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Special Education Law
DECISIONDistrict PrevailedIHO Case No. 502915

Impartial Hearing Decision

December 4, 2017·(via telephone)

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

Case #: 502915

Student’s Name:

Date of Birth:

Hearing Requested by:

Date of Hearing:

Actual Record Close Date:

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED AT THE HEARING

hearing date:

(via telephone) — Student

(via telephone) — District

hearing date: — District

hearing date: — District

hearing date: — District

hearing date: — District

hearing date: — District

hearing date: — District

INTRODUCTION

On I was appointed as the Impartial Hearing Officer (“IHO”) by the (“the District”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, §1415 (f) (1) and Section 504 of the Rehabilitation Act of 1973 as amended concerning a dispute involving the special education program for (“” or “the student”) for the school years1.

BACKGROUND

is a -year-old student who, at the time of the hearing, had been placed at and (“”) by and was in the grade for the school year. The student’s classification for the school year was. The classification was changed to for the school year and was continued for the school year. The asserts that the District has failed to provide with a free and appropriate public education (“FAPE”) for the school years at issue. The further asserts that the District denied the student a reasonable accommodation by not allowing the student to attend and at. The District contends that was provided with FAPE for the school years at issue.

FINDINGS OF FACT

1

The due process complaint (“dpc”) originally sought to encompass the and school years, as well, alleging that the was entitled to go beyond the statute of limitations based on . The District made a motion to dismiss which was granted. The District also made a motion to dismiss the dpc without prejudice based on a sufficiency challenge, that motion was denied. (Ex. IV, V, VI, VII) was in the grade and at the for the school year.[2] An IEP meeting was held on to develop an IEP for for the grade. classification was. The meeting was attended by

(chairperson/psychologist);; (special education teacher); (general education teacher); and

(Speech Language Pathologist). testified that at the meeting goals were developed and reviewed by the committee which included the. An (“”) class was recommended, as well as a ratio and in a small group (). An class has both a and a and the students are both students and students. An is less restrictive then a 3 setting which would have a ratio of and the curriculum can be modified and delivered based on the student’s individual needs. was recommended for a class on IEP. While the ratio of the class is it differs from a setting for subjects in that it is more of a which supports the classes. The class is a time for , and and is directly related to the class. had done a Psychological Evaluation of in the grade and the testing and report were considered during the creation of the IEP. The evaluation was done in the grade because it was reevaluation year. The testing used was the. testified that the test is typically given to students because students through school have received a full battery of tests. If the student’s performance is consistent over time, there is no need to do a full battery and that the is an efficient means of checking the student’s ability. No discrepancies were found in performance.

They also considered a which was prepared by . It was noted in the report that attended the

(“”) regularly, was an active participant and that has made progress in goals. (t. 150-54, 156, 164-67, 172-73, Ex. 4, 21, 24)

An IEP meeting was held on to develop an IEP for for the grade. The meeting was attended by

(chairperson/psychologist);; (special education teacher); (general education teacher); and

3

and class are used interchangeably. (Speech Language Pathologist). The classification was from to . The committee reasoned that was a better description of that needs were not purely. The in did not lead to a of but rather more the student in that it did not just reference but pointed also to as well. The expressed hesitation with the but ultimately to it. The committee continued the of the . The participated in the development of the at the meeting. testified that showed in as a whole but that the was the most compared to years. The expressed an interest in but agreed to after spoke about the had and the need to . was not recommended for the and testified that nothing came to attention indicating the need for . was , and had a . While did have periodic over did not let it impact effort. expressed some over , but stated that is typical of any student. testified that the teachers in were great with and seemed and . always struggled with , but the teachers were very , and felt that they were following IEP. testified that was happy in. (t. 143-48, 155, 161-63, 331-32, 406, Ex. 3, 19)

attended (“”) for the school year and was in the . was in an and receiving in a pursuant to

IEP. classes at have approximately students with a with IEP’s. There are teachers in the class, one is a teacher in the subject area and the other a teacher. The teachers work together to meet the students’ needs with the aim of at the end of the year. The class differs from the available at , in that the has students with one teacher and all the students have . The pace of the is slower so as to better accommodate the needs of the students, but the curriculum remains the same. The at are not programs designed to assist students with . They all work towards the . teacher at was . The teacher is responsible for preparing the paperwork for the student’s annual review and is the contact with the . The teacher is also tasked with making sure that the IEP is being complied with and communicates with the other teachers concerning the students’ needs and progress. was in an for all subjects, and also had some support classes for , and .

