NY IHO #2015-ih-685: Impartial... | Special Education Law

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In the Matter of the Due Process Hearing Between

BLANK CENTRAL SCHOOL DISTRICT

And The Parents of BLANK VESID Case #88651 Pursuant to the Provisions of Article 89 of the Education Law of the State of New York

JAMES P. WALSH, ESQ.

Impartial Hearing Officer 381 Delaware Avenue Delmar NY 12054

APPEARANCES:

BLANK BLANK

Attorneys for District

DELETE

DELETE DELETE, ESQ., Of Counsel

THE LAW OFFICE OF DELETE

Attorneys for Parents DELETE Street

DELETE

DELETE, ESQ., Of Counsel

DECISION

JURISDICTION

This proceeding was commenced by the Parents of DELETE DELETE, a student residing within the territorial jurisdiction of the BLANK Central School District and a student previously determined to be a student with a disability, (hereinafter referred to as “Student”), by the filing by their attorneys, The DELETE , of a Due Process Complaint Notice, dated January 15, 2015, with the Board of Education of the BLANK Central School District (hereinafter referred to as “District). That Due Process Complaint Notice (Exhibit 1) alleged that District had failed to offer Student a free, appropriate public education (FAPE) for the 2013-2014 school year and sought reimbursement for their unilateral placement of Student at BLANK BLANK for the 2013-2014 school year.

In accordance with the Regulations of the Commissioner of Education of the State of New York, the undersigned was appointed as the Impartial Hearing Officer authorized to preside over the above-captioned proceeding on February 3, 2015. A Pre-Hearing Conference was conducted with the attorneys, after which hearings were conducted on April 10, 2015; May 2, 2015; May 6, 2015; and May 8, 2015. However, another proceeding was commenced by the Parents of DELETE against the BLANK Central School District by the filing by their attorneys, the BLANK BLANK, of another Due Process Complaint Notice, this dated April 29, 2015, Such Due Process Complaint Notice (I.H.O. Exhibit II), alleged that District had failed to offer Student a free, appropriate public education (FAPE) for the 2014-2015 school year and sought reimbursement for their unilateral placement of Student at BLANK BLANK for the 2014-2015 school year.

By Notice of Motion, dated April 30, 2015, Parent’s attorneys sought consolidation of the two cases (I.H.O. Exhibit III) and submitted, in support of such Motion, a Supporting Statement by BLANK BLANK (I.H.O Exhibit IV). District, through its counsel, opposed such consolidation (I.H.O. Exhibit V). By Order of Consolidation, dated May 17, 2015 (I.H.O. Exhibit VI), Parents’ Motion to Consolidate was granted. Although Consolidation was granted, the parties were directed to complete both the District’s then-uncompleted case and the Parents’ case regarding the request for reimbursement for the unilateral placement of Student at BLANK BLANK during the 2013-2014 school year and, thereafter, to address both District’s and Parent’s case regarding Parents’ request for reimbursement for their unilateral placement of Student at BLANK BLANK during the 2014-2015 school year, with the understanding that testimony received or to be received would be utilized for both school years.

THE HEARINGS

Hearings were held in the above referenced proceedings at the Administration Office of the District, located in DELETE, New York, on the following dates: April 10, 2015 May 5, 2015 May 6, 2015 May 8, 2015 June 18, 2015 June 22, 2015 August 17, 2015 August 24, 2015 September 24, 2015

The parties were advised, prior to the commencement of the receipt of testimony, that each would have the right to call witnesses on their behalf, to cross-examine witnesses called by the other party and to offer exhibits into evidence. The parties were further advised that nothing except the sworn testimony of the witnesses appearing in this Proceeding and the contents of the exhibits received into evidence would be considered in my determination of this matter.

In accordance with the provisions of New York State Education Law §4404(1)(c) the burden of persuasion and the burden of proof rested with District The District, in submitting its case-in-chief, presented the testimony of six (6) witnesses. They were:

BLANK BLANK District’s BLANK BLANK

BLANK BLANK BLANK School BLANK BLANK

BLANK BLANK A BLANK BLANK District – Provided Student with BLANK BLANK during the 2012-2013 school year -

BLANK BLANK BLANK A BLANK BLANK by District – acted as a BLANK BLANK - Participated in a pre- C.S.E.

meeting of BLANK BLANK.

Also participated in the BLANK BLANK

BLANK BLANK A BLANK BLANK r employed by

District – was the BLANK BLANK in

Student’s BLANK BLANK during the 2

BLANK BLANK school year.+

In addition to the testimony of the above witnesses, District offered sixty-eight (68) exhibits into evidence, all of which were received and considered.

