Impartial Hearing Decision

HEARING OFFICER'S FINDINGS OF FACT AND DECISION

CASE NO. [redacted]

JURISDICTIONAL STATEMENT AND POSITION OF THE PARTIES

On January 9, 2015 I was appointed as impartial hearing officer to hear the matter of [redacted] pursuant to the Individuals with Disabilities in Education Improvement Act (IDEIA), 20 U.S.C. 1415 (f)(1), Florence County School District Four v. Carter by Carter, 114 S. Ct. 361 (1993), the Education Law, section 4402, and Section 504 of the Rehabilitation Act of 1973, as amended. After a pre-hearing telephone conference which took place on March 6, 2015 between the hearing officer and the attorneys for the parties, the matter came on for a hearing on April 21, 2015 and continued on April 28, 2015, May 27, 2015, June 8, 2015, June 18, 2015 and July 8, 2015. After the last hearing date on July 8, 2015, the parties convened on August 10, 2015 a recorded telephone conference with the hearing officer by which additional evvidence was admitted. There were post-hearing submissions on September 1, 2015 of closing briefs by the attorneys for the parties. There were compliance date extensions requested by the parties and granted by the impartial hearing officer due to extensive testimony/issues.

It is noted that this is a parental request for an impartial hearing dated January 5, 2015 in order to contest the decision of the [redacted] regarding this child's education for the 2014-2015 school year, The complaint may be summarized as follows: (1) starting In the 2012-2013 school year the school district provided the child with an informal program of assistance which included a special education teacher to meet with him at the end of each day to assure that he was taking home his assignments and homework. The informal plan was not effective as the child did not consistentlty do his school work and scored below standards in [redacted]. The district's program continued to fail the child in the 2013-2014 school year, after which the parents enrolled their child at the [redacted], for the 2014-2015 school year. His failure to meet standards illustrates the district's failure since it should have evaluated him, created an IEP and made a program recommendation prior to when it did in June 2014; (2) the district's repeated failures to conduct objective evaluations, hold a CSE review, create an IEP and make a program recommendation is a violation of the district's affirmative obligation of "Child Find." (3) a private evaluation of the child by . [redacted] which was authorized by his parents evaluated the child's condition as [redacted] recommended that the child attend a [redacted] school. The district was supplied with this report and reacted by having the child undergo a [redacted]; (4) the child had an unsuccessful school year during 2013-2014 and then the district initiated the CSE process for the upcoming 2014-2015 school year, The CSE process was initiated with a social history conducted with the parents on June 2, 2014. For its CSE meeting in June 2014, the district failed to conduct a required [redacted]. (5) the CSE met on June 24, 2014 and issued an IEP which classified the child as [redacted], but the parents object to this classification as not sufficiently descriptive of the child's [redacted] issues. The child should have been classified as [redacted]. The CSE did not adequately document its [redacted] classification; (6) the CSE program recommendation of [redacted] was an insufficient program and not reasonably calculated to confer an educational benefit upon this child; (7) the CSE failed to conduct a [redacted] prior to this CSE meeting which rendered this meeting a nullity, invalid and a denial of FAPE; (8) the parents wrote to the district on August 25, 2014 indicating that they were rejecting the district's program as insufficient and enrolling the child at the [redacted] (9) the district failed to offer the child a FAPE for the 2014-2015 school year; (10) the parents' unilateral placement of the child at [redacted] was reasonably calculated to confer a benefit on the child, met equitable considerations and, therefore, warranted being reinbursed for the full 2014-2015 year's tuition at [redacted].

The [redacted] position is a general denial of the parents’ allegations. The DOE also asserts that the IEP educational program developed and recommended at the June 24, 2014 CSE meeting represented a well thought out, structured and effective plan that was reasonably calculated to meet the child's educational needs in the least restrictive environment. In addition, such program would have been implemented by highly qualified staff who possess specialized training with respect to meeting the needs of students with educational profiles like that of this child. The district denies that the educational program offered to this child for 2014-2015 was in any way procedurally or substantively inappropriate. The district, in addition, sets forth the following responses in objecting to particular allegations set forth in the complaint: (1) the district discharged its "child find" obligations properly and offered appropriate academic supports; (2) the district had significant information regarding the child's classroom functioning even in the absence of a formal classroom observation; (3) the [redacted] classification rather than the [redacted]classification was correct since [redacted] was supported by the facts; moreover, the classification issue had no material effect on the IEP program developed for and offered to the child; (4) the complaint inaccurately describes the IEP program offered to the child as [redacted] since this was not the entirety of the supports which did offer the child a FAPE; (5) the CSE did not offer the child an[redacted] because these need to be conducted in an environment where the child attends district schools whereas this child was taken out of the district schools to the [redacted].

THE DEPARTMENT OF EDUCATION’S CASE:

1st Hearing Date: April 21 2015

The DOE was represented by [redacted].,. who made the opening statement on its behalf. The child is a [redacted] resident of the school district. He [redacted]. He is of average to above-average intelligence, has [redacted] and sometimes becomes [redacted] to any interventions that are available to him. [Tr. at 38-39]

The parents were dissatisfied with the child's 6th and 7th grade experience in the school district and so unilaterally placed him for the 8th grade in the [redacted]. They allege that the district failed to meet its "Child Find" obligation [Tr. at 40-41], to identify the child as a special education child who requires special education services in the public school system. [Tr. at 40-41] The child failed to meet [redacted] 6th grade. [Tr. at 41] The district attempted prior interventions before referring him for an evaluation. The child's grades were good which indicated that the prior interventions were working. [Tr. at 44] While it is the truth that the district failed to perform a formal [redacted] of the child, such was not necessary since the district already had a great deal of information available on the child's classroom performance. [Tr. at 47] The district did not do a [redacted] because it wanted first to evaluate him and, if necessary, classify him. The district "did recommend a formal [redacted] to be done during his interventions. [Tr. at 48] He was classified as [redacted] which was appropriate. [Tr. at 50] His [redacted] issues stemmed from his [redacted]. [Tr. at 50-51] His IEP intended for the 2014-2015 school year was reasonably calculated to provide him with a FAPE. [Tr. at 52-53]