(t. 194-96, 229- 33, Ex. 3) testified that spoke to on the phone for the first time in r. the assistant principal had asked to call after spoke to the . was concerned about a phone call from teacher, . The teacher had made a phone call to the prior to being named as teacher.

advised that had received a test grade of and that could not see passing the . was very concerned about abilities. The teacher reported that was struggling in the class and was concerned about placement in an and suggested that should be in a class. . told that would discuss the with and get back to. In phone conversation with , days later, was upset about the suggestion of a class and did not want in a placement. The advised that had been in a placement in from to grade and did not want in that type of placement again. They also discussed schedule and that it conformed to IEP. They discussed class and a decision was made that no longer needed that class. During the phone call, told that was making good , has and is in the school and that they would see how the year goes and put additional supports in place that were available. If was not frustrated by demands they could support in the classroom and revisit it as necessary. also advised that the were declining the and that the would end. (t. 234-37, 330) testified that during the phone call. had told that if was calling to talk about a they might has well go right to the CSE. Soon after the phone call a meeting was held. The meeting is an interim step before the CSE to see how to best support . The meeting was attended by teachers and . The teachers came with grades, others had work samples and offered information on their web site, assignments and tests. The information presented was similar to what would be provided at an and was to ensure that the have the needed resources.

The difference between an and a was discussed, though there would be no decision made.

was not in favor of a . teaches a class in and invited to visit the class to see what it was like. did not disagree or say wouldn’t set up a visit, but never came to the class. As a result of the phone call and the meeting additional supports were implemented. class was dropped as already had the for . was moved to make room for a .[4] was scheduled for every other day for a full period (40 minutes) and the every other day for a full period. They also discussed school help. testified that both and offered school help from to . stated that was one of the students in the , so often saw class. The help is on the students so if did not attend would get a . It was recollection that attended the classes. also received support for class. also offered extra help during and would go for help at that time but mostly saw or times a school, and towards the would come at the of the day. (t. 238-46, 336) The testified that did not believe that anything was accomplished at the meeting. spoke to the and the and told them was concerned about putting in a class. stated that years earlier had been in a and they took out because was of some of the in the class. Some of those were still in the class. The testified that even though the school said there would and school, told that the teachers were either not there or came late and nothing was accomplished. (t. 190, 336-39)

On or about submitted a letter to the school advising that would no longer be attending which was scheduled for times per in a . The IEP was amended to remove at the request of the despite it being noted on the IEP that “.” testified that the only reason that they the was because it was scheduled during period and was frustrated because was when got there, or would have issues with the because was . testified that was complaining about , that did not like it. The complaining about went on for over a year and the finally acquiesced and took out of .[5] (t. 202, 346, 393-95,490, Ex. 2, 5)

, at was contacted by , in , about an incident that had with . told that had spoken to over on a test or a quiz in front of the class. Further, that had told , in front of the class, that the class wasn’t the proper class for . started to cry, and told that was only stressed out because did not place in a class as had asked them to. spoke to and stated that never spoke about the type of class that was in in front of other students. testified that and called and was still upset.