Parents submitted the testimony of six (6) witnesses. They were:

DELETE Student’s Mother

BLANK BLANK Director of Studies at BLANK BLANK

–Provided description of The School Program

Director of Public Funding at BLANK

BLANK – also Teacher in the School’s

BLANK BLANK – Provided information of

Student’s program and services

DELETE DELETE, Ph.D. A licensed BLANK BLANK of Student at the request of Parents in BLANK BLANK of 2013 and conducted an Updated BLANK

BLANK in July of 2014

BLANK BLANK A Licensed BLANK BLANK –

Employed at BLANK BLANK – Serves

as a BLANK BLANK at BLANK

BLANK Part Time – Provided BLANK

BLANK Services to Student During the

BLANK BLANK school years

DELETE DELETE Student’s Father

In addition to the testimony of the above witnesses, Parents offered thirteen (13) exhibits into evidence, all of which were received and considered.

At the conclusion of proceedings, both attorneys requested the opportunity to submit Post-Hearing briefs. The request was granted and a submission date of October 26, 2015, was established, which date was later extended to November 10, 2015. The date of November 12, 2015 is the Actual Record Close Date.

DISCUSSION

As indicated above, Parents, though their attorneys, initiated this Due Process proceeding to request reimbursement of tuition incurred by their unilateral placement of Student at BLANK BLANK for the 2013-2014 school year and, thereafter, commenced a second Due Process proceeding to request reimbursement of tuition incurred by their unilateral placement of Student at the same educational facility for the 2014-2015 school year. While both proceedings are before me for determination pursuant to my Order of Consolidation, issued on May 17, 2015 (I.H.O. Exhibit VII), I note that the Due Process Complaint made by Parents regarding the 2014-2015 school year was filed after the commencement of proceedings regarding the prior year’s request for reimbursement. As the parties were both directed to conclude their presentations regarding the 2013-2014 school year before beginning their presentations regarding the 2014-2015 school year, so too shall I first consider and decide and issues raised by Parents in their first filing regarding the 2013-2014 school year and, thereafter, consider and decide the issues raised by Parents in their second filing regarding the 2014-2015 school year.

THE STUDENT

Student is presently DELETE years BLANK BLANK months of age, having been born on BLANK. However, at the date of the commencement of the BLANK BLANK school year, Student was BALNK years old. - BLANK BLANK conducted by BLANK on BLANK BLANK (Exhibit 19), Student began her education in the BLANK BLANK Program at the BLANK Center in BLANK New York, at which time Student was evaluated, as Parents perceived that Student was BLANK BLANK. A BLANK BLANK evaluation ruled out a BLANK BLANK. Thereafter Student attended the BLANK BLANK a sectarian private school in BLANK BLANK, for Grades BLANK BLANK through BLANK BLANK In 2004, Student was subject to a BLANK BLANK to rule out a BLANK BLANK. According to the results of that BLANK BLANK Student displayed BLANK BLANK and some BLANK BLANK, but nothing that warranted a BLANK BLANK. BLANK BLANK years later Student was evaluated by a BLANK BLANK at BLANK BLANK due to concerns regarding BLANK BLANK and of BLANK BLANK. It was noted that Student displayed BLANK BLANK abilities, BLANK BLANK Reading BLANK BLANK skills and poor BLANK BLANK. School BLANK BLANK

BLANK reported that Student’s varied, with her BLANK BLANK abilities in the BLANK BLANK but her BLANK BLANK abilities in the BLANK BLANK. Student had a BLANK BLANK of BLANK BLANK. The Report also noted that, in June of 2009, Student was diagnosed with BLANK BLANK and that later that year, Student was also BLANK BLANK with BLANK BLANK and had been diagnosed with BLANK– a BLANK BLANK (Exhibit19). The Report also noted that, based on current BLANK BLANK a BLANK BLANK and BLANK BLANK, Student BLANK BLANK and BLANK BLANK were BLANK BLANK (Exhibit 19).

When Student transitioned from BLANK BLANK BLANK, as that BLANK BLANK program only went to BLANK BLANK, she entered District’s BLANK BLANK Sixth Grade. For the three year period Student was in the Middle School – Grades BLANK BLANK– Student was afforded BLANK BLANK. As Student was concluding her BLANK BLANK program at the BLANK BLANK, Parents, by letter dated BLANK BLANK referred Student to District’s Committee on Special Education (C.S.E.) to determine if she had a BLANK BLANK (Exhibit 24). As a result of such referral, the Committee obtained the BLANK BLANK of School BLANK BLANK BLANK, as well as reports from Student’s BLANK BLANK; a BLANK BLANK; a BLANK BLANK; Student’s BLANK BLANK; Student’s BLANK BLANK; Student’s BLANK BLANK and a number of other documents. The Committee convened on August 12, 2013, found Student eligible to receive special education and related services and proceeded to formulate an Individualized Education Program (I.E.P.) for Student for the upcoming BLANK BLANK school year. That I.E.P. classified Student as being BLANK BLANK and recommended that Student be provided with BLANK BLANK services in a class with a staffing ratio of BLANK BLANK, once daily, forty-five minutes per session. The I.E.P. also provided that Student receive a number of Program Modifications and Accommodations (Exhibit 6).