[Redacted], esq., who represented the parents at this hearing, presented an abbreviated opening statement which was to be expanded upon with the presentation of the parents' direct case. The complaint was filed on January 5, 2015 for denial of a FAPE during the 2014-2015 school year. [Tr. at 55] The district's 2013-2014 program had not worked, but the "same exact program was recommended for [the child] under an IEP for the 2014-2015 school year with the addition of [redacted]." [Tr. at 56]

Mr. [redacted] presented the district's first witness in its direct case who was [redacted] district. The witness testified that this school year was his [redacted] year there. He has advanced degrees and certifications in [redacted]. The child was a student of his in 6th and 7th grades. He was the child's [redacted]. [Tr. at 74] The child attended public school in the district from K through 6. The child entered [redacted] as a 6th grade student. He left the school district at the beginning of his [redacted]. He is a bright child but showed [redacted] issues at the beginning of the 6th grade. He got along well with other students and with teachers. His parents met with teachers and staff with respect to his issues. [Tr. at 79] In October 2012 [redacted], was assigned to work closely with him 3 times a week to monitor his [redacted] issues. The child had no major disciplinary issues. [Tr. at 82] The child also saw a [redacted] in 6th grade. [Tr. at 83] His grades in 6th grade were good, in the 80's and 90's. [Tr. at 83] He had a collaborative approach with both parents. [Tr. at 86] The parents thought that the child could be doing better. [Tr. at 86-87] The school used an [redacted], in April in 6th grade to discuss his issues. He received [redacted] in small group interaction through the classroom teacher. [Tr. at 91-92] His [redacted] score was [redacted], and the minimum passing score was 320. [Tr. at 92] The district has a process called [redacted]. There are meetings as different approaches are tried by the [redacted]. There are [redacted] (under the Rehabilitation Act of 1973 as amended) efforts before there is a CSE referral. Through 6th grade the child did not appear to be in need of a special education referral. [Tr. at 94] Nor did the parents ask for a special education referral. [Tr. at 95] The mere fact of failing an [redacted] exam does not, per se, trigger a belief in the need for special education. [Tr. at 95-96]

He continued at [redacted] in the 7th grade. He did well in social studies and English but struggled with [redacted]. He was given accelerated [redacted] where he struggled. He sometimes did not do the work [Tr. at 100] His [redacted] teacher, [redacted], offered re-direction including special office hours. Other available options were [redacted]. [Tr. at 102] The parents also hired a private [redacted] tutor. The child did not complete this advanced [redacted] class. [Tr. at 101-102] The child did not avail himself of the free after-school tutoring programs. [Tr. at 103] The child also had access to teachers during lunchtime office hours and after school. That included [redacted]. [Tr. at 104] The child transferred to grade level math in 7th grade. [Tr. at 110] [redacted] was an outside [redacted] that the child worked with. A daily regimen was developed at the school in consultation with [redacted] to monitor his [redacted], classwork and homework and report to his parents. This was in December 2013 of 7th grade. Dr. [redacted] started working with him in beginning of 7th grade. [Tr. at 116] The information was exchanged between teachers, parents and [redacted]. There was also a prescribing psychiatrist. [Tr. at 117-118] There was also [redacted], who met with the team in February and March 2014. [Tr. at 119] This home to school communication and back went on for the whole 7th grade year at [redacted]. [Tr. at 123] In December 2013 the district initiated with the parents a [redacted] plan to accommodate the child's needs. [Tr. at 124] [Exh. D] The witness was a member of the [redacted] team. [Tr. at 124] The home to school communication was incorporated into the [redacted] plan. [Tr. at 126] The [redacted] plan also formalized other approaches: [[redacted]. [Tr. at 128] In late March 2013 Dr. [redacted] did a [redacted] report on the child which the parents supplied to the district. A CSE meeting was held in June 2014. Dr.[redacted] diagnosed the child with [redacted] which he treated with [redacted]. [Tr. at 133] The CSE then classified the child as requiring special education services. [Tr. at 139, 141] His classification was determined to be [Tr. at 141] Services recommended were a [redacted] program. [Tr. at 143-144] He considered this program to be appropriate. [Tr. at 144] A [redacted] program allows a special education child to pull together his issues and create a manageable program. [Tr. at 145] The [redacted] program would be a small group of [redacted]. The [redacted] teacher communicates with the other teachers on a daily basis. [Tr. at 146-147] The child was also recommended for [redacted]. [Tr. at 153] The parents at the CSE meeting did not request a therapeutic school. [Tr. at 156] The CSE looked at Dr. [redacted] recommendations which included a [redacted] school. [Tr. at 155-156] His report also had other recommendations: moving to grade level [redacted] and ongoing [redacted]. [Tr. at 156-157] Dr. [redacted] did not recommend that a [redacted] program was the only appropriate program for the child. [Tr. at 157] Dr. [redacted] also recommended [redacted] which is what the CSE recommended. [Tr. at 159]

The witness was cross-examined by Mr. [redacted]. Mr. [redacted] testified that interventions and supports put into place by the [redacted] plan in December 2013 for the child were:[redacted] This was for the the balance of the 2013-2014 school year. As a whole, he improved only in some areas. [Tr. at 192] Dr. [redacted] was not satisfied and so decided to refer the child to the CSE. [Tr. at 193] The child resented going to a new [redacted] class and the supports offered to him because he felt that he was being singled out from his friends. [Tr. at 194-196] Despite his meetings with Ms. [redacted] 3 times a week after school, his parents reported that he was still coming home without the proper homework and study materials. [Tr. at 201-202] He also resisted changing [redacted] classes and the tutoring sessions. [Tr. at 202]

. 2nd Hearing Date: April 28, 2015

The DOE continued with re-direct testimony from its first witness, Mr. [redacted], on this date. In 6th grade completion of homework was an issue for the child that was raised by the parents. [Tr. at 248] This is a common issue for 6th grade boys. ]Tr. at 250] His 6th grade was the 2012-2013 school year. In the first quarter he received mostly grades in the 90's with a low of 78 in science. [Tr. at 250] In the second quarter his grades were mostly in the 80's with a low of 78 in language. Mr. [redacted] level of concern regarding homework was not especially great since organizational issues are fairly typical for 6th grade children. [Tr. at 255-256] His 3rd marking period was consistent regarding grades and homework. This was at about April 2013. At about this time the parents still espressed concern about his organization and homework. The district response was first a meeting under the [redacted] program. After some time with some interventions put into place, if more is still needed, the [redacted] is followed by an [redacted] meeting which is chaired by Dr. . Neither the child's discipline nor attendance was an unusual problem at this time. [Tr. at 259] At one time he was removed from his Chinese class, but this was not a continuiing problem for the rest of the 6th grade. [Tr. at 261] He did well in his final grades for 6th grade. He had A's and B's except for a 70 in his Chinese class. At that time he did not appear to be a student in need of special services.