denied that had ever mentioned the type of class in front of other students but did state that perhaps was not the right class and that needed more support. testified that clearly told them both that they were not to speak to about class in any form and that the did not believe that needed class. assured the that would not speak to about class. (t. 94-100, 102, 356-60)

struggled academically for the whole of the despite the extra help was receiving. teachers described as a and student who wanted to . worked hard to prepare for exams but struggled taking them. teachers noted in teacher progress reports that needs and uses her . testified that the testing listed on IEP were provided and that never received any complaints from the regarding testing not being provided. The progress reports are requested by the teacher in preparation for the annual CSE meeting to be used in preparation for IEP. testified on the progress report that completed for, noted that a had been recommended earlier in the year, but that and want to remain in class. stated that generally a student with would be recommended for a more placement and felt it was important to note the opposition to a class. testified that four times a year the teacher will look at the IEP goals for the year and make comments on how the student is progressing towards the goals. communicates with the other teachers and prepares the reports. The reports are then mailed to the and stated that mails them . testified that overall made progress in IEP goals. administered an educational evaluation, the WIAT-III on . It was a required reevaluation which is done every years. The test was administered, and the results were provided to the CSE for annual review, at the end of school year. The results were with prior testing. testified that at the beginning of the school year thought that class was not a problem for but as the year progressed recognized that it was not an appropriate placement. In an interview for a dated stated that was struggling academically and is stressed out. is not happy with teachers. puts effort in to completing homework and participates in class, but are very low. The spends a lot of money on and outside school. The notes that was recommended to go in to class for , but stated that is not an option. student transcript and student report card for the show that she was academically in her core subjects. (t. 247- 68, 271, 388-90, Ex. 6, 8, 9, 11, 10, 13)

A CSE meeting was held on to develop an IEP for the for , school year. The meeting was attended by (chairperson/); (special education teacher); (general education teacher); and testified that as the chairperson, facilitates the meeting by determining who will be reviewing reports, speaking about the students’ progress and classes and speak to the and have them report on concerns in terms of school. was present at the meeting, so they spoke with as well. They went over the goals and placement recommendations for the next school year. The goals were developed and discussed at the meeting and reviewed with . had the opportunity to contribute at the meeting. did not recall any disagreement regarding the goals. The classification of was continued, and indicated their agreement with the accommodations, placement and the goals.

raised concerns about the student’s and that was or in danger of classes. The student put a lot of effort in to that was not reflected in . believed that because put so much effort in to homework, classwork and assignments that should have . explained that the grades are based on assessments in the class and tests and quizzes and that was not successful with the which brought down . stated that there was no request by for an out of district placement. There was discussion about, and was aware that it has been in the past. let know it is still a from the school if wants to consider it and that it would be an easy amendment. acknowledged the offer but was not in agreement with. had told at some point that had previously had and was not comfortable with it and that did not think it was the appropriate. never contacted the school to change the recommendation to placement. testified that if had continued to in the , they would hold a CSE meeting and recommend class over the objections of . explained that if a student ls two years in a row it would impact. testified that was not recommended to receive. had not received any reports from the or teachers that would benefit from . never said that there was any type of that wanted anyone to speak to about. did not request , nor did they mention to that they were considering outside . testified that typical of in a student would be a change , to go to school, in school. testified that had not heard of having a history of and never heard of being anything but and . administered a Psychological Re-Evaluation of and the results of the testing were with previous testing. The version was used rather than the test because at that time felt that they had a good indication of where academic were so there was no reason to do testing. The Prior Written Notice for the IEP meeting noted that a was considered but by the . s testified that was never discussed at the IEP meeting. testified that they started sending to at some point in the because was not doing , and was miserable. was working very hard but still not doing well and was very about it. testified that they did ask the school for , and believes that spoke to about it. (t. 184- 93, 196-202,220-21, 342-43, 348-51, 487-88, 491-493, Ex. 1, 5, 12)

testified that found out that had her classes at the end of. spoke to and other teachers on a conference call. did not believe that would be going to , but told to send the anyway.

