental Placement

To qualify for funding under the IDEA, the parents must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006)

(citing Rowley). cert. denied, Board of Educ. Of Hyde Park v. Frank G. 128 S. Ct. 436 (2007).

With certain exceptions, the same criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parental placement. The issue turns on whether a placement- public or private –is reasonably calculated to enable the child to receive educational benefits. Frank G. v. Bd. Of Educ. Of Hyde Park, supra). While a student’s record of success at the school is relevant to the court’s review, progress does not itself demonstrate that a private placement was appropriate. Gagliardo v, Arlington Cent. Sch Dist.,489 F 3d 105 (2d Cir. 2007); Green v. New York City Department of Education, 50 IDELR 50 (S.D.N.Y. 2008). Reimbursement is not warranted where the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child. Gagliardo v, Arlington Cent. Sch

Dist., supra.

Parents are not held as strictly to the standard of placement in the least restrictive environment as a school district; however, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement.

M.S. v. Bd. Of Educ., 231 F. 3d 96 (2d Cir. 2000).

I do not find that is a special education program reasonably calculated to enable the student to receive educational benefits. The record indicates that less than three months before the placement was made, the student was, and discharged with From there, he was placed in a program, where he was under a, due to his and perceived. He was discharged from the s program with a, with a recommendation that he attend a highly structured, support, in an environment that is consistent and nurturing. testified that the reason the student could not attend a program, was due to concerns that he would return to.

explained, however, that ’s philosophy is a approach. Students are taken off, and pushed on their cognitive abilities and. The school is described as a environment, which is producing.

The environment, as described in the record, is not Rather, it is. No evidence was presented that the student has access to a. does not have a set schedule for the student . with the students, are not part of the program. Nor do they supervise the students. Thus, the school does not provide, as recommended. The program relies, to a great extent, on the one another. During the current school year, a large proportion of the students were. The school does not know how the students, as the students are free to roam the school grounds and walk into town with one another.

Parents are specifically cautioned, when they enroll their child at , that the school does not provide. As of the IEP meeting, reported that the student had not yet bought into the program and was not. In his 2014 report, he stated that it took the student a long time to accept being at and to take the program seriously, and that his motivation to succeed really only emerged recently.

Given the student’s recent, and history of; the parents took a tremendous risk when they placed him in a setting where he was support, left with l supervision within the, and had access to.

While the record indicates that the student has performed well academically, and made gains within the setting of the school; in the absence of proof that he was provided appropriate, I find that the parents did not sustain their burden of proving that the placement at was reasonably calculated to enable the student to receive educational benefits. Therefore, their request for reimbursement must be denied. Gagliardo v, Arlington Cent. Sch Dist., supra.

Equitable Considerations

In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 49 IDELR 39 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Florence County School District Four, et al v. Carter 510 U.S. 7 (1993); M.C. v. Voluntown, 226 F. 3d 60 (2d Cir.

2000). The parents’ intent is a question that informs the balancing of the equities. E.T. and D.T.

v. Board of Education of the Pine Bush School District, 60 IDELR 13 (S.D.N.Y. 2012).

Even if I were to find that the parental placement were appropriate, I would find that the parents’ refusal to make the student available for intake interviews prevented the school district from completing its work, and offering the student a placement; and that therefore, the parents are not entitled to an award of tuition reimbursement. Bettinger v. New York City Bd. of Educ., supra. While there was a genuine disagreement between the parties as to whether the student could be successful in a program, it was reasonable for the school district to first explore the appropriateness of less restrictive options for this student, and to require the parents to participate in this process, as this was the student’s initial placement, and he had previously been successful in a setting. See Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998); C.T. and T.T. v. Croton-Harmon Union Free School District, 812 F. Supp. 2d 420

(S.D.N.Y. 2011).

The parents never consented to have the student participate in the intake interviews because they felt that the student was engaging in the program; and they did not want to confuse him with the notion that he might be. I find, however, that this young man was capable of understanding the reason he was being asked to participate in the Skype intake interviews; and that the parents’ refusal to have him participate in the process demonstrates that they did not intend to remove him from . ^[10]

The parents’ suggestion that the programs first be screened by, was no more than an attempt to veto options which were offered by the school district, a power they do not have under the IDEA. See T.Y. v. New York City Dep’t of Educ. See 584 F. 3d. 412 (2d Cir. 2009).