He had 7th grade problems in [redacted], but in October 2013 the parents were not seeking special education. In fact the parents reported that the child was making improvements and was reviewing his homework with his parents. [Tr. at 266] A daily behavioral communication plan was especially set up so the parents could be aware daily of the child's homework. This was set up in consultation with Dr. [redacted], the child's private [redacted]. [Tr. at 267-268] He was not recommending special education at the time. [Tr. at 268] Nor did [redacted], think that he needed special education. [Tr. at 270] Neither believed that the child needed a [redacted] placement. [Tr. at 270] As his[redacted]r got worse, the district tried the [redacted] interventions within the classroom. [Tr. at 274] He was moved out of advanced [redacted] in late April 2014 and put in grade level [redacted]. He was still in 7th grade. His behavior in mid-7th grade was within the realm of typical 7th-grade behaviors. [Tr. at 283] In January 2014 Dr. [redacted[ as not recommending referral to the CSE. The parents appeared satisfied with the daily [redacted] plan. [Tr. at 285] Mr. [redacted] attended the child's June 2014 CSE meeting.

Mr. [redacted] did a re-cross-examination of the witness. Mr. [redacted] testified that there was a time when the child became opposed to interacting with him. This was at the end of the 7th grade when Mr. [redacted] was trying to help with the after-school check-in program and trying to talk to the child about the other [redacted] class. The child felt that he was annoying him. This was in mid-to-late November 2013. [Tr. at 292-293]

The next witness in the district's direct case was Ms. [redacted] at the [redacted]. [Tr. at 330-331] She has advanced degrees and certifications in school psychology and bilingual school [redacted]. [Tr. at 331-332] In the district she, among others, provides [redacred] and classroom observations and also chairs CSE meetings. [Tr. at 333] She testified further that the school district has an obligation to exhaust all interventions through regular education before referring a child to the CSE. These are pre-referral strategies. [Tr. at 337-338] In 7th grade, prior to his [redacted] program, he was given [redacted] to be aware of his homework. He was doing well except for math. [Tr. at 352-353] The child had an [redacted] for many years prior to starting in the middle school. He took [redacted] as a result of that. [Tr. at 357] When he skipped his [redacted], he showed more [redacted]. The [redacted] plan recommended for him was appropriate because it was a step up in intervention that was then needed. [Tr. at 360] The parents had expressed their concern about his homework and [redacred] problems. [Tr. at 360-361] In 6th grade he was managing his [redacted] without need for referral to special education. However, in 7th grade, as the year progressed, it appeared that he would need CSE consideration. [Tr. at 366-367] She made the referral with Mr.[redacted]. She completed a [redacred] to supplement one that had been provided by Dr. [redacted]. [Tr. at 367] Her evaluation did not differ from Dr. [redacted] evaluation. [Tr. at 370] With respect to his [redacted] parents, the child had more difficulties with the mother than the father. [Tr. at 372-373] There was no [redacted] because the district already had enough information on him. [Tr. at 376] Dr. [redacted] was reviewed with the parents at the CSE. [Tr. at 378-380] It was decided to classify him as [redacted] because he was not [redacted]. [Tr. at 387] A [redacted]was recommended. [Tr. at 393] The IEP was recommended on June 24, 2014. [Exh. 3] He was also to get [redacted] support. [Tr. at 394-395] Dr. [redacted] made a recommendation for a [redacted] among other recommendations for 2014-2015. [Tr. at 405] She did not agree with the [redacted] recommendation. He recommended this because of not what was happening at school but because of what was happening at home. [Tr. at 406] Dr. [redacted] had confided to her that he was not confident that the parents had the ability to manage the child at home. She did not consider a [redacted] to be appropriate. Dr. [redacted] second recommendation, with which she agreed, was that the child's needs could could be addressed in the middle school with modifications and accommodations. [Tr. at 407-408] A [redacted] program would have been too restrictive for him. [Tr. at 408] He would have felt cstracized and stigmatized. The IEP adopted a recommendation from Dr. [redacted] that there be a [redacted] to monitor the child's [redacted] and well-being. [Tr. at 409] The IEP provides one-hour monthly [redacted] consultation. [Tr. at 409]

[redacted] was cross-examined by Mr. [redacted]. She testified that in evaluating a child with [redacted] issues, the practice is generally to go from [redacted]. [Tr. at 418] The child was resistant to resource room for the 2014-2015 school year because it would stigmatize him as being different. [Tr. at 442-443] Dr. [redacted] wrote in his report [Exh. 7] that the child "does not have the capacity to handle the academic and [redacted] challenges of school in an effective manner." [Tr. at 446] He did not state that the child needs a [redacted] setting because of difficulties in the home. [Tr. at 447]

3rd Hearing Date: May 27, 2015

The first DOE witness on this date was [redacted], one of two [redacted] in the district. She has been in the district since the fall of 2001.She has advanced degrees and certifications in elementary education, special education, school district administration, computing sciences and educational technology. Among others, she chairs three types of [redacted] meetings. At the very bottom level, there are team meetings where the child's teachers and parents meet to informally discuss a possible problem that a child may have. [Tr. at 486-487] She is familiar with pre-referral strategies The [redacted] makes recommendations in a less formalistic way at the first step of the [redacted]. A second step is a formal [redacted] meeting which may involve a medical issue. A document emerges from a [redacted] meeting which looks like an IEP but is very different in tertms of level of support. [Tr. at 490] That [redacted] document follows the child minimally for a year. [Tr. at 491] The child is considered to have a [redacted]. [Tr. at 491] If more is needed there is referral to the CSE for something nore serious. [Tr. at 491]