testified that a of is an in another told her that should request an CSE meeting. It was also at this time that started looking at. stated that tried to schedule a CSE meeting over the but was unsuccessful. started attending over the and took and . (t. 361- 63,372-75)

was scheduled to start the at for the school year. testified that did not any classes during the school year at . The school had received no that would not be prior to the beginning of the school year in. When did not for the school made efforts to out where was. Phone calls were made by , , () and the school . called the phone and cell phones, left messages but received no response. testified that no one from the school received to their phone calls. testified that called the to see if everything was when it was discovered that was school. called the and a picked up who sounded like . stated that the denied that was and that was not . . identified and asked that number be taken and given to . The responded “” and hung up the phone. No return phone call was received from . testified that approximately weeks in to the school year spoke to the about the student attending. At the suggestion they tried to call the at . They asked for, were put on hold and when the picked up the identified at which time the stated that they had the wrong and would transfer them, at which point the connection was lost. As far as knew there was no communication from the in September nor was aware of any attendance by att. Though was advised by another teacher who knew that had been at a around the end of . advised of being at. testified that it came to attention that was participating in and that was attending the class. testified that one of the received a fax from advising that was enrolled there. The letter from was dated . stated that there was no indication from , during the CSE or any other time prior to the school year that were planning on enrolling the student at .

Prior to the receipt of the letter from there had been discussion about making a visit. testified thate did not receive any information, nor was aware of anyone else at the school receiving any information from the of intent to enroll in in , or of an intent to seek tuition reimbursement for the enrollment . , the for at, testified that once the letter was received from the process is that the letter goes to the to make sure that the and office is aware of the change and they will often call or the school to verify the letter and the student’s attendance at the school. The next step would be a request to disenroll the student from the school district. Prior to the beginning of the school year testified that he was not aware of the District receiving any notice of intent to enroll at or to withdraw from or to request tuition reimbursement. stated that the District has not received anything from regarding attendance or progress at the school for the school year. (t.

62- 65, 90-94, 103-05, 107, 180-84, Ex. 25) do not dispute that did not notify the District prior to the start of the school year that they were unilaterally enrolling in for the school year.

stated that during the there was no one available to tell. concedes that called about weeks in to the school year, but did not return call. stated that did not call back until was off the school grounds sometime in . states that was going to and at . had started in and continued to participate after the school year started and was at the of the day and she went to that class.

stated that at that time was taking and at . had hoped to be given an by the District which would allow them to send to for a couple of classes and then in the middle of the day to go to for , possibly and stay with a . testified that did not request the possibly of from the District prior to having participate in and . testified that once hired an attorney in stopped talking to anyone from the District. In spoke to who advised that the District was not going to allow to attend and . then started to take all core classes at . misses the aspect of being at, having friends, being on and was concerned about not being able to go to. testified that was concerned about losing the of school and did not want to change anything. told that they would preserve the and that could get a proper curriculum and agreed to it. testified that prior to were not seeking tuition reimbursement for they were seeking the of allowing to attend and . When the was decided to seek tuition reimbursement. (t. 365-68, 375-78, 484-87, 493-98, 500-01, Ex. 26, 27)

started attending in the of . is an private school recognized by the New York State Education Department (“NYSED”). is not a state approved school. It is a school servicing grades for students who generally struggle and in environments. The school has the capacity to enroll students but generally has between and students. All students are taught in classroom e teacher and student). , of School, testified that being a program it gives them the time to focus on the of the student giving the to work at the student’s and while adhering to the NYSED requirements. There are levels of curriculum: , prep and .[6] The level is more rigorous with more material covered in a semester with a more in-depth look at the subject matter. The level is where most students fall, and the student must prove mastery of the subject matter which is

70 percent and is similar to what you would find at a public high school. In the all the material and state standards are met but at the student’s pace and it is not as in-depth as the other two levels. Upon successful completion of , the students receive a and some do . testified that while not a state-approved school the of the program allows them to work with students with IEP’s and 504 plans and identify the learning style of each student and the way they learn best.

was unsure how many students at have IEP’s but guessed it was about half. The school does not provide other , but some teachers have a background. The , , is the and will consult with teachers if necessary. The students have the opportunity for at the , lunch, group activities and field trips. the director of is a certified general and special education teacher. testified that the is a place where students go to do their. No is sent home with the student. Each academic class is followed with a in the. helps the students with their , answers questions and lets the teacher know how the student is doing. does not teach the students the lesson and describes the as being like a. The is divided in to , a side and a side. The student decides which side that they would want to do their homework on. On the side students can talk to their friends, play games. On the side there is no noise. is familiar with from the . When started at was in the but was struggling so much that was moved to the . The move from the to the was done with the consent of after a meeting. did much better once was moved to the because it is not as intense, and has a hard time and was . is described as getting very easily in both and the .

