Impartial Hearing Decision

FINDINGS OF FACT & DECISION

Case Number: DA-058-13

NYS Identifier Number 79950

Student's Name: (“Confidential”)

Date of Birth: [Redacted text]

District: Herricks UFSD

Hearing Requested By: Parent

Dates(s) of Hearing: 11/19/13, 12/10/13, 12/12/13, 03/20/14, 04/29/14, 05/23/14 &

06/12/14

Actual Record Close Date: September 22, 2014

Hearing Officer: Edgar De Leon NYS Case No. 79950

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney DISTRICT 11/19/13 12/10/13 12/12/13 03/20/14 04/29/14 05/23/14 06/12/14

Director of Pupil Services DISTRICT 11/19/13 12/10/13 12/12/13 03/20/14 04/29/14 05/23/14

School Psychologist DISTRICT 11/19/13 12/10/13 Special Education Teacher DISTRICT 12/10/13

Chairperson - Special Education DISTRICT 12/10/13 03/20/14 06/12/14

Speech & Language Teacher DISTRICT 12/12/13 Special Education Teacher DISTRICT 12/12/13 Attorney PARENT 11/19/13 12/10/13 12/12/13 03/20/14 04/29/14 05/23/14 06/12/14 Associate Attorney PARENT 12/10/13

Mother PARENT 11/19/13 12/10/13 12/12/13 03/20/14 04/29/14 05/23/14 06/12/14

Pe 7) Director - Special Education PARENT 03/20/14 04/29/14 a |) School Psychologist ~ PARENT _.06/12/14

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For #of Pages Psychological Evaluation 11/12/10 PARENT 05 pages

B. Report Card/ 5" Grade 2010/11 PARENT Cc Annual Review 02/23/11 PARENT 03 D ESa2! 04/01/11 PARENT 03 Report Ane! 04/11/11 PARENT 03 Report Enrollment Contract 05/03/11 PARENT 03 IEP Progress Report 06/21/11 PARENT 05 ES © ogress 06/21/11 PARENT 02 Report Report Card/ Grade 6 2011/12 PARENT 04 PSog'ess 01/10/12 PARENT 02 Progress Report for Goals 01/18/12 PARENT 07 And Objectives EE Annual 03/30/12 PARENT 01 Review E-Mails Re: Enrollment 06/21/12 PARENT 08 Herrick’s Middle School Academic Progress Report 10/15/12 PARENT 08 Student Observation Report 10/18/12 PARENT 02 Teacher Rating Scales 10/18/12 PARENT 04 Proposed CSE Notification 04/23/13. PARENT 02 Proposed CSE Notification 04/24/13 PARENT 02 Request for Impartial Hearing 09/17/13 PARENT 20 Disputed Issues, Proposed Resolution Affidavit of a 05/20/14 PARENT 01 Closing Statement 08/13/14 PARENT 19 CSE Evaluation Report-Grade 12/07 DISTRICT 02 2 Teacher: iii Evaluator: a’ 06 pages

GE. Re-Evaluation Psychologist 02/12/08 - DISTRICT 07 Assessment Examiner (ii & School Psychologist IEP 2009-2010 Grade 4 05/02/09 DISTRICT Attendance Sheet Annual 01/05/10 DISTRICT 07 Review. Therapist Sama 02/28/08 11 pages

a PT, OP

GS PT, DBT

IEP Amendment Agreement 01/26/10 DISTRICT 01 And Consent Form IEP 2009-2010 Grade 4 01/26/10 DISTRICT 10 ee Annual 05/18/10 DISTRICT 02 Review Scores. Examiner: Progress Report for Goals 09/09/09- DISTRICT 06 & Objectives 2009-2010 06/25/10 Elementary School Progress Undated DISTRICT 02 Grade 4- 2009-2010 Teacher: 10 IEP 2010-2011 Grade 5 05/19/10 DISTRICT 11

Attendance Sheet

11 UFSD 04/19/12 DISTRICT 14

Student Information Summary

IESP 2012-2013 Grade 7

12 Letter wed, 05/24/12 DISTRICT 01 to Dir

Of Pupil Services

13 Letter from A = (06/28/12 DISTRICT 01

Dir. Of Pupil Services to Mr. and 14 Letter from A 08/31/12 DISTRICT 01

15 Letter from SM, 09/13/12 DISTRICT 01

Dir. Of Pupil Services to Mr. and Mrs.