Tuition reimbursement may be reduced or denied, if the parents neither inform the CSE of their disagreement with the 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 U.S.C. Sec. 1412[a][10][C][iii][I]; Application of the Board of Education, Appeal No. 08-084. The purpose of the notice requirement is to give the school district a meaningful opportunity to minimize its expenses by developing its own IEP that would provide the child with a FAPE within the School District. J.S. and A.G. v. Scarsdale

Union Free School District, 826 F. Supp. 2d 635 ( S.D.N.Y. 2011).

I do not agree with the school district that the parents’ delay (until, 2014) in providing notice of their intent to seek funding for their unilateral placement is an equitable consideration in this case. The school district was on notice of the parents’ objections to its recommendation of a placement; and there is no indication that it would have taken any different action had it known, at an earlier date, that the parents were seeking funding for the placement at . The school district did not change its course of action when it received the notification.

The parents argue that although they requested no relief relating to the 2012-2013 and 2013-2014 school years; the school district's conduct leading up to the 2014-2015 school year, which is at issue, is relevant for the purpose of equitable considerations. (IHO Ex. VIII). I agree that the parents’ communication with the school district regarding their concerns pertaining to the student, and earlier referral the student to the CSE, are relevant. I do not agree, however, that the school should have classified the student, when he was first referred for evaluation; as his condition did not previously adversely impact his performance to the extent that he required special services and programs. See J.D. v. Pawlet, 224 F. 3d 60 (2d Cir. 2000); Eschenasy v.

New York City Department of Education, 604 F. Supp. 2d 639 (S.D.N.Y. 2009). The record indicates that prior to his , the school district responded appropriately to the parents’ concerns, with non-special education supports, including.

ORDER

For all of the foregoing reasons, it is hereby ordered that the parents’ request for tuition reimbursement, for their unilateral placement of the student at , is denied.

Dated: July 2, 2015 ___________________________________

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or Board 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.” (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 can be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