gets when does not know the answer and will get but will not know that is angry. is not at .

testified that refuses to be and that has tried to bring to meetings and clubs. prefers to work alone in the and since being moved to the is able to work more independently though homework is not always at because struggles to . When first started at went to the side but now prefers to be in the by if it is available. The is , so can block everything out. During would like to stay in the but is not allowed to eat in there, so will go in to the and eat lunch there. testified that does not like to eat lunch in a setting. is teacher and teacher. As her teacher acts as mentor, and if was struggling or had issues would be the person that would check with the other teachers and administrators to make sure that they were aware and what needed to be addressed. There have been sometimes where will have to take , sometimes more, when is over an and the time is taken to address those so that could and move forward academically. would generally surround things going on , typical or issues. would hyper focus on those and would need to express before being able to and focus on the curriculum.

Initially it was a challenge to get back on track, but it has become easier as they developed a relationship. described as a very student, who has profound with and of what has read.

testified that has all classes and has done but that and is an issue across the board. However, with the teaching they have been able to give to get successfully through the curriculum with better than passing grades. (t. 363, 452-56, 461-68, 476-80, 532-42, 540, 552-55, 560-65, Ex. 25, E)

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. §1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. §1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. §1414 (d); 34 C.F.R. 300.320). There is a three prong test that is the legal standard applicable in a request for reimbursement for educational services: (1) were the services offered by the Department of Education inadequate or inappropriate; (2) if so, were the services selected by the parent appropriate; and (3) if so, are there equitable considerations to support the parents. School Committee of Burlington v.

Department of Education of Massachusetts, 471 U.S. 359 (1985). Pursuant to N.Y. Education Law § 4404 (1) (c) the burden to proceed on prong 1 is that of the School District.

and School Years

I find that based on the testimony and evidence adduced at the hearing the District provided with FAPE for the and school year and that the IEP’s developed and programs recommended were reasonably calculated to confer an educational benefit to .

FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). In Walczak v.

Florida Union Free Sch. Dist, 142 F.3d 119 (2d Cir. 1998) the Court observed that the “[Individuals with Disabilities Education Act] does not itself articulate any specific level of educational benefit that must be provided through an IEP. The Supreme Court has… specifically rejected the contention that the “ ‘appropriate’ education” mandated by IDEA requires states to ‘maximize the potential of handicapped children’ Board of Educ. V. Rowley, 458 U.S. at 197 n.21, 189, 102 S.Ct. at 3046 n.21, 3042. the purpose of the Act was ‘more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.’ Id. At 192, 102 S.Ct at 3043; accord Lunceford v. District of Columbia Bd. Of Educ., 745 F.2d 1577, 1583 (D.C.Cir 1984) (Ruth Bader Ginsburg, J.) (because public ‘resources are not infinite,’ federal law ‘does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled]

child’)…An appropriate public education under IDEA is one that is likely to produce progress, not regression.’ Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 248 (5th

Cir.1997) (internal citation omitted), cert. denied, ---U.S.---, 188 S.Ct. 690, 139 L.Ed.2d 636

(1998). Id., at 130, 132. An IEP must be reasonably calculated to produce educational benefit, not necessarily to maximize potential. See Rowley, 458 U.S. at 189 (1982). A publicschool district is not required to provide essentially “everything that might by thought desirable by loving parents.” See Walczak, 142 F.3d at 132 FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”. (Rowley, 458 U.S. at 203) In Endrew F. v. Douglas Sch Dist., 580 U.S. __ (2017)

the Court found that an IEP should be “reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”

I find the testimony of the Districts witnesses credible. credibly testified that for the school year an IEP meeting was held, attended and participated in the meeting. The goals were developed and reviewed by the committee which included the Parents. was recommended. A psychiatric evaluation (WASI-II) of administered in the was considered during the development of the IEP.