16 Meeting Notice CSE for 9/21/12 09/13/12 DISTRICT 02

@ 10:00 a.m. from Dr. Stephanie

Knowles, Middle School Chairperson to parents

17 Letter oe 09/17/12 DISTRICT 02 i to Dir of Pupil Services to Mr. and Mrs.

18 Letter from A Dir. 09/24/12 DISTRICT 02

Of Pupil Services to Mr. and Mrs. a 19 Prior Written Notice Proposed 09/25/12 DISTRICT 03

Re-Evaluation and Request for Consent from Dr. aaa

GE Middle School Chairperson

Consent Form for Re-Evaluation

20 Classroom Observation-Grade 7 10/24/12 DISTRICT 02

Teacher: J Subject:

English 21 Social History Update by 10/25/12 DISTRICT 04

22 Psyco-Educational Evaluation 11/20/12 DISTRICT 07

Grade 7 Examiner:

Psy. D. School Psychologist

23 Letter from Dr. ig 01/15/13 DISTRICT 14

Special Education

Chairperson to Mrs. HM Re:

2012-2013. Herricks UFSD 11/30/12. Student Information Summary 2012-2013 Grade 7 Attendance Sheet

24 Prior Written Notice Proposed 11/30/12 DISTRICT 02

Continuation for Special Education

From Dr. as Middle School Chairperson

25 E-Mail from Dr. 01/11/13 DISTRICT 01 to a 26 Letter from iS = 02/05/13 DISTRICT 02 es io ee Dir of Pupil Services

27 Letter tae 03/11/13 DISTRICT 01 a to , Dir of Pupil Services

28 Herricks UFSD Student 04/23/13 DISTRICT 13

Information Summary 2013-2014- Grade 8. Attendance

Sheet 4/23/13. Attendance

Sheet 4/24/13/

29 Prior Written Notice Proposed 04/24/13 DISTRICT 02

Continuation for Special Education

From Dr. Middle

School Chairperson to Parents

30 E-Mails Between NN «-04/22/13- DISTRICT 03

And Dr. RRand §=03/11/13 a 31 E-Mail from Dr. J 04/29/13 DISTRICT 01

EE Middle School Chairperson to 32 Letter from 06/12/13 DISTRICT 02

|

33 Letter from 06/20/13 DISTRICT 50

Dir of Pupil Services to Mr. and GR. Procedural Safeguards

Notice with Due Process Complaint Form

34 Letter from 09/18/13 DISTRICT 02

Dir of Pupil Services to Edgar

De Leon

35 Letter from as 09/19/13 DISTRICT 01

Dir of Pupil Services to Mr. and Mrs.

36 EE Summary and 05/29/13 DISTRICT 15

IESP 2013-2014

37 Resolution Meeting Summary 10/01/13 DISTRICT 01

38 Invoice (EE School) 09/05/12 DISTRICT 02

39 Invoice Gi School) 09/09/12 DISTRICT 02

40 GE School- Class 2012-2013 DISTRICT 01

Profile

41 Ge School - Class 2013-2014 DISTRICT 01

Profile

42 E-Mail Thread Between Counsel 04/07-11/14 DISTRICT 04

43 Class Profile 2012-2014 DISTRICT 02

44 Percentile Ranks & Undated DISTRICT 01

Classification Rating Chart

45 Letters- Non-Resident Parent 04/19/12 DISTRICT 03

Nonpublic Schoo! Placement 05/29/13

Acknowledgement/ Consent Form ee ee ese - . aoe Fi a.