School District

1. Impartial Hearing Request, December 17, 2014, 9 pp.

2. Response to Complaint, December 29, 2014, 3 pp.

3. Email thread, May 23, 2014, 2 pp.

4. Email thread, June 2, 2015 through June 12, 2014, 3 pp.

5. Referral to CSE, June 12, 2014, 3 pp.

6. Prior Written Notice, June 24, 2014, 4 pp.

7. Email with consent, June 25, 2014, 2 pp.

8. Email thread, June 25, 2014, 1 p.

9. Email thread, July 23, 2014, 2 pp.

10. Email thread, July 15, 2014 through July 23, 2014, 2 pp.

11. Email thread, July 25, 2014 through July 28, 2014, 2 pp.

12. Email thread, July 25, 2014 through August 1, 2014, 4 pp.

13. Email thread, August 6, 2014 through August 7, 2014, 2 pp.

14. Email thread, August 6, 2014 through August 7, 2014, 2 pp.

15. Email thread, August 6, 2014 through August 11, 2014, 3 pp.

16. Letter to, August 14, 2014, 1 p.

17. Evaluation, August 22, 2014, 2 pp.

18. Report, July 17, 2014 , 16 pp.

19. Evaluation, July 28, 2014, 2 pp.

20. Summary, May 19, 2014, 1 p.

21. Email to, August 26, 2014, 3 pp.

22. Report Card, 2011-2012, 2 pp.

23. Transcript, 2012-2013, 2 pp.

24. Report Card, 2012-2013, 3 pp.

25. Report Card, 2013-2014, 2 pp.

26. Reports, August 25, 2014, 4 pp.

27. Student Test Scores, August 27, 2014, 1 p.

28. Email correspondence, August 28, 2014, 1 p.

29. Email correspondence, August 28 to August 29, 2014, 2, pp.

30. Draft IEP, 2014, 13 pp.

31. Email correspondence, September 5 through September 16, 2014, 1 p.

32. Email correspondence, September 18 through September 32, 2014, 2 pp.

33. Email correspondence, September 30 through October 2, 2014, 2 pp.

34. Email correspondence with attachment, October 9, 2014, 3 pp.

35. Letter to parents, October 10, 2014, 3 pp.

36. Letter to, October 14, 2014, 2 pp.

37. Letter to parents, October 16, 2014, 3 pp.

38. Letter to, October 22, 2014, 2 pp.

39. Letter to parents, October 31, 2014, 2 pp.

40. Letter to, November 7, 2014, 2 pp.

41. Email correspondence, October 15, 2014 through November 6, 2014, 1 p.

42. Letter from , December 19, 2014, 1 p.

43. Letter from , December 19, 2014, 1 p.

44. Email from, December 3, 2014, 1 p.

45. Handbook, June 2014, 35 pp.

Parents

A. Assessment Form, 2015, 12 pp.

B. Prior Written Notice, 2013, 4 pp.

C. Rejection letters, Various, 8 pp.

D. Financial Documents, Various, 9 pp.

E. Letter from December 23, 2014, 2 pp.

F. Report Cards, 2014-2015, 5 pp.

IHO Exhibits

I. Pre-hearing conference summary, January 28, 2015, 1 p.

II. Extension of compliance date, April 7, 2015, 1 p.

III. Subpoena, April 10, 2015, 2 pp.

IV. IHO Disclosure and responses, April 13, 2015, 3 pp.

V. Extension of compliance date, April 25, 2015, 1 p.

VI. Extension of compliance date, May 20, 2015, 1 p.

VII. Closing Brief, School District, 6/24/15, 22 pp.

VIII. Closing Brief, Parents, 6/24/15, 31 pp.

Footnotes

[1] In their complaint, the parents allege that the school district violated its Child Find obligation when it failed to classify the student in April 2013; and that it denied the student a FAPE for the 2014-2015 school year, by its refusal to consider a l placement, and failure to provide an IEP or program recommendation. As a resolution, the parents request a finding that the student was denied a FAPE for the 2013-2014 and 2014-2015 school years, that the parental placement at be deemed appropriate and that the school district be ordered to reimburse (or directly fund) the student’s placement at for the 2014-2015 school year, from , 2014. (School District Ex. 1; Tr. p. 37). On the first date of hearing, the parent’s attorney acknowledged that it was not necessary for me to make a determination as to the appropriateness of the CSE’s failure to classify and place the student, during the 2013-2014 school year, as no relief was sought for that time period. (Tr. pp. 37-38). In its Response, the School District stated that it was unable to make a final placement determination based upon the parents’ failure to make the student available for intake interviews. It stated that is inappropriate and overly restrictive. The school district also alleged that the parents did not provide the required 10 day notice, prior to removing the student from the district and placing him at . (Dist. Ex. 2).

[2] According to the record, the reason for “increasingly,”. (Dist. Ex. 20). The mother explained that his was never toward people; but consisted of . (Tr. p. 409)., a, testified that is an is an that is also used for; and is prescribed for (Tr. p. 152).

[3] According to to stay within the regulations, the meeting should have been held by; however it was delayed by one week because the parents were away, and asked to delay the meeting. (Tr. p. 76).

[4] reported that the student had not yet bought into the program and was not. (Tr. pp. 77-78).

[5] testified that he has had students at the and programs, and that either of them could have been a potential fit the student, as they would have provided academic support and support through the day. (Tr. pp. 248-249). His knowledge of the program consisted of description of it at CSE meetings he attended. (Tr. p. 259).

[6] In a subsequent letter dated, 2014, provided contact information for at the Department of where the parents could access a variety of programs, including. (Dist. Ex .37). In their letter dated 2014, the parents stated that they will reach out to. (Dist. Ex. 38). The student’s mother testified that she attempted to contact him, but that they never connected. (Tr. p. 458). On 2014, stated that he had not heard from the student’s parents. (Dist. Ex. 41).

[7] This was the first communication in which the parents stated they would seek tuition reimbursement for their unilateral placement. (Tr. p. 465).

[8] As explained by, the dean of academics, this is the time needed to remove the which resulted in the students’ placements, and to replace those s, making them college ready. (Tr. p. 625).

[9] The students who were expelled were engaging in with on the school grounds; and (Tr. p. 622). Ms. does not know where the students She explained that the students have a certain level of autonomy, on the large school grounds; and can go into town together, with permission. (Tr. p. 623). She explained that the reason the school does not provide is because it strives to instill in the students the ability to make independent decisions “from an internal compass”. (Tr. pp. 634-635).

[10] It is noteworthy that the student participated in a Skype interview with, without any apparent difficulty; and was able to express . All three of the programs offered by the school district, offered to interview the student via Skype; so the intrusion in the student’s school placement would have been minimal.