The child came to the district's middle school in 2012-2013 in the 6th grade. [Tr. at 493] By the spring of 6th grade there were concerns about the child, especially about his [redacted] and study skills. [Tr. at 494] The child had a modified [redacted]. [Tr. at 494-495] Ms. [redacted] and Mr. [redacted] were working with him on his study skills. [Tr. at 495] In late spring, as is the norm, the 6th grade teacher met with the child's 7th grade teacher. [Tr. at 497] The 6th grade [redacted] and [redacted[ stay involved. [Tr. at 497] There was a [redacted] meeting where the child was identified as a child with a disability, namely, [redacted]. [Tr. at 501-502] This condition involved [redacted] issues. [Tr. at 502] A plan of accommodation was developed involving [redacted]. His [redacted] did improve as a result. [Tr. at 504] However, he still had problems in math and French. [Tr. at 504] Mr. [redacted] learned in mid-April 2013 from the parents that they were pursuing a [redacted] evaluation. [Tr. at 504] The child was then referred to the CSE which was in June 2013. The child was diagnosed as a student with a disability. Over the course of 10 months, as a result of very consistent commuication between parents and school and teachers within the school, the child was moved through all 4 levels of [redacted]. [Tr. at 511]

Ms. [redacted] was cross-examined by Mr. [redacted]. The [redacted] plan provided the following services for the child: [redacted]. The general education teachers provided these accommodations. [Tr. at 519] Between December 2013 and mid-April 2014 there was some improvement in behavior and in some classes. However, such improvement did not extend to [redacted]. [Tr. at 520] The child still needed support.

Dr. [redacred] was the next DOE witness. He is the [redacted] in the district. This is his eighth year in the district. He has advanced degrees and certifications in special education, education and administration. He oversees all special education services. There are approximately 725 special education students in the district. [Tr, at 530-531] He also oversees all guidance, social work, psychological, speech and language, occupational therapy and physical therapy services. He also coordinates all [redacted] services. He chairs all initial CSE meetings. The first CSE meeting for the child was held on June 24, 2014. The IEP would have been for the 2014-2015 school year. There was a great deal of information available on the child even without a classroom observation. [Tr. at 535] The parents did not object to the [redacted] classification. [Tr. at 540] The CSE recommended a [redacted] as best for him. [Tr. at 542] He was also to receive [redacred] once a week for 30 minutes. The [redacted] was noted on page 1 of his IEP although inadvertently left off the recommendations section later in the IEP. An [redacted] were also recommended. The parents were concerned that the child might be resistant to [redacted], but they did not object to this recommendation. [Tr. at 544-546] The parents never raised the issue of a a private [redacted] school. [Tr. at 546] He believes that the CSE program would have worked for the child for the 2014-2015 school year. [Tr. at 547] It provided a supportive environment. [Tr. at 547]

After this CSE meeting [redacted] next heard from the parents when they sent him a letter dated August 25, 2014 [Exh. 24] which served notice that they were rejecting the district program and IEP for the child and were enrolling him at the [redacted]. The parents did not ask the CSE to meet again to recosider its recommendation. [Tr. at 549] Dr.[redacted] sent a letter back dated September 5, 2014 where he asked for an explanation as to why they thought that the child's needs were not being met and as to why the CSE could not re-convene to consider their concerns. [Tr. at 549-550] The father then sent another letter dated September 12, 2014 which was highly critical of the district's efforts and programs. [Tr. at 550-551] He also said that reimbursement would be sought from the school district for tuition paid to the [redacted]. [Tr. at 551] The parents had not raised these issues at the CSE meeting. [Tr. at 551] Dr. [redacted] also responded to the September 12, 2014 letter and again offered to meet again with the parents. [Tr. at 552] The parents did not address the idea of re-convening the CSE. [Tr. at 553] However, Dr. [redacted] met with the parents on October 10, 2014. They still did not want the CSE to re-convene.

Dr. [redacted] was cross-examined by Mr. [redacted]. The district authorized a evaluation of the child by Dr. prior to conducting the initial CSE/IEP meeting. The child was diagnosed with [redacted]. The recommendation was for continued individual therapy. [Tr. at 562] At the IEP meeting Dr. [redacted] evaluation was available to the IEP team wherein, on pages 12 and 13, he recommended that the child be placed in a more [redacted] environment. [Tr. at 564-565] However, this was not discussed at the meeting.

Dr. [redacted] was re-directly examined by Mr. [redacted]. Paragraph 2 of the [redacted] evaluation provided for the child to remain in the [redacted] but with more supports and accommodations for his learning and [redacted] problems. This could be done in a [redacted]. His evaluation was not recommending only a [redacted] setting. The paragraph 2 of the evaluation aligned with the support of the CSE recommendations. 4th Hearing Date: June 8, 2015

The DOE continued its direct case with Dr. [redacted] as a witness. He is a [redacted] to the school district. [Tr. at 592-593] He is a medical doctor who did a residency in [redacted] at Mt. Sinai School of Medicine. [Tr. at 593] He also did a child and adolescent [redacted] fellowship at the Long Island Jewish Medical Center. [Tr. at 594] He completed his training in child and adolescent [redacted] in 1990. He did an evaluation of the child in June 2014. [Exh. 15] For his evaluation, he was in touch with the parents, [redacted], the school [redacted], and the child's private [redacted]. [Tr. at 596-597] His primary diagnosis of the child was [redacted]. He recommended in his evaluation the following: continuing academic support at the school setting; additional tutoring services outside of the school; continued individual [redacted]; continued parental involvement with his [redacted]; counseling for the parents to help them cope with their child at home; and some possible use of [redacted] for him to deal with his[redacted] problems]

Dr. [redacted] was cross-examined by Mr. [redacted]. He testified that he did about 35 to 40 referrals from the school district last year for possible consultation. He had a conversation with Dr. [redacted] and with Dr. [redacted] regarding the child. He met with the child and his parents on May 28, 2014. He met with him for 45 minutes. It was no less than 30 minutes. [redacted] children often develop [redacted] secondary to [redacted]. [Tr. at 605-606] The child was receiving individual therapy when he saw him in May 2014. The parents were receiving counseling. The child ws receiving already all of the supports that Dr. [redacted] was recommending when he issued his report in June 2014. However, he would recommend increased supports from the supports already being received. [Tr. at 607] He did not recall that he offered to provide the additional supports himself. [Tr. at 607-608]

THE PARENTS' CASE:

5th Hearing Date: June 18, 2015

The district rested its case.