Student’s Ninth Grade at BLANK High School began in September of BLANK BLANK. Student was placed, as a Regular Education student, in BLANK BLANK However, Student’s attendance was BLANK BLANK during the first BLANK BLANK weeks of the semester, due to what Parent testified was finally determined to be a problem with Student’s BLANK BLANK (T.R.538-539). During the period of such BLANK BLANK, School personnel intervened with Student’s classroom teachers to provide class work to Student while at home. Student returned to class on a regular basis only in BLANK BLANK. Student completed the BLANK BLANK school year without further incident, and, with BLANK BLANK assisting Student in making up much of the work Student had missed, BLANK BLANK all of her BLANK BLANK and well as two

BLANK BLANK.

The 2013-2014 School Year

District conducted a Pre-Annual Review meeting for Student in February of 2013. It was explained by Witness BLANK that a Pre-Annual Review meeting was conducted to discuss what the next-year’s Individualized Education Program (I.E.P.) for a student would look like; what concerns exist; what things will go and what will stay; - all done to condense the amount of time the C.S.E. would have to expend when the Committee actually meets to conduct its Annual Review and prepare a student’s educational plan for the following school year (T.R.423). Present at that meeting were Student; Student’s mother; School BLANK BLANK BLANK; and Teacher BLANK (T.R.425). According to Witness BLANK, no concerns by any of the attendees were expressed regarding the appropriateness of the then-current I.E.P.

The District’s C.S.E. thereafter met on April 15, 2013 to conduct its Annual Review and prepare Student’s I.E.P; for the upcoming school year. The I.E.P. emanating from that meeting continued Student’s classification as BLANK BLANK and continued Student’s program of BLANK BLANK once daily, BLANK BLANK minutes per session in a group of BLANK BLANK. Additionally, Annual Goals were prepared in the areas of BLANK BLANK and BLANK BLANK. Also, a number of program supports, including the provision of BLANK BLANK, that were in Student’s then-current I.E.P. (Exhibit 6) were deleted as no longer necessary (Exhibit 7). It was noted by the Committee that Parents stated they were considering Student’s placement at BLANK BLANK but had not made a final decision.

Thereafter, Parents arranged for Dr. DELETE DELETE to conduct a BLANK BLANK of Student. That BLANK BLANK was conducted on May 4, 2013; May 5, 2013 and May 18, 2013. A copy of Dr. DELETE’ Report (Exhibit 22) was provided to District personnel on July 16, 2013 (T.R.79), after which District circulated the Report to appropriate District personnel and sought to schedule a meeting of the C.S.E. to review the Report (T.R.79). The Committee reconvened on August 30, 2013 and made modifications to the previously-prepared I.E.P. (T.R 82-83). At Parents’ suggestion – after noting that Student had BLANK BLANK from BLANK BLANK during the 2012- 2013 school year, albeit while not as part of her special education program – the C.S.E.

revised Student’s I.E.P. to mandate that Student participate in BLANK BLANK for both BLANK BLANK and BLANK BLANK. The balance of Student’s program would be offered in a general education classroom. Also, in response to an element of Dr. DELETE’ Report that discussed BLANK BLANK that Student had purportedly BLANK BLANK, the C.S.E. added the Related Service of BLANK BLANK BLANK BLANK BLANK BLANK as a BLANK BLANK Annual Goal, to the I.E.P. (Exhibit 8). While the Committee was aware that Dr. DELETE’ #1 Recommendation was that the program which he had found necessary for Student could best be implemented in BLANK BLANK (Exhibit 22 at p, 16), the Committee members found it appropriate to reject such proposed placement recommendation. I note that Witness and Committee Member BLANK had testified that, in November of 2012 – at a time that Student had but recently returned to school on a regular basis from BLANK BLANK – while discussing with Student Student’s plans for her BLANK BLANK – that Student had told Witness BLANK that Student wanted to (T.R.321) and had discussed that want with Witness BLANK on occasions thereafter. Also, according to the testimony of Witness BLANK, Parent had requested information sometime in November of 2012 about a BLANK BLANK required for BLANK BLANK, and thereafter, in December of 2012 or January of 2013, requested District personnel to complete BLANK BLANK for BLANK BLANK (T.R. 418-420). It is, I find, clear that Parents were BLANK BLANK Student’s BLANK BLANK in a BLANK BLANK within days of Student’s BLANK BLANK to her BLANK BLANK at BLANK High School after her extended BLANK BLANK due to BLANK BLANK When members of the Committee were provided with Dr. DELETE’ Report, I find that it was hardly a surprise to Committee members to find that, after pages of reports and findings, the Report would conclude that Student’s proposed program could best be implemented BLANK BLANK.” It is also clear that the Committee placed little weight in that recommendation, as it reaffirmed its recommendation of Student’s continued placement at the BLANK High School with her special education program.