46 ~ Closing Statement >. 08/13/14. DISTRICT 32 NYS Case No. 79950

On September 24, 2013, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law and Part 200 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parent of an (14) year old student attending a private school and the Herricks Public Schools, UFSD, concerning the student’s special education program. After adjournments were granted on consent or for cause, the impartial hearing was held on November 19, 2013, December 10, 2013, December 12, 2013, March 20, 2014, April 29, 2014, May 23, 2014 and June 12, 2014. The parties opted to submit written closing statements, which after adjournments were requested and granted on consent, were received on August 13, 2014. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student’s Individualized Education Programs (“IEP”) dated November 30, 2012, and April 23, 2013 are procedurally and substantively flawed. (See Parent's Due Process Complaint - “DPC") Accordingly, the Parent unilaterally placed the student a private school for the 2012-2013 and 2013-2014 school years. (Id.) The Parent seeks the following relief at the impartial hearing: (a) that the District reimburse the Parent for the cost of the student's tuition at the private school for the 2012-2013 and 2013-2014 school years; and (b) that the District reimburse the Parent for the cost of the student’s application fees and other associated fees for the student’s attendance at the private school for the 2012-2013 and 2013-2014 school years.

THE SCHOOL DISTRICT'S CASE

The District argues that the student’s private school is not approved by New York State. (T-28) The Parent removed the student from the school district (the “District of Residence” - hereafter “DOR”) and placed him at the private school for the 2010-2011 school year without giving the DOR any notice of any disagreement with the student's Individualized Education Program (“IEP”). (T-30) The student remained at the private school for the 2010-2011 and 2011- 2012 school years and received Individualized Education Service Programs (“IESP”) from the school district where the private school is located, i.e., the “District of Location” (“DOL”), for his related services. (Ild.) The student's IESP dated April 19, 2012 indicates that the Parent signed consent for “parents who place their children in non-public schools” for the June 1* deadline, an indication that the Parent intended to have the student remain at the private school for the 2012-2013 school year. (T-31)

The DOR further argues that in late may of 2012, the Parent sent a letter to the DOR stating that she was “considering” returning the student to the DOR. (ld.) Subsequently, the DOR held a meeting on June 4, 2012 seeking clarification from the Parent. (T-31-2) It is the DOL, not the DOR that is responsible for holding the student's Committee on Special Education (“CSE”) meetings. (T-32) Nevertheless, the DOR offered to hold a CSE meeting for the student if the Parent wanted to re-enroll the him at the DOR. (T-33) The DOR received no response from the Parent until August 31, 2012, when the Parent requested that the DOR hold a CSE meeting for the student's 2013-2014 school year. (T-33-4) The DOR then held IEP meetings for the student in November of 2012 to develop an IEP for the remainder of the 2012-2013 school year and in April of 2013 to develop an IEP for the 2013-2014 school year. (T-34)

~ The DOR also argues that it is unclear whether the private school participates in any state testing and/or regents. (T-35) In a letter dated June 12, 2013, the Parent rejected the DOR’s CSE’s recommendations. (T-35-6) The Parent never had any intention of returning the student to the DOR. (T-36) The student is a “ten-month” student. (T-37) The DOR request that the Parent’s request for tuition reimbursement for the 2012-2013 and 2013-2014 school years should be denied.

The DOR called (6) witnesses to testify on its behalf and submitted (46) documents in evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the DOR is incorporated in the decision below.

THE PARENT'S CASE

The Parent reserved on making an opening statement and ultimately did not do so. (T-37 & 472) In her closing written statement, the Parent argued that the DOR refused to hold a CSE meeting for the student's 2012-2013 school year. (P-U) Because of the DOR’s failure to hold a CSE meeting for the student, she notified the DOR in a letter dated August 31, 2012 of the student's unilaterally placement at the private school for the 2012-2013 school year. (Id.) The Parent concedes that the DOR stated that a CSE meeting would not be held for the student unless she re-enrolled the student at the DOR. (Id. & D-13)

The Parent further argues that she consented to the DOR holding CSE meetings for the student’s 2013-2014 school year. (P-U) CSE meetings were held by the DOR for the student’s 2013-2014 school year on November 30, 2012 and April 23, 2013. (Id.) The DOR never provided her with “Prior Written Notice” (“PVN”) as required by law. (Id.) In a letter dated June 12, 2013, the Parent gave the DOR “notice” that she was rejecting the DOR’s CSE’s recommendations and again placing the student at the private school for the 2013-2014 school year. (Id.)

Finally, the Parent argues that the student's private school placement for the 2012-2013 and 2013-2014 school years was appropriate and that the student progressed thereat. (Id.) The Parent further argues that she fully cooperated with the DOR. (Id.)