The abbreviated test is typically administered to students because they receive a full battery of tests in and if the students’ performance is consistent over time there is no need to do a full battery. The WASI-II is an efficient means of checking the student’s ability and there were no discrepancies found in performance. asserted in the dpc that the , and was created based on either or data and that the student was not provided with. There is nothing in the record to support a finding that the classification of was incorrect or that the program or placement was created was based on or that the student was not provided with. did not offer any testimony or evidence to refute the testimony of or the position of the District that the student was provided with FAPE for the school year.

credibly testified that for the school year that an IEP meeting was held and the attended and participated in the meeting. The student’s classification was. The committee reasoned that was a better description of in that it was not just but also pointed to abilities. testified that the change in did not lead to a change of services but rather more accurately described the student. While expressed hesitation over the change in they ultimately agreed to it. The committee continued the recommendation of program. The goals were developed at the meeting and participated in the development of the goals. testified that had showed academic progress in but that as a whole the was quite to prior years. expressed an interest in but were persuaded to continue it when spoke about level of need for such services. testified that was not recommended for as nothing had come to attention indicating a need for . described as and that had a group of .

While displayed some over it was typical of any student. asserted in the dpc that the was changed with no new testing; that the IEP states that the student is to receive with the change in ; that the goals are of being measured; that there was no progress towards goals; and that the student was not provided with listed on IEP. There is nothing in the record to support a finding that new testing was to change the student’s or that the IEP states that the student was to receive based on the. There is nothing in the record to support a finding that the goals listed on the IEP especially since there was no testimony regarding the goals other than that they were developed with input at the IEP meeting. There is nothing in the record to support a finding that made no progress towards goals. There is nothing in the record to support a finding that was not being provided with as set forth on her IEP. did not offer any testimony or evidence to refute the testimony of or the position of the District that the student was provided with FAPE for the school year. In fact, testified that the teachers in were great with and seemed and and that while struggled with the teachers were always very accommodating. felt that they were following IEP. testified that was in school.

I find that the District crafted procedurally and substantively sound IEP’s recommending an appropriate program for the and school years thereby providing with FAPE.

School Year

I find that based on the testimony and evidence adduced at the hearing that the District failed to provide with FAPE for the school year in that the recommended program failed to provide with an appropriate education.

The State Review Office (“SRO) considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No. 08-037. The

SRO noted that not all procedural flaws automatically require a finding of denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies:

(a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of FAPE for the student; or caused a deprivation of education benefits.” (Matrejek v. Brewster Cent. School Dist., 471 F.

Supp 2d 415, 419 (S.D.N.Y. 2007). FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”.

(Rowley, 458 U.S. at 203) In Endrew F. v. Douglas Sch Dist., 580 U.S. __ (2017) the Court found that an IEP should be “reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” The Court in R.E. v. New York City Dep’t of Educ., 694 F.3d 167, at

191 (2d Cir. N.Y. 2012) emphasized that “even minor violations may cumulatively result in a denial of FAPE”. See also Application of a Student With A Disability., Appeal No. 15-001 where the aggregate effect of procedural violations resulted in a denial of FAPE.

I find the testimony of the District’s witnesses credible. attended for e and by all accounts was a and student. was in class and received and through classes and an additional . In addition, sought out from teachers. was also provided with and . attended school regularly and participated. The testimony elicited revealed that quite early in the teacher recognized that an lass was not an appropriate placement for and called to express concern and recommended class.