I concur with the Committee that Dr. DELETE’ recommendation for a BLANK BLANK is entitled to but little weight. I note that such recommendation did not appear in at least two prior drafts of his Report (Exhibits 60 and 61). Witness DELETE’ explanation as to why his BLANK BLANK contained such recommendation (T.R. 1080- 1085) is entitled to little – if any – credibility, except for his statement that: “…there was clearly in this instance an interest on the family to have her BLANK BLANK (T.R. 1082). I find also that his lack of credibility on this issue negatively impacted the weight to which the remainder of his Report was entitled.

Within hours after the conclusion of August 30, 2013 C.S.E. Meeting, Parents advised District that “…since the CSE’s recommendations were not in line with her (sic) professional’s recommendations, we will not be placing [Student] into the proposed program for 2013-2014.”, and “We will be placing her into BLANK BLANK at the start of the school year, and we will seek tuition reimbursement for the costs (Exhibit 56).

As the I.E.P. of August 30, 2013 superseded the I.E.P. of April 15, 2013 and is the I.E.P. with which Parents have taken issue, such is the only I.E.P. under review in this proceeding regarding the 2013-2014 school year.

It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s Parents, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parents were appropriate and; (3) equitable considerations support the Parent’s claim. Such prerequisites were established by the United States Supreme Court when considering claims for reimbursement brought by parents who had unilaterally placed their disabled child in a private facility. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 01-052). Further, it was later held by the same Court that the fact that the facility selected by the parents to provide special education services to the child had not been approved as a school for children with disabilities by the state agency would not be dispositive of a parents’ claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). The Court noted that parents who unilaterally decide to place their child do so at their own financial risk.

Burden of Proof

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

DISCUSSION

Essential to any determination of an entitlement to reimbursement is whether the agency responsible for a student’s education provided that student with a free, appropriate public education (FAPE). However, exactly what criterion is employed to determine if – or whether – a free, appropriate public education has been provided? It has often been stated that a FAPE is offered to a student when a board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). The mandate that a Board comply with all procedural requirements set forth in IDEA oftimes resulted in courts and reviewing officers concluding the negative – that is, that if all procedural requirements were not fully complied with, it necessarily had to follow that a free, appropriate public education had not been provided. Courts and reviewing officers, as well as the United States Congress itself, were concerned with such outcome. Courts considering that issue therefore ruled that, while school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at *4 [2d Cir. Jan. 16, 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Such also resulted in the United States Congress amending IDEA, so as to now require that if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the Parent’s' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii];

There have been other judicial, quasi-judicial or regulatory determinations that provide beneficial guidance to my review of the issues presented in this proceeding. The student's recommended program must be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see P. v. Newington Bd. of Educ., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v. BLANK Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.

2007]; Walczak, 142 F.3d at 132). A school district may be required to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see also20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving Parent’s" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).

It is this last requirement – that the IEP must be "reasonably calculated to provide some ‘meaningful' benefit" - that will guide my review in this matter.

When the C.S.E. met on August 30, 2013, it had before it, in addition to numerous other documents and reports, the BLANK BLANK of School BLANK BLANK BLANK (Exhibit 19) and the BLANK BLANK of BLANK BLANK DELETE (Exhibit 22). A number of testing instruments were identical, although the Report of Dr. DELETE had far more testing instruments and greater detail of explanation and comment. However, each noted similar BLANK BLANK as well as BLANK BLANK in Student’s BLANK BLANK to BLANK BLANK and BLANK BLANK and BLANK BLANK. Dr. DELETE’ Report mentioned that Student was BLANK BLANK (Exhibit 22), an element not mentioned by BLANK BLANK BLANK, who reported that Student’s BLANK BLANK, BLANK BLANK and BLANK BLANK were adequate (Exhibit 19). Such finding was also at odds with the reports of Student’s teachers during Student’s BLANK BLANK Grade (T.R.240) and, indeed, with the statement of Parent (Exhibit 16). The Report of Dr. DELETE recommended that Student be BLANK BLANK with BLANK BLANK throughout the BLANK BLANK, taught by BLANK BLANK who implement a BLANK BLANK for students with BLANK BLANK, in a BLANK BLANK designed explicitly for BLANK BLANK with BLANK BLANK and BLANK BLANK and that such be best implemented in BLAN BLANK BLANK BLANK (Exhibit 22).