The Parent called (3) witnesses to testify on her behalf and submitted (21) documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the Parent is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the school district complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See 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] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007})

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. (See 20 U.S.C. § 141 5/fIS][E][ii]; 34 C.F.R. § 300.513[al[2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and 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 IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received aFAPE. (See 20 U.S.C. § 1415/f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (See 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." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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." (See 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] and Grim, 346 F.3d at 379) Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and 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." (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ.., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some ‘meaningful’ benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[al[2]; 8 NYCRR 200.1[cc], 200.6[a][1]; 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] and 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. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i)), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The District 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. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [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. (See Burlington, 471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra_v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005)) "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. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent.seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matreiek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and MS. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000)) "Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents’ placement...."" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents’ unilateral placement is appropriate, "[uJltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits.” (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child." (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

‘No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive » educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C]liii[I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision.

(See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07-120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations “include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters." (See Wolfe _v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], affd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA erovides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]: Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)

Here, the threshold question is whether it is the DOR or the DOL that has the responsibility of evaluating and producing an IEP for the student. The Parent concedes that the student resides at the DOR, but attended a private school within the DOL for the relevant school years. (P-S & P-U)

Pursuant to Education Law § 3602-c, boards of education of all school districts of the State shall furnish services to students who are residents of this State and who attend non-public schools located in such school districts, upon the timely written request of the parent or person in parental relation of any such student. For the purpose of obtaining education for students with disabilities such request shall be reviewed by the CSE of the school district of location, which shall develop an IESP for the student based on the student's individual needs. (See Educ. Law §§ 3602-c[2][a], {2]{b][1] - emphasis added) A school district of location recovers from the school district of residence the evaluation costs, CSE administrative costs, and special education services costs incurred. (See 8 NYCRR § 177.2, see also “Guidance on Reimbursement Claims for the Cost of Providing Special Education Services to Parentally-Placed Nonresident Students Pursuant to Education Law Section 3602-c’” located at “www.p12.nysed.gov/specialed/publications/policy/reimbursement608.htm” emphasis addeq)

According to a memorandum published by Office of Special Education and titled “Chapter 378 of the Laws of 2007 - Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the [IDEA] 2004 and New York State (NYS) Education Law Section 3602-c,” (Office of Special Education guidance memorandum) dated September 2007, with respect to child find requirements and the provision of special education programs and services to students parentally placed in private schools within the district of location, the Office of Special Education guidance memorandum notes, in pertinent part, the following:

The district of location is responsible for child find for students who are parentally placed in non-public schools located in their geographic boundaries. The CSE of the district of location must develop the IESP for students with disabilities who are NYS residents and who are enrolled by their parents in nonpublic . . . schools located in the geographic boundaries of the public school. The IESP must be developed in the same manner and with the same contests as an IEP is developed. (See Office of Special Education guidance memorandum at pp. 4-5 - emphasis added) Available at http:/Awww.p 12.nysed.gow/specialed/publications/policy/nonpublic907 pdf, United States Education Department guidance can be found in the Federal Register at:

Child Find for Parentally-Placed Private School Children with Disabilities (§ 300.131) 71 Fed. Reg. 46593 (August 14, 2006): “If a determination is made by the LEA [local educational agency] where the private school is located that a child needs special education and related services, the LEA where the child resides is responsible for making FAPE available to the child. If the parent makes clear his or her intention to keep the child enrolled in the private [school] located in another LEA, the LEA where the child resides need not make FAPE available to the child.” (emphasis added - see Maine School Administrative District #40, 108 LRP 40513 [ME SEA, Oct. 23, 2007] [interpreting and applying the federal guidance and concluding that a district of location was not required to create an IEP for a student given the parent's intention to keep a student in a private boarding school)