The parents began their direct case with [redacted], a witness from the [redacted]. She has licenses and certifications in social work and clerical social work. She has been employed at [redacted] as a therapist and clinical supervisor for six years. [Tr. at 645] She oversees a caseload of up to 8 students from intake through various phases of treatment. [redacted]. The therapy involves the use of horses and horsemanship. The therapy is both individual and in a group. [Tr. at 652] There are weekly family therapy sessions and quarterly family workshops. [Tr. at 653] There are specialized groups such as [redacted] groups and [redacted] groups. [Tr. at 654-655]

She was the child's primary therapist. She developed an individualized service plan for him. It was developed on October 3, 2014. [Tr. at 661] His goals are to reduce [redacted] [Tr. at 663, 664] and his [redacted] . [Tr. at 665] The[redacted] management approach or protocol used at ]redacted] is called Positive Parenting With A Plan.

Ms. [[redacted] was cross-examined by Mr. [redacted]. The child has [redacted] When the child becomes very overwhelmed he reverts to [redacted]. [Tr. at 719] Although the child has shown some bad [redacted] and also complained of being bullied while at [redacted], it would not be fair to say that the child has made no progress while at [redacted]. [Tr. at 757-759] He had relapsed into old [redacted]. [Tr. at 759] In March of 2015, the child and others at the [redacted] complained about [redacted]. [Tr. at 766] The [redacted] problem continued through April 2015. [Tr. at 768] As of June 18, 2015, today's hearing date, he is not yet ready to transition from [redacted]. [Tr. at 172]

Ms. [redacted] was re-directly-examined by Mr. [redacted]. Overall although not at all times, the child has improved while at [redacted]. [Tr. at 774]

The next witness for the parents was [redacted]. She has advanced degrees and certifications in education, kindergarten through eighth grade, has taught at [redacted] for 4 years and has taught general education alongside special education teachers. She is the academic director and English teacher. She is familiar with the child as his English teacher and from having taught some of his elective classes. [Tr. at 805-806] The child showed a lot of [redacted]problems after being enrolled at [redacted] in 2014. [Tr. at 806] This included [redacted] while he would engage in shifting responsibility for his problems. [Tr. at 806-807] An individualized academic plan was developed for him on October 3, 2014. This was updated 6 months later. The child has progressed well in English, has less [redacted], and the [redacted] are of shorter duration. [Tr. at 817] [redacted] has conferred an educational benefit on him since his enrollment there. in September 2014.

6th Hearing Date: July 8, 2015

The first witness for the parents on this date was Mr. [redacted]. He has advanced degrees in [redacted] and [redacted]. His employment experience includes clinical director of a residential [redacted] for about 8 years in [redacted], an educational consultant in private practice and then, since 2008, program therapist, clinical director, academic director and, eventually, executive director, all at [redacted] where he is currently. [Tr. at 892] The typical length of stay for a child at [redacted] falls between 15 months and 18 months. The cost of attendance duting 2014-2015 was [redacted] per month. That sum includes room, board, education, [redacted] services and [redacted] care. It does not cover international trips, [redacted], and meetings with [redacted], all of which are billed separately to the parents. [Tr. at 697-698] The parents are paid up in full for the 2014-2015 year at [redacted].

The next witness was the child's father. The child was [redacted]. He and his wife were present at his birth. [Tr. at 907] He had some developmental issues and so was given early intervention services. [Tr. at 907] He needed work with [redacted]. [Tr. at 908] After aging out of early intervention services, he received CPSE services including [redacted] in nursery school. When he went to kindergarten, he continued to receive therapy. He did well in kindergarten in [redacted] but not in first grade. He did not get along with the first grade teacher. [Tr. at 909] A [redacted] was done on the child after first grade by Dr. [redacted]. [Exh.

5] He does not recall whether he shared this evaluation at the time with the school district. [Tr. at 911] The child was then placed on [redacted]. He completed his elementary school education at the local public schools. [Tr. at 911] His 5th grade went well, but his middle school or 6th grade at [redacted] started poorly. [Tr. at 912] That was the 2012-2013 school year. He had trouble with other students and academically. [Tr. at 913] The child resisted efforts to improve his [redacted] and to get him to do his [redacted]. [Tr. at 916]

The father's testimony continued that an IEP meeting took place in June 2014 in the [redacted]. Dr. [redacted]i stated that he did not think that the child was a special education child because he was getting 80's and 90's on his report card. [Tr. at 951] The CSE members discussed the child's testing results. His teachers and his parents discussed his behavior. The CSE then voted unanimously to classify the child as [redacted] since he did not fit the usual classifications. The 2013-2014 school year was an awful school year for him. It was difficult academically, socially and emotionally. [Tr. at 954] In the summer of 2014 the parents sent the child to a [redacted]. The child opposed going there. [Tr. at 955] He began to attend there on July 1, 2014. He looked forward to going back to [redacted] for 2014-2015 and was upset when told that he was going to [redacted] school. [Tr. at 957] Of three [redacted] schools considered, the parents chose [redacted]. The IEP was basically the same as the [redacted] from December 2013 except that [redacted] was added for 2014-2015. The [redacted] contract was signed in early September 2014. [Tr. at 967]

The father believes that the child has done better at [redacted] during 2014-2015 than he would have done at [redacted]. [Tr. at 982-983] He "doesn't love it" at [redacted] [Tr. at 983], but he has improved in reading, stamina and organizational skills.

The father was cross-examined by Mr. [redacted]. In 6th grade the child was doing better at writing his assignments in his planner. [Tr. at 991] His behaviors also improved as he was distracting the class less. The mother thought that this was a great improvement. [Tr. at 993-995] The child played on an elite travel hockey team with 7th graders who gave him a hard time. He participated for the whole season. [Tr. at 1004] The district was very cooperative in taking on the burden of a [redacted], e-mails about the child and a [redacted] book. The mother reported that his [redacted] improved at the time. [Tr. at 1009-1010]

He testified further under cross-examination that in the middle of March 2014 the child was demonstrating the kind of [redacted] that were appropriate and were supposed to be recorded in the [redacted] book. [Tr. at 1021] However, this was a one-week anomaly, and the child was not generally improving.