Witness BLANK, District’s BLANK BLANK at the August 30, 2013 meeting of the Committee and who interpreted for the Committee Dr. DELETE’ Report, opined that no further accommodations other than those placed in the I.E.P. of that date were necessary (T.R.253). I concur. While the Report of Dr. DELETE might pinpoint every area of BLANK BLANK that Student displayed and recommend the best place to implement the best program to meet those deficits, such maximization of Student’s program nor the provision of such program in a setting best suited for the implementation of that program is not the burden placed upon District in the instant proceeding. Further, Student had just completed her BLANK BLANK of BLANK BLANK and, despite a long period of BLANK BLANK from class due to BLANK BLANK, had successfully completed her BLANK BLANK – passing BLANK BLANK and two BLANK BLANK examinations. Clearly, during the 2012-2013 school year, Student had achieved meaningful educational benefit – while having the same deficits that, according to Dr. DELETE, would preclude her being successful in such setting. Placement of Student in an BLANK BLANK during the 2012-2013 school year had not proven too difficult or too large a setting for Student to realize success. It is my finding that the Committee had every reason to conclude that continued placement in such program was reasonably calculated to provide Student with meaningful education benefit and, thus, was an appropriate program for Student for the 2013-2014 school year.

It is my finding and determination that the proposed program recommend by District’s Committee on Special Education for Student for the 2013-2014 school year - with which Parents have taken issue - was reasonably calculated to provide Student with meaningful educational benefit. It is my further finding and determination that no procedural deficits that may have existed in District’s preparation of Student’s I.E.P. for the 2013-2014 school year, rose to the level of denying Student a free, appropriate public education.

It is, then, my finding and determination that District has successfully borne its burden of establishing that it offered to Student a free, appropriate public education for the 2013-2014 school year.

Having made such determination, my inquiry is concluded. There is no need to review the appropriateness of the unilaterally-selected placement made by Parents or whether equitable considerations be explored.

Parents’ request for reimbursement of monies paid for Student’s attendance at BLANK BLANK during the 2013-2014 school year is to be denied and their Due Process Complaint is to be dismissed.

The 2014-2015 School Year

As previously noted, the Parents of DLETE DELETE commenced a Due Process proceeding against the BLANK Central School District by the filing by their attorneys, the BLANK BLANK, of a Due Process Complaint Notice, dated April 29, 2015. Such Due Process Complaint Notice (I.H.O. Exhibit II), alleged that District had failed to offer Student a free, appropriate public education (FAPE) for the 2014-2015 school year and sought reimbursement for their unilateral placement of Student at BLANK BLANK for the 2014-2015 school year.

By Order of Consolidation, dated May 17, 2015 (I.H.O. Exhibit VI), the parties were directed to complete both the District’s and the Parents’ case regarding the request for reimbursement for the unilateral placement of Student at BLANK BLANK during the 2013-2014 school year and, thereafter, to address both District’s and Parent’s case regarding Parents’ request for reimbursement for their unilateral placement of Student at BLANK BLANK during the 2014-2015 school year, with the understanding that testimony received would be utilized for both school years. As I have concluded my review and rendered my Decision regarding Parents’ request for reimbursement for their unilateral placement of Student at BLANK BLANK for the 2013-2014 school year, I now turn to my review of the request for reimbursement for their unilateral placement of Student at BLANK BLANK for the 2014-2015 school year.

THE STUDENT

Student, at the date of the commencement of the 2014-2015 school year, was DELETE months of age. Student had attended BLANK BLANK during the 2013-2014 school year. It is reported that she BLANK BLANK all of her courses during the school year (T.R. 1320-1321; Exhibit L). Although none of Student’s teachers at BLANK BLANK during the 2014-2015 school year testified in this proceeding, there are detailed descriptions of the courses Student took, as well as comments by Student’s teachers regarding Student’s BLANK BLANK and BLANK BLANK in each course.

District’s C.S.E. convened to conduct its Annual Review to plan Student’s educational program for the 2014-2015 school year on June 11, 2014. However, Parents had failed to secure Student’s records at BLANK BLANK during the 2013-2014 school year, necessitating the adjournment of the meeting (Exhibit 65). The Committee reconvened on August 11, 2014. Attending were BLANK BLANK and DELETE, as Chairpersons; School BLANK BLANK BLANK; BLANK BLANK BLANK; BLANK BLANK; BLANK BLANK Director of Schools at BLANK BLANK, who appeared by telephone; Dr. BLANK BLANK, BLANK BLANK at BLANK BLANK, who appeared by telephone; and Parents (Exhibit 64). The Committee reviewed an updated