While neither the IDEA nor State law preclude a parent from meeting with CSEs from both a district of location and a district of residence to develop an JESP or IEP for their consideration, the IDEA and State law also db not require both public school districts to simultaneously provide services under both schemes. Additionally, parents are generally not advised to seek evaluations from two separate districts to avoid repeated testing in close proximity of time. (See Office of Special Education guidance aamierenaurd at p. 11) In this case, the Parent accepted the public school services recommended by the CSE and provided by the district of location under the student's lIESP. (See Exhibit D-45 - signed by Parent April 19, 2012 and May 29, 2013 “According to federal and State requirements, as the nonpublic school is not located within the geographic boundaries of this district, DOL”) | understand that I must discuss and arrange for special education services with the school district where my child’s nonpublic school is located. | give permission for the Committee on Special Education to. exchange all pertinent educational information including my child's Individualized Education Program (IEP) or Individualized Education Services Program (IESP), with the school district in which the nonpublic school is located.” - see also Exhibit D-36 - noting that “Parent has unilaterally placed the student at: [name of private school].. student will be unilaterally placed by parents at the [name of private school] for the 2013-14 school year...Parent unilaterally placed the student at the [name of private school]. Parent signed the Nonpublic school placement letter so [name of DOL] can support the student’s special education program...Parent is in agreement with the CSE recommendation.”)

In this case, the District has properly raised the issue of its obligation as the district of residence to provide the student with a FAPE for the 2012-2013 and 2013-2014 school years. The District argues that it did not have an obligation to offer the student a FAPE during the 2012-2013 and 2013-2014 school years because the student was parentally placed at the private school in the district_of location and had been evaluated and provided with an IESP by the district of location for that school year, which the Parent accepted. (Exhibit D-46)

The facts of the case are consistent with the Office of Special Education guidance memorandum dated September 2007, which states that the District “need not make FAPE available” to a student who has been parentally placed in a private school in the district of location and who has been evaluated and provided with an IESP by the district_of location. For students who reside in New York, State law requires a school district of location to develop an IESP that is “based on the student's individual needs in the same manner and with the same contents as an [IEP]” and to “assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” (See Educ. Law § 3602-c[b][1]) That is exactly what happened here and the Parent accepted those services. (Supra) Parents are then provided the opportunity to challenge an IESP though the same due process procedures offered to students who are enrolled in a district_of residence. (Id.) however, the Parent in this case did not challenge the DOL'’s IESP and in fact, agreed with and accepted the same. (T-31-3 & D-11)

The following question and answer in the Office of Special Education guidance memorandum addresses the District's defense in this case:

Must the district_of residence develop an IEP for a student who is parentally placed and conduct annual reviews of this IEP? United States Education Department (“USED”) has provided guidance that states: “lf a determination is made through the child find process by the LEA (local educational agency) where the private school is located that a child needs special education and related services and a parent makes clear his or her intent to keep the child enrolled in the private . . . school located in another LEA, the LEA where the child resides need not make FAPE available to the child.” Therefore, if the parents make clear their intention to keep their child enrolled in the non-public . . . school, the district of residence need not develop or annually review an IEP for the student.

(See Office of Special Education guidance memorandum dated September 2007 titled “Chapter 378 of the Laws of 2007 - Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the [IDEA] 2004 and New York State Education Law Section 3602-c”)

Pursuant to the relevant statute and memorandum, the DOR requested that the student first re-enroll at the DOR before taking on the responsibility of creating an IEP for the student's 2012-2013 and 2013-2014 school years. The crust of the Parent's dilemma and parties’ dispute is illustrated by the Parent’s DPC, wherein she states:

His parents objected to removing him from [name of private school] or [DOL] prior to having a meeting of the [DOR] CSE to determine whether it could offer their son an appropriate placement. They pointed out that if . they were to do that and if [DOR] was unable to recommend an appropriate placement for their son that if they chose to re-enroll him at [name of private school] he would be ineligible to receive special education services from [DOL] if the meeting deliberated beyond the June 1° deadline for requesting such services. (See DPC) Later, the DOR acquiesced and created an JEP for the student’s 2012-2013 school year in November of 2012 (after the beginning of the 2012-2013 school year) and in April of 2013 for the 2013-2014 school year. (Supra) In a letter dated August 31, 2012, the Parent stated the following to the DOR: As the school district refused to convene a meeting of the CSE to develop an Individualized Education Plan for our son [student name] we had no choice but to retain him at the [name of private school] for the 2012-2013 academic year. Nevertheless, we are again requesting that the school district convene a meeting of its CSE for the purpose of developing an Individualized Education Plan for him for the 2013-2014 academic year. (See Exhibit D-14) State regulations provide in relevant part that "[t]ne decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer.” (See 8 NYCRR 200.5{jj[5][v]) Based on the record before, I must find that the Parent’s reluctance to remove the student from his private school and the DOL, while understandable, did not shift the burden onto the DOR to provide the student a FAPE. The Parent clearly rejected the IEP gratuitously created by the DOR and in her letter dated August 31, 2012, evidenced a clear intent to place the student at the private school within the DOL. (D-14)