An issue arose while the child was at [redacted] about [redacted] by the child. It occurred after he went home to for a week or so. [Tr. at 1044]

District exhibit 43 reports from [redacted] that the child was assigned an independent honors study on which he did not do any work at all. This is similar to reports that he was criticizing about the child's difficulties at [redacted] This was in April 2015. [Tr. at 1044]

His ex-wife reported that some boys at [redacted] were mistreating the boy by spraying something in his face. [Exh. 44] [Tr. at 1031]

The child preferred playing video games on the Internet to doing his homework. [Tr. at 1052-1053] This problem was expected to disappear at the [redacted] school. [Tr. at 1053-1054] The father was re-directly examined by Mr. [redacted]. The child continued to have misbehavior problems through the end of the 2014-2015 school year at [redacted]. [Tr. at 1057]

Telephone Proceeding: August 10, 2015

The purpose of this proceeding was to enter into evidence a document without subjecting the parties to the need for convening an additional formal impartial hearing. The telephone proceeding was recorded for the transcript record. The document of concern was one signed by the parents with [redacted], educational consultants that the parents had engaged for their child. For various reasons, the document was not available to go into evidence during the prior formal hearing sessions. Therefore, it was placed into evidence during this telephonic proceeding as district exhibit 45, the parents retaining of Associates. [Tr. at 1101-1102]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Two purposes of the Individuals with Disabilities in Education Improvement Act (IDEIA) (20 U.S.C. Sections 1400-1482) are: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. Sections 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. Of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEIA, and (b) the IEP developed by its CSE through the IDEIA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-207; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEIA procedures, not all procedural errors render an IEP legally inadequate under the IDEIA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at 10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEIA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. Section 1415[f][3][E[[ii]; 34 C.F.R. Sect. 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-526 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at 2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at 7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp 2d 415, 419 [S.D.N.Y. 2007] aff’d, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

, The IDEIA 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. Sect. 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 parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and … affords the student with an opportunity greater than mere ‘trivial advancement’” (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-119 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at 15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. Sect. 1412[a][5][A]; 34 C.F.R. Sect. 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs (34 C.F.R. Sect. 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at 6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. Sect. 300.320[a][2]; 8 NY CRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. Sect. 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Education., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Education, 06-029; Application of a Child with a Disability, Appeal No.,04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim ( Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369-370 [1985]). 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 370-371; 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 (Burlingtom, 471 U.S. at 370-371; see 20 U.S.C. Sect. 1412[a][10][C][ii]; 34 C.F.R. Sect. 300.148).

The burden of proof is on the school district (DOE) during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (Educ. Law Sect. 4404[1][c]; see M.P.G. v. New York City Dep’t of Education, 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]). Thus, the school district bears the burden of demonstrating the appropriateness of the program recommended by its CSE. New York State restored this burden to the school district about four years ago in the aftermath of Schaffer, et al. v. Weast., et al., 2005 WL 302815 (2005). The DOE is thus subject to the body of case law which prevailed prior to Schaffer. See Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed. Dept. Rep. 487, March 11, 1983. To meet its burden, the Department of Education is required to show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Board of Education v. Rowley, 438 U.S. 176 [1982]) and that the recommended program is the least restrictive environment for the child. {34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]} An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed. Dept. Rep 487, March 11, 1983.

It is clear that the legislative intent of 20 U.S. Code Section 1412 of the Individuals with Disabilities Act (IDEA) is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive and independent lives as adults to the maximum extent possible. In furtherance of this, the IEP is designated, essentially, as the blueprint for ensuring the integrity and appropriateness of the child’s education. The IEP team’s determination of how that child’s disability affects his involvement and progress in the general curriculum is the primary tool by which the protections of the IDEA are implemented per sections 1436(d) and 1414(d). It is hoped that, as a tool, the IEP will be proactive rather than merely responsive to crises in educational management. In furtherance of this goal, the Department of Education is constrained to develop a plan which meets the requirements of service delivery in the “least restrictive environment.” Specifically, children with disabilities must be educated with children who are not disabled to the maximum extent possible. Separation or removal from the mainstream curriculum is indicated only where the nature or severity of the disability is such that an education in regular classes with the use of supplementary aids and services cannot be achieved successfully.

Although the IDEIA mandates an individualized “appropriate” education for disabled children, it does not require a school district to provide a child with the specific educational placement that his parents prefer. See, E.S., 135 F.3d at 569. Nor does the IDEIA require a school district to “either maximize a student’s potential or provide the best possible education at public expense.” Fort Zumwalt, 119 F.3d at 612. The purpose of the IDEIA is “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.” Rowley, 458 U.S. at 192. The IDEIA’s requirements are satisfied when a school district provides individualized education and services sufficient to provide disabled children with “some educational benefit”. Id. at 200.

In the instant case, the child in question, a [redacted] during the course of the 2014-2015 school year, was unilaterally placed by his parents for the eighth grade at [redacted], a [redacted]. The child attended district schools from kindergarten through seventh grade, the 2013-2014 school year. He was a general education non-classified student through the sixth grade. Academically, he was an average to above-average student who increasingly showed [redacted] problems through sixth and seventh grades. The district began to perform various interventions to address these problems, starting with [redacted] an in his sixth grade. He received [redacted], in English and language arts [ELA] in small group intervention through his classroom teacher because his [redacted] while the minimum passing score was 320 [Tr. at 91-93] The district used a process called [redacted], whereby meetings were held for different approaches to be tried by the [redacted]. The district plan was to try different approaches short of a special education referral because the child before the 2014-2015 school year did not appear to be in need of a special education referral. [TR. at 94] There was no request by the parents for a special education referral before the CSE met in June 2014. In his seventh grade year, 2013-2014, in [redacted] in the school district, the child began to have particular problems in his accelerated [redacted]h program which appeared to increase his [redacted] problems. His [redacted] teacher offered re-directionincluding special office hours. Other options made available were [redacted], an after-school homework club and [redacted]. [Tr. at 102] The child also had access to teachers during lunchtime office hours and after school. The child generally did not avail himself of these opportunities and transferred from accelerated [redacted] to a regular [redacted] class. [Tr. at 110]