Evaluation that had been prepared by Dr. DELETE DELETE (Exhibit I). That Evaluation reported that it had been conducted over a two-day period (July 23, 2014 and July 24, 2014), reviewed new testing data, and provided the diagnoses of BLANK BLANK (combined-type); BLANK BLANK; and BLANK BLANK ( ); - the latter two BLANK BLANK apparently not existing – or at least not mentioned - when Dr. DELETE prepared his original Report (Exhibit 22). While Dr. DELETE avoided a repetition of his recommendation for BLANK BLANK at BLANK BLANK, he did reiterate his finding that Student continued to need an BLANK BLANK with BLANK BLANK of BLANK BLANK needs, with a specialized program designed explicitly for BLANK BLANK and BLANK BLANK student, in order to receive not only the BLANK BLANK which will ensure she develop the BLANK BLANK to BLANK BLANK her abilities to the greatest extent, but a total milieu that can support and accommodate the needs of the BLANK BLANK student both during the school day, but after the school hours as well (Exhibit I). Again, I note that neither the provisions of the Individuals with Disabilities Education Act (IDEA), federal or state regulations nor court decisions require programs to maximize a student’s abilities or to develop capacities to the greatest extent. The recommended placement by Dr. DELETE appears to mandate a BLANK BLANK for any BLANK BLANK student – a position that is without support in the IDEA or judicial determinations.

The Committee prepared an I.E.P for Student for the 2014-2015 school year that continued Student’s classification as BLANK BLANK and proposed that Student receive BLANK BLANK daily, BLANK BLANK minutes per BLANK BLANK in a group of BLANK BLANK; placement in BLANK BLANK class for BLANK BLANK and BLANK BLANK, daily; and BLANK BLANK, BLANK BLANK times per BLANK BLANK, BLANK BLANK minutes per session, individually (Exhibit 64). The I.E.P. also mandated BLANK BLANK in the nature of BLANK BLANK and BLANK BLANK Arrangements. It also included BLANK BLANK of BLANK BLANK and BLANK BLANK Setting, as well as Annual Goals for BLANK BLANK, for BLANK BLANK, and for BLANK BLANK.

Parents, by letter dated August 18, 2014 to DELETE, rejected District’s recommended program and advised District that they would continue Student’s enrollment at BLANK BLANK for the 2014-2015 school year and seek reimbursement for such unilateral placement from District (Exhibit F).

I see no need for a detailed review of the evidence or testimony submitted in this proceeding that has not already been reviewed. Witness BLANK BLANK BLANK opined that Student appeared to BLANK BLANK while at BLANK BLANK and that BLANK BLANK had been continued as a courtesy to Parent and Parent’s expressed concerns (T.R.1233). Witness BLANK stated that there was no basis at all for recommending Student receive BLANK BLANK (T.R. 1234) and that the program the Committee had recommended for Student of the 2014-2015 was capable of meeting Student’s needs (T.R.1234). Student’s BLANK BLANK Teacher BLANK, who provided Student with her BLANK BLANK services during the 2012-2013 school year, also participated in the August 6, 2014 C.S.E. meeting that prepared Student’s I.E.P. for the 2014-2015 school year. It was Witness BLANK’s recollection that Student displayed BLANK BLANK of BLANK BLANK while in Ms. BLANK’s program and that BLANK BLANK was recommended only based on Dr. DELETE’ Report. Witness BLANK reviewed the Annual Goals prepared for the I.E.P., as well as the BLANK BLANK and BLANK BLANK and provided her explanation as to the appropriateness of such. It was Witness BLANK’s opinion, which the witness stated was based on her working with Student during the 2012-2013 school year and her review of how Student had done at BLANK BLANK during the 2013-2014 school year, that the program planned for Student for the 2014-2015 school year was appropriate (T.R.1311).

Parents raised in their Due Process Complaint of April 29, 2015 (Exhibit 62) certain procedural defects in the District’s I.E.P. It is my further finding and determination that no procedural deficits that may have existed in District’s preparation of Student’s I.E.P. for the 2014-2015 school year, rose to the level of denying Student a free, appropriate public education.

The burden placed upon District by both Federal and State enactments require that it provide Student with a free, appropriate public education, i.e., one that is reasonably calculated to provide student with a program that will afford Student to make meaningful educational progress and benefit. I have determined that the program afforded to Student during the 2012-2013 school year was one which fulfilled that requirement. There has been nothing presented in this proceeding that would indicate that if such program were to be again afforded to Student, that Student would not receive meaningful educational benefit therefrom. Such is the only burden imposed upon District. It is my finding and determination that District has successfully borne that burden.

Parents’ request for reimbursement of monies paid for Student’s attendance at BLANK BLANK during the 2014-2015 school year is to be denied and their Due Process Complaint is to be dismissed.

DETERMINATION

Based upon the above review, it is HEREBY ORDERED that Parents’ Due Process Complaint seeking reimbursement for their unilateral placement of Student at BLANK BLANK for the 2013-2014 school year be, and the same hereby is, DENIED and the Parents’ Due Process Complaint DISMISSED; and it is

FURTHER ORDERED that Parents’ Due Process Complaint seeking reimbursement for their unilateral placement of Student at BLANK BLANK for the 2014-2015 school year be, and the same hereby is, DENIED and the Parents’ Due Process Complaint is

DISMISSED.