For the 2013-2014 school year, the Parent signed a contract with the private school and made payments for the student's tuition thereat as early as May 8, 2013. (See Exhibit D-39) In a letter dated June 12, 2013, the Parent affirmed that the student would be unilaterally placed at the private school for the 2013-2014 school year. (Exhibit D-32) Thus, the hearing record supports a finding that the Parent expressed her intent to privately place the student for the 2012-2013 and 2013-2014 school years. It is apparent that the Parent first sought to parentally enroll the student under the State law dual enrollment statute to obtain public school services recommended by the CSE from one district - the district of location - without challenging the IESP as inappropriate and, thereafter, the Parent again sought to obtain services again through the CSE of the other public school in this case - the district of residence.

The student's mother testified that she participated in the April 19, 2012 CSE meeting held in the district of location and that an IESP was developed as a result of that meeting. (See Exhibits D-11 & D-45) During an “informal” meeting convened in the district of residence on June 8, 2014, the Parent stated that the student had an IESP from the DOL for the student’s attendance at the private school for the 2012-2013 school year. (T-46-7 & 739) Moreover, the IESP dated April 19, 2012 indicates that the Parent agreed with the IESP and had consented to the student’s placement at the private school evidencing that she understood that the district of location would provide her son's services at the private school. (Supra) The CSE chairperson at the district of location confirmed on April 19, 2012 that the Parent had decided to send the student to the private school at the district of location, before the CSE in the district of residence even convened (T-907 & 913). The hearing record also demonstrates that the Parent rejected the district.of residence IEPs and they advised the CSE of the district_of residence that they had opted to place the student at the private school for the 2012-2013 and 2013-2014 school years. (Supra) Under the facts of this case and consistent with both the Office of Special Education guidance memorandum and federal guidance, the District - as the district of residence - was not required to make a FAPE available to the student and therefore, is not responsible for tuition reimbursement for the 2012-2013 and 2013-2014 school years.

As previously noted, a school district of location recovers from the school district of residence the evaluation costs, CSE administrative costs, and special education services costs incurred. (See 8 NYCRR § 177.2, see also “Guidance _on Reimbursement Claims for the Cost of Providing Special Education Services to Parentally-Placed Nonresident Students Pursuant to Education Law Section 3602-c” located at “www.p12.nysed.gov/specialed/publications/policy/reimbursement608.htm” emphasis added) However, it does not follow the Parent may recoup the cost of the student's tuition at the private school from the DOR, because she has accepted the services of the DOL at the private school via an IESP. While the law holds that the DOR must reimburse the DOL for its “costs”, it does not hold that under the circumstances the DOR must reimburse the Parent for the cost of the student's tuition or “application and other fees” as requested here. It is well settled that parents who reject a school district's IEP and choose to unilaterally place their child at a private school without consent or referral by the local educational agency do so at their own financial risk. (See Burlington, 471 U.S. at 373-74)

Having found that the DOR had no obligation to offer the student a FAPE for the 2012-2013 and 2013-2014 school years, the necessary inquiry is at an end. Under the circumstances, | need not determine whether the DOR IEP’s offer the student a FAPE, whether the private school was an appropriate placement for the student’s 2012-2013 and 2013-2014 school years or whether equitable considerations bar an award on behalf of the Parent.

NOW therefore, it is hereby

ORDERED that the Parent's requests for relief as stated in her DPC dated September 16, 2013 is herewith DENIED.

DATED: — October 6, 2014 MA, DA 2a

New York, New York ge Acar De Leor’- I.H.O.

NOTICE OF RIGHT-TO APPEAL ~

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to the State Review Officer (“SRO”) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the Parent plans to appeal the decision a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its appeal.

An appealing parties’ petition for review shall be personally served upon the opposing party 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])

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.