was opposed to placing in class and called the who then requested that teacher, call. called and was advised that if called to talk about class they might as well go right to the CSE. At the time believed that was making a good adjustment in and with support would succeed. It was at this time that also discontinued for . While testified that were discontinuing because it was scheduled during lunch period testified that had been asking to drop for a year and finally acquiesced. A team meeting was held, which is a step before going to the CSE, and was attended by the teachers and . Additional supports were put in to effect such as the addition of a and extra help as a result of the phone call and the team meeting. The record is clear that the was adamantly opposed to being in class and after an incident with told both not to speak to about class. continued to recommend to that would be more appropriately placed in class. testified that made overall progress on IEP goals. As the annual review neared gathered progress reports from teachers and prepared progress report for. noted that class had been recommended earlier in the year, but that and wanted to remain in class. testified that earlier in the year had thought that class was an appropriate placement but as the year progressed recognized that it was not an appropriate placement. noted that generally a student with would be recommended for a more placement and felt it was important to note in progress report the opposition to class. While states in a update dated that is struggling academically and is out over academic failure despite so help states that is not an option. At the CSE meeting to develop an IEP for the held on testified that the attended and participated in the meeting. The goals and placement recommendations were discussed. The goals were developed and discussed at the meeting and reviewed with . did not recall any disagreement from relating to the goals, accommodations, or placement. expressed concern about grades. stated that there was a discussion about class placement, but were not in agreement but were advised that if changed mind that they could contact the school. denied that there was any discussion of class placement at the CSE meeting.

I do not credit assertion. was not recommended. There was no request for by and there had been no reports from the or teachers that would benefit. had administered a psychological re-evaluation of and the results of the testing was consistent with previous testing so there was no need to do additional testing. failed all core classes at the end of the school year. The Parent argued in the dpc that the District put back on the IEP despite being discontinued at the request of; that the testing was inadequate; that the IEP was developed relying on assessments; that there was no in the IEP relating to ; did not successfully complete any IEP goals. A review of the IEP (Ex. 1) for the school year reveals that is not listed under the Summary-Special Education Programs and Related Services but is listed under the section at the bottom of the first page. It appears to be an editing error and therefore harmless. There was no testimony at the hearing relating to a discussion of putting the back on the students IEP. testified that made progress on IEP goals and there is nothing in the record to support a finding that was being untruthful in this regard. There is nothing in the record to support a finding that the student was entitled to additional support on IEP based on the. There is nothing in the record to support a finding that the testing done by the District was incomplete or inadequate or that the documents and assessments relied on were inadequate or incorrect. did not offer any testimony or evidence to substantially refute the testimony of the Districts witnesses regarding the school year. Despite the Parents failure to substantially refute any of the Districts witnesses or evidence, I find that the District did not provide with FAPE for the school year based on the inadequate program recommendation. had spent the in an classroom and was failing from the beginning of the school year. received extra help in many different forms, to no avail. At the end of the had failed all core classes. The testimony of the witnesses for the District supports a finding that an recommendation for the was inadequate and caused a deprivation of education benefit. While had previously been in and had functioned adequately it was clear from the that it was an inappropriate placement and the student would be more appropriately placed in a . recognized from the beginning of the school year that class was the appropriate placement and two thirds of the way through the recognized it. The record reflects that were adamantly opposed to being in class and it appears that the CSE acquiesced to desire that not be placed in class by recommending a program that was clearly failing and was not reasonably calculated to enable to make progress appropriate in light of circumstances.

The Parent has the burden of proof, that the services provided were “proper under the Act” Florence County School District v. Carter 510 U.S.7 at 12, 15 (1993); Burlington, 471 U.S. at 370, that the private school offered an educational program that met the child’s special education needs. The Second Circuit has held that a “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child’” Gagliardo v Arlington Cent. Sch. Dist., 489 F3d 105, 115 (2d Cir. 2007) (emphasis in original)

A parent must show that the unilateral placement afforded the student with an educational benefit but need not “meet the IDEA definition of a FAPE…or meet state education standards” and it need not “furnish every special service necessary to maximize their child’s potential.” Frank G v.

Board of Education of Hyde Park., 459 F3d 356, at 364-65. is a school in which all students are taught on a and while it is accredited by NYSED as a general education private school it is not approved education school. The testimony of the administration and teachers at the school was that was making academic progress at the school but that was not . One teacher testified that refused to be . One of the characteristics mentioned often in the testimony of the Districts witnesses was that was a. The testimony of the witnesses was that was when first started and went to the but that kept to and rarely engaged in any activities at the school including lunch which chose to eat in the teacher’s room. testified that was concerned about leaving and feared losing the of school. This leads to a conclusion that was regressing at. The testimony of the witnesses supports a finding that was still struggling academically and that there is no support other then consultation for the teacher if requested. was also reported to still be easily by academic struggles. While the witnesses asserted that was making academic progress and getting grades that were above simply passing there was very little documentary evidence to support this position. The progress reports submitted were for a very short time from to (Ex. E) The