Dated: November 24, 2015

Delmar, New York

JAMES P. WALSH

Impartial Hearing Officer

The above constitutes my decision that in accordance with the provisions of Article 89 of the New York State Education Law.

The BLANK Central School District and the Parents of BLANK BLANK have the right to obtain a review of this Decision by the State Review Officer of the State Education Department of the State of New York, in accordance with the provisions of Part 200.5(k) of the Regulation of the Commissioner of Education of the State of New York.

DOCUMENTATION ENTERED INTO RECORD

No.: # of Pages Description Offered by

A 15 Statement by Denise Bourque, sworn to on 4-1-14, Parents of tuition paid by Parents for the 2013-2014 school year (1); Semester One Report Card for Student for the 2013-2014 school year (6); Winterim Report Card for Student for the 2013-2014 school year (2); Third

Marking Period, Semester Two Report Card and

Final Grades for the 2013-2014 school year (6). B 6 Statement by Denise Bourque, sworn to on 2-17-15, Parents of tuition paid by Parents for the 2014-2015 school year (1); BLANK BLANK between

Parents and BLANK BLANK for the 2014-2015

school year, dated 4-9-14 by Parents and 5-23-14 by

BLANK BLANK (5).

C 18 Introductory Letter by DELETE to Parents, undated Parents

(1); Student Information Summary (3); Student’s I.E.P.

for the 2013-2014 school year (14). D 4 Letter from DELETE to Parents, dated 5-9-14 Parents E Not Received F 2 Letter from Parents to DELETE, dated 8-18-14 Parents G Not Received H 1 Letter by Student, undated – Entitled: Why The Parents

BLANK BLANK is Better for Me I 8 Updated BLANK BLANK of Student by Parents

DELETE DELETE, Ph.D., dated 7-24-14

J 3 Portion of Statement of Account BLANK BLANK by

BLANK Parents

School Highlighted Payment for Tuition Refund Plan

(1); Publication: The Tuition Refund Plan (2) K 7 BLANK BLANK Re-evaluation of Student by Parents

School Psychologist D. BLANK, dated 6-23-15 L 11 Student’s Transcript from BLANK BLANK for the Parents

2013-2014 and 2014-2015 school years (1); Student’s

Grade List (Report Card) for a portion of the 2014-2015 school year (7); BLANK Marking Period Schedule for the 2014-2015 school year (3)

M 31 Publication: About BLANK Parents

1 9 Parents’ Due Process Complaint Notice, dated 1-30-15 District 2 6 District’s Response to Complaint, dated 3-13-15 District 3 2 Student’s Sec. 504 Plan for the 2009-2010 school year, District dated 10-16-09 4 2 Student’s BLANK BLANK for the 2010-2011 school year, District dated 6-18-10 5 3 Student’s BLANK BLANK Plan for the 2011-2012 school year, Dirict dated 6-10-11 6 13 Student’s I.E.P. as developed by District’s C.S.E. on District 8-12-12 7 14 Student’s I.E.P. as developed by District’s C.S.E. on District 4-15-13 8 17 Student’s I.E.P. as developed by District’s C.S.E. on District 8-30-13 9 1 Completed Health Appraisal Form, dated 6-18-09 District

10 1 Physical Education Questionnaire, Completed by District

DELETE, M.D., dated 10-8-09 11 4 Medical Report by BLANK, M.D., dated 10-16-09 District 12 1 Prescription by BLANKM.D., dated 4-24-12 District 13 1 Classroom Observation Report by L. BLANK, dated 6-13-12District 14 2 Completed C.S.E./Physical Education Information District Form, dated 5-24-12 15 1 Student’s Cumulative Health Record District 16 3 Completed Social/Health Information Form, dated District 6-21-12 17 4 Parent Report of WIAT-III test, dated 7-10-12 District 18 4 Clinician Report of WIAT-III test, dated 7-10-12 District 19 11 Report of BLANK Evaluation of Student by District

L. BLANK dated 7-20-12 20 3 Cover letter by Parent (1); Result of BLANK Testing of District

Student on 10-29-12 (1); Result of BLANK Testing of Student on 1-24-12 (1) 21 2 Completed Questionnaire by Student’s Teacher BLANK, District dated 5-15-13 22 19 Report by DELETE DELETE, Ph.D. of BLANK

Evaluation of Student, dated 5-18-13 23 2 Completed Questionnaire by Student’s Teacher Fitch, District dated 5-22-13 24 1 Referral of Student to C.S.E. by Parents, dated 6-7-12 District 25 2 C.S.E. Consent for Evaluation Form for Student, District Unsigned 26 1 Completed C.S.E. Referral Form, dated 6-11-12 and District