In December 2013 of the 2013-2014 school year, his seventh grade year, a [redacted] plan was put in place for the child. [Exh. D] [Tr. at 124]The plan encompassed such [redacted]. [Tr. at 128] These accommodations were considered a step up from earlier interventions. and were designed to address the child's [redacted] which impacted his completion of homework and classroom learning. This was intended for the balance of the 2013-2014 school year. The [redacted] committee worked with Dr. [redacted] [hereinafter Dr. [redacted]], an outside [redacted]t retained by the parents to work with the child. The [redacted] committee developed in consultation with Dr.[redacted] a daily regimen to monitor the child's [redacted], classwork and homework and to report to the parents. The plan was to exchange information on the child between teachers, parents and Dr.[redacted]. Dr. [redacted] had started to work with the child in beginning of seventh grade. [Tr. at 116] There was also a prescribing [redacted]. [Tr. at 117-118] The parents also retained [redacted], an educational consultant who met with the [redacted] team in February or March of 2014. [Tr. at 119]

In March 2014 Dr. [redacted] did a [redacted] report which the parents supplied to the school district. Since the child continued to demonstrate difficulties with [redacted], the district in April 2014 referred his case to the CSE for evaluation to determine whether he qualified as a [redacted] who required special education programs and services. [Exh. 17] The CSE met in June 2014 and diagnosed the child with [redacted] which Dr. [redacted] treated with [redacted]. [Tr. at 133] The child was classified as [redacted] and in need of services. [Tr. at 139-141] The CSE considered this classification to be more accurate than [redacted] because his [redacted] issues were secondary to his [redacted]. [Tr. at 381, 390-392] He was recommended for a [redacted] program which was designed to pull together the issues of a special education child and to create a manageable program. [Tr. at 143-145] The [redacted] would be a small group of [redacted]. The [redacted] teacher would be communicating on a daily basis with the child's other teachers. [Tr. at 146-147] The child was also recommended for [redacted] (although this recommendation appeared at the beginning of the IEP but was left out later in the body of the IEP which was apparently an oversight). [Tr. at 153] [Exh. 3-1, Exh. 1-4] Finally, the CSE recommended that [redacted] and a redacted] be developed. There was clearly no [redacted] or [redacted] done prior to the CSE meeting.

Dr. [redacted]r report [Exh. 7]was utilized by the CSE team at its June 2014 meeting. The child was tested over a four-day period encompassing February 18, 20 and 21 of 2014 and March 11, 2014. In his conclusions Dr. [redacted] offered alternate recommensdations, In his first recommendation he suggested that the CSE consider a [redacted] program [Tr. at 7-13] [TR. at 155-156] However, in his second recommendation, he pointed out that if the child "were to remain at [redacted], he woud rewuire support modifications and accommodations for his [redacted] problems." [Exh. 7-13] This could be done in a [redacted]. [Exh. 7-13] [Tr. at 159] The district recommended a resource room which was in accord with Dr.[redacted] second recommendation. The parents who were at the CSE meeting did not request a [redacted]school. [Tr. at 156]

The district did its own [redacted] of the child to supplement Dr. [redacted] [redacted].[Exh. 7] A [redacted] was done by [redacted] [Exh 11] and an academic testing evaluation by examiner [redacted]. [Exh. 12] There was also a [redacted]. [Exh. 15] These supported the recommendations that were made by the CSE for special education services. The district did not do a classroom [redacted] of the child in connection with the CSE meeting

The parents' complaint argues that the district failed to properly discharge its "child find" obligations under IDEIA. The IDEIA requires that a school district look affirmatively for students under its jurisdiction who have special needs. In Application of a Student with a Disability, Appeal No. 12-138 at pages 13-14, the Court held as follows:

"A district's child find duty is triggered when there is 'reason to suspect a disability and reason to suspect that specal education services may be needed to address that disability' (J.S., 826 F.Supp.2d at 660; New Paltz, 307 F.Supp.2d at 400 n. 13, quoting Dept. of Educ. v. Cari Rae S., 158 F.Supp.2d 1190, 1194 [D.Haw 2001]; ...(further citations omitted). To determine that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate. (A.P., 572 F.Supp.2d at 225, citing Bd of Ed. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]) States are encouraged to develop 'effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist teachers without an automatic default to special education,' (Los Angeles Unified Sch. Dist. v. D.L., 548 F.Supp.2d 815, 819 [C.D. Cal. 2008], citing 20 U.S.C. paragraph 1400 [c] [5])"

The district argues that it did not violate "child find" because it employed appropriate pre-referral strategies to address the child's educational difficulties and when these were exhausted the district did refer him to the CSE for [redacted] classification and services. The law requires that "child find" be implemented in conjunction with the requirements of the "least restrictive environment" so that there is not an "over-identification" and an "automatic default:" toward special education. The district was using its pre-referral strategies and interventions to determine if the child would respond with success There can be no guarantee of instant success from any intervention or strategy. Only upon the inconsistency of the success of an intervention or strategy did there artise a reasonable basis to believe that the child may need special education services. Here the evidence is clear that the [redacted] and performance of this child were closely monitored from the sixth grade with incremental strategies employed to monitor for any improvements before intensifying supports. Thus, I find that the district did not violate the "child find" provisions of the IDEA.

The parents' complaint artgues that the district did not conduct a classroom [redacted] of the child as part of the initial referral process. The district argues that while this is true and that while an observation is normally required as part of the evaluation process of a child for [redacted], the district should be excused for this since it already had a plethora of information on the child from his close monitoring in recent years. The district had written reports and classroom reports from his seventh grade teachers as well as a daily record from November 2013 regarding his classroom [redacted] and performance of homework. It was these reports and daily record that, along with his evaluations, ultimately triggered his referral to the CSE. The record is clear that the mere absence of an observation is not a per se violation of FAPE, and the parents present no evidence that the absence of an observation impeded in any way the IEP process or the child's right to receive a FAPE. (See Luo v. Baldwin Union Free Sch. Dist., 2012 WL 723173 at *4-*5 [E.D.N.Y. Mar. 5, 2012]; Davis v. Wappingers Cent. Sch. Dist., 2011 WL 2164009, at *2 [2d Cir. 2011])