Program is also overly restrictive as all classes are taught in for all students. In view of the foregoing I do not find to be an appropriate placement specifically designed to meet the unique needs of the student. The third prong of the test for tuition funding is whether the equities favor position or the District. I find that the appeared at the IEP meetings and participated. There is no indication that obstructed the IEP process per se, but I credit the testimony of that did not express any opposition to the continuation of program nor did they raise the issue of an out of district placement.

However, enrolled in in the and did not notify the District of their intent to continue enrollment in for the school year. I credit the testimony of the District witnesses regarding attempts to contact and find out where the student was as was not attending school in the District. did not return any of the phone calls by the school. The District discovered where the student was when a fax was received from , on advising that the student was attending that school. In failing to advise the District of their intent to enroll in they denied the CSE the opportunity to explore alternate placements or programs for the student. In addition, the Parents had unilaterally put in to place a without permission of the District when they sent to for and to for and . In view of the foregoing I find the equities favor the District.

ORDER

Therefore, it is hereby ordered that that Due Process Complaint is dismissed as it pertains to the and school years.[7]

Due Process Complaint as it relates to the school year is sustained in that I find that was denied FAPE for that school year based on the failure to recommend an appropriate program. However, the request for tuition reimbursement is denied for the reasons set forth in the decision.

In addition to tuition reimbursement seek a variety of findings and relief for which I find as follows:

request for reimbursement of all costs associated with the evaluation of by is denied. There is no testimony or documentary evidence in the record to support a finding that is entitled to reimbursement for the evaluation by.[8]

request for reimbursement for all costs for since it began and going forward in to the future as long as it is deemed necessary by is denied. There is no testimony or evidence in the record to support a finding that is entitled to reimbursement for .

request for reimbursement of the costs of transporting to and immediately begin furnishing transportation is denied. There is no testimony or documentary evidence in the record to support a finding that is entitled to reimbursement for transportation.

seek a finding that should be allowed to take academic subjects at and non-academic subjects and extra-curricular activities at . There is nothing in the record to support a finding that should be entitled to in both the school and school as a matter of right. The request is denied.

seek a finding that the District discriminated against and by denying access to programs and extracurricular activities available to non-disabled peers by denying request for . There is nothing in the record to support a finding that the student or were discriminated against by denying their request for a. There was no evidence or testimony proffered to support a finding that other students, disabled or not, were allowed to engage in a and that the student was being denied the same accommodation, or that a denial of the accommodation sought was based on the student’s disability. The request is denied.

Dated:

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the Office of State Review website:

http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO THE RECORD ON

DOCUMENTATION ENTERED INTO THE RECORD ON

DOCUMENTATION ENTERED INTO THE RECORD ON

POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER

Footnotes

[2] attended the for the and grade as well as the grade. (Ex. A)

[4] The is a staffed with teachers that are in a and meet with students. They work on for and and do of skills. The is a staffed by teachers that work with students in a manner like the . (t. 240-43)

[5] It should be noted that the expressed an interest in discontinuing at the CSE meeting on but agreed to continue it after the teacher spoke about the significant level of need that had and the need to continue with . (t. 155)

[6] The levels were also described as ,and . (t. 456)

[7] The parties were advised to be sure to address all issues, and the relief sought, as set forth in the due process complaint or they would be deemed abandoned. (t. 316, 449, 620-21)

[8] The was given several hearing dates to produce as a witness and failed to do so. The hearing date was to be the final date for to appear and the hearing was to conclude. , attorney for advised on that date that was being and would not be able to submit a closing brief. In view of that, and over the objections of the District I adjourned the matter for approximately six weeks for to obtain representation and that could testify on that date but that it was final. On neither the nor was available. A request for further adjournment was denied and the hearing concluded. (t. 568-75, 599-617, Ex. VIII)