6-12-12, by School BLNAK and Building BLANK

27 4 Prior Written Notice and Proposed Referral for Evaluation, District dated 6-12-15 (2): Consent for Initial Evaluation, unsigned 28 1 Consent for Initial Evaluation, dated 6-13-12 and signed District by Parent 29 2 Notice to Parents of C.S.E. meeting, dated 7-12-12 District 30 1 Waiver of Additional Parent Member Attendance, signed District by Parents, dated 8-2-12 31 3 Prior Written Notice and Proposed Referral for Evaluation, District dated 8-2-12 (2): Consent for Initial Evaluation, unsigned 32 2 Notice to Parents of C.S.E. meeting, dated 3-14-13 District 33 3 Prior Written Notice to Parents, dated 4-15-13 District 34 2 Notice to Parents of C.S.E. meeting, dated 8-19-13 District 35 2 Notice to Parents of C.S.E. meeting, dated 8-19-13 District 36 2 Notice to Parents of C.S.E. meeting, dated 8-27-13 District 37 3 Prior Written Notice to Parents, dated 8-30-13 District 38 3 Letter from Parents to K. BLANK, dated 9-10-13 (2); District

Student Records Request Form (1) 39 3 Letter from Parents to DELETE, dated 9-14-13 (2); District

Photocopy of envelope (1) 40 1 Letter from DELETE to Parents, dated 9-24-13 District 41 11 Parents’ Due Process Complaint Notice, dated 2-25-14 District 42 11 Parents’ Corrected Due Process Complaint Notice, dated District 2-25-14 43 3 Letter of Appointment from President of District’s Board of District

Education to I.H.O. J. Walsh, dated 2-28-14 (1) ; Statement of

Availability Form (1); Billing Protocol for Independent (sic) Hearing Officers (1) 44 1 Letter to Parents from DELETE and DELETE, dated 3-3-14 District

45 3 Letter from I.H.O. J. Walsh to District Clerk DELETE, dated District 3-3-14

46 6 District’s Response to Complaint, dated 4-23-14 District 47 1 Withdrawal by Parents’ attorney of Parents’ Due Process District

Complaint, dated 5-8-14 48 14 Copies of Student’s Report Cards for Grades One through Nine District

49 2 Parent Report of Results of New York State Testing Program - District ELA 50 4 Student’s Official Transcript from BLANK High School District 51 1 Student’s Attendance Record at BLANK High School during District

2012-2013 school year 52 19 Student’s Sanford Achievement Test Records while at District

BLANK BLANK – Grades 1 through 5 53 4 BLANK Enrollment Agreement between Parents and The District

BLANK BLANK, dated 4-3-13 by Parents and 4-12-14 by The

BLANK BLANK

54 1 Affidavit by BLANK for The BLANK BLANK, sworn to on District

4-1-14 of BLANK made by Parents 55 1 Email from K. BLANK to Parents, dated 8-30-14 District 56 1 Email from Parent to DELETE and DELETE, dated 8-30-14 District 57 4 Student’s Attendance Records for the 2014-2015 school year District 58 3 Application for Admission of Student to BLANK BLANK - District

Signed by Parent but undated 59 2 Confidential BALANK BLANKof Student by BLANK District 60 23 BLANK Evaluation of Student by DELETE DELETE, Ph.D., District undated 61 17 BLANK Evaluation of Student by DELETE DELETE, Ph.D., District with evaluation dates of 5/4; 5/5 and 5/18/13 and various script entries 62 8 2014-2015 Due Process Complaint by Parents, dated 4-29-15 District 63 3 District’s Response to Complaint, dated 7-30-15 District 64 18 Student’s I.E.P. as developed by District’s C.S.E. on 8-6-14 District 65 2 Prior Written Notice to Parents, dated 6-11-14 ` District 66 3 Prior Written Notice to Parents, dated 8-6-14 District 67 2 BLANK BLANK Assessment of Student, dated 2-28 District 68 4 Email from Attorney BLANK to Attorney BLANK, dated District

6-25-15 (1); Student’s Attendance History at BLANK BLANK in 2013-2014 school year I 3 Listing of District Exhibits #1 – 52 IHO II 8 Parents’ Due Process Complaint, dated 4-29-15 IHO III 1 Parents’ Notice of Motion for Consolidation, dated IHO 4-30-15 IV 5 Parents’ Motion to Consolidate, dated 4-30-15 IHO V 4 District’s Challenge to Parents’ Motion to IHO

Consolidate, dated 5-5-15 VI 5 Order of Consolidation, dated 5-17-15 IHO VII 27 Parents’ Closing Brief IHO VIII 30 District’s Memorandum IHO

Impartial Hearing Decision

Burden of Proof