The parents' complaint also argues that the district committed two procedural errors which negate the legality of its IEP process, namely, the absence of an [redacted] and a [redacted] prior to the convening of the CSE in June 2014. The district does not dispute that the district failed to conduct an [redacted] or develop a [redacted] prior to developing and recommending an IEP. However, these omissions do not by themselves render an IEP process defective or illegal. While the student's need for a [redacted] must be documented in the IEP, and prior to the development of the [redacted], an [redacted] has [been] or will be conducted ("Guide to Quality Individualized Educatin Program [IEP] Development and Implementation," at p. 25 [emphasis in original], it does not follow that in every circumstance an [redacted] must be conducted and a [redacted] developed at the same time as the IEP (see Cabouli v. Chappaqua Cemt. Sch. Dist., 2006 WL 3102463 [2d Cir. Oct. 27, 2006] [noting that it may be appropriate to address a student's behaviors in an IEP by noting that an [redacted] and IEP will be developed after a student is enrolled at the proposed district placement]). In this case, the district conformed to the guideline as cited above. The CSE did in fact recommend that the child undergo an [redacted] and have a [redacted] developed. It was reasonable to conduct the [redacted] and develop the [redacted] in eighth grade, the 2014-2015 school year, when the child would have new teachers and start fresh with them. [Tr. at 97-98, 100, 276 and 347] The purpose of an [redacted] and [redacted] is to analyze and address a student's impeding [redacted] and needs to be undertaken and implemented when the student is attending school (Cabouli o/b/o Marcontell v. Chappaqua Cent. Sch. Dist., 202 Fed. Appx 519, 2006 WL 3102463 [2d Cir. Oct. 27, 2006]. Where an IEP provides for interventions to address [redacted] and recommends that an [redacted] be undertaken, the IEP cannot be found to have denied a FAPE (A.C. and M.C. v. Bd. of Educ. Chappaqua Cent. Sch. Dist., 553 F.3d 165 at 172 [2d Cir. 2008] Thus, the parents' complaint is incorrect on the law that the mere omission of the [redacted] and the [redacted] from the IEP recommendation renders the IEP process in this case as illegal.

The parents' complaint also alleges that the child's special needs classification of [redacted] was incorrect and that [redacted] should have been the correct classification. On the contrary, the overwhelming cvidence in the record demonstrates that the child's primary condition is [redacted] which belongs to the [redacted] classification. It is when the child undergoes [redacted] - which stem from his [redacted] - and then suffers academically that he becomes frustrated and exhibits [redacted] and [redacted]. Dr. [redacted] confirmed this. [Tr. at 597] Dr. [redacted] confirmed that the child's [redacted] is secondary to his [redacted]. The parents produced no testimonial or documentary evidence to establish that his [redacted] issues were paramount over his [redacted].

The parents complaint also alleges that the IEP-recommended special education services of [redacted] were substantively inaequate. The parents, however, produced no witnesses to rebut the witnesses from the district who supported these recommendations. These witnesses included [redacted], the child's guidance counselor, and [redacted]. [redacted] also noted in her testimony how the recommended services fulfilled the recommendations in Dr. [redacted] second paragraph recommendations in his private [redacted]. [Tr, at 408]

The parents' complaint also alleges that the district inappropriately ignored the primary recommendation of Dr. [redacted] which was for a [redacted] program. Instead the district focused on Dr.[redacted] secondary recommendation in his second paragraph which addressed the district's [redacted]. The parents argue that the only real recommendation was for the [redacted] setting and that Dr. [redacted] pointed out that the child should "be considered for an alternative educational setting that can more effectively address his academic and [redacted] needs." [Tr. at 7-13] His second paragraph, the parents note, states what the child would require if he were to remain in the district but that remaining in the district was not an actual recommendation by Dr. [redacted]. The IDEIA requires that the CSE consider private evaluations obtained at private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]). However, "consideration" does not require substantive discussion, that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight (T.S. v. Bd. of Educ., 10 F.3d 87, 89-90 [2d Cir. 1993]; G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 947 [1st Cir. 1991]; see Michael P. v. Dep't of Educ., 656 F.3d 1057, 1066 n.9 [9th Cir. 2011]; K.E. v. Indep. Sch. Dist., No. 15, 647 F.3d 795, 805-806 [8th Cir.2011]; Evans v. Dist. No. 17, 841 F.2d 824, 830 [8th Cir. 1988]; James D. v. Bd. of Educ., 642 F.Supp.2d 804, 818 [N.D. Ill. 2009]). Thus, while the district was required to consider the parents' privately-obtained evaluation, it was not required to adopt the private evaluator's recommendation of a [redacted] setting, See M.H. v. New York City Dep't of Educ., 2011 WL 609880, at *12 [S.D.N.Y. Feb 16, 2011].

The Court of Appeals for the Second Circuit had adopted a two-pronged test with respect to the program and placement of a child with a disability: (1) whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child; and (2) if not, whether the school has mainstreamed to the maximum extent appropriate. P v. Newington, Board of Education, 546 F.3d 111, 119 (2d Cir.2008).

The law requires the DOE to provide “some educational benefit” to disabled children. The DOE is not required to maximize the educational potential of disabled children and to provide everything educationally that loving parents might want for their child. As indicated above, New York State has restored the burden of proof in these IDEIA cases to the school district. It is clear from the testimonial and documentary evidence that the DOE has met its prong 1 burden under Burlington/Carter that it offer a disabled child an appropriate program and placement in the “least restrictive environment” The child was not denied educational benefits to which he is legally entitled. The DOE has provided the child with a FAPE. The DOE program and placement for the 2014-2015 school year in question was reasonably calculated to provide some meaningful educational benefit. The parents’ complaint is simply not supported by the credible evidence.

Since the DOE has met its prong 1 burden, there is no need under prevailing law to consider the parents’ burdens under prongs 2 and 3.

WHEREFORE, it is hereby ordered that :

1. The [redacted] district acted appropriately to offer the child in question a FAPE for the 2014-2015 school year.

2. The school district) was and is not required to provide reimbursement to the parents of the child for tuition and any other expenses paid by them for their unilateral placement of the child at the [redacted] school in [redacted] for the 2014-2015 school year in question.

3. This decision is subject to appeal to and review by the State Review Officer. Dated: October 19, 2015 Actual Record Close Date: October 19, 2015

MARTIN SCHIFF

IMPARTIAL HEARING OFFICER