Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of birth:

District:

Hearing Requested By: Parent

Date of Hearing: Record Closed:

Hearing Officer: Theresa Joyner

INTRODUCTION

On January 14, 20XX, I was appointed by the Board of Education of the(District) to hear the matter of WWW A, Case #, in accordance with the Commissioner’s regulations on appointment of Special Education Hearing Officers.

The parent has alleged that the District’s actions have violated the procedural and substantive complaints of the Individuals with Disabilities Education Act (IDEA) 20 USC Section 1415 et seq..

BACKGROUND

The WWW, hereafter referred to as A, was at the time of filing this undated, Due Process Claim (DPC) girl who started the school year attending a public school. She attended that school from September, 20XX to a part of October, 20XX. Subsequently, the parent enrolled the WWW in a private school, the School The Committee on Special Education (“CSE”) convened an annual review meeting on to develop an Individualized Education Program (“IEP”) for the

WWW. The CSE classified the WWW as, the CSE recommended a special class with a WWW to teacher ratio. In addition, the CSE recommended Also, the CSE recommended The WWW was recommended for a 10-month school year and to participate in the same state and district wide assessments of WWW achievement that are administered to general education WWW.

The Parent has alleged, inter alia (1) that the District failed to provide the WWW with a “free and appropriate public education” (“FAPE”) for the (2) that the Parent’s unilateral placement of the WWW at the School was appropriate and (3) is requesting tuition district for same

The District asserts, inter alia (1) that the CSE offered A access to a FAPE in the least restrictive environment (LRE) for the school year (2) the District further asserts that the CSE generated, developed and recommended an appropriate IEP based on the WWW’s cognitive abilities, academic skills and special education needs (3)The District argues that the School is not an appropriate placement; it does not provide special education services and (4) the Parent has failed to submit the required 10 day notice under the law.

The Parent was represented by xxx, the District was represented by the firm of. The District presented three witnesses and submitted 34 parent in evidence as exhibits 1-34. The Parent called one witness and submitted 4 parent in evidence, which I are labeled as exhibits A-D. Subsequently, (Xxx) represented the WWW ; the Xxx presented two witnesses and submitted 37 parent in evidence as exhibits S1-37. The parties submitted one joint exhibit as J-1. Also, the Impartial Hearing Officer submitted 5 parent xxx evidence as exhibits IHO1-5.

A list of the witnesses who appeared and the parent admitted xxx evidence is annexed to this decision. The parties requested that the compliance date be extended several times, primarily to accommodate the mother’s unavailability, witnesses’ testimony and submission of briefs.

THE SCHOOL DISTRICT’S CASE

The District called as their first witness. Ms. Xxx is a special education supervisor and has held that position for six years. She has a Bachelor of Arts in psychology and a Master’s in special education, also she has an advanced certification in school building leader. She chairs CSE meetings, approximately hundred a year. She makes sure that WWW’ IEPs are being followed and implemented. She communicated WWW with education and staff to convene IEP meetings. She was the CSE chairperson for the 2013-xxx and xxx-xxx school years, for A’s IEP meetings. (T. 72-74)

She identified the IEP and the participants in attendance at the July xxx IEP meeting. At the meeting the CSE used the previous year’s IEP as a starting point for the meeting. She noted that the IEP had the results from prior testing and evaluations which they reviewed. The last xxx conducted by the District was done xxx. She noted that subsequently the parent had testing done in New York City and that the District’s lawyer requested the parent to provide copies of the testing and parent, to no avail. Toward the end of the meeting she requested that the parent give consent for testing since the District needed to do its own testing because it had not been given the requested parent. She left the room to get the consent form for the parent to sign. When she returned, the parent had left. (T. 85-88, at 94 and 97-98) (D13 and 32)

She identified the prior written notice and consent form for a xxxx that she had gone to obtain at the July meeting. She identified a consent form that was sent to the mother in xxx. A third consent form was sent out in September and then the mother gave consent. (T. 99 and 101-103) (D 29, 30 and 31)

Ms. Xxx explained why the CSE recommended the xxx partially based on the mother’s request and also the prior year the WWW had been in a class with ten WWW. The parent said she had done well in a small class setting. The WWW scored in the xxx. The xxxx with a maximum of five WWW was recommended to provide additional help in xxxx and a xxx to help her in that area. The class follows the Common Core curriculum, however, they go at a slower pace. xxx was recommended to assist her with xxx and to facilitate her transition back to xxx. (T. 105-106 and 108-111) (D 13 and 15) They reviewed each goal on the draft IEP and since the WWW had xxxx not attended public school the previous year, the CSE had to rely on the parent and the school for guidance. (T. 114-116)

The parent did not provide any information that the CSE could use to develop the goals. The CSE reviewed the previous test scores and the report card from xxx at the time the report card covered three quarters. Based on those scores and the report card they developed the goals for the xxx school year. She discussed the continuum of services that were considered at the IEP meeting; the WWW’s abilities and scores were best suited for a xxxx class. The recommended special class had a WWW to teacher ratio of xxx. Also, the CSE took ixxxo consideration that the WWW was not in a Common Core program at the xxxx. (T.119-121 and at 125) (D13 and 8) The parent agreed to the xxx class placement. (T at 132) Program modifications/accommodations were made as well as testing accommodations. (D 13)

The witness opined that the recommended program was appropriate and it was the least restrictive program that the CSE could have recommended. She believed that the WWW would have received educational benefit from the program. At no time during the xxx school year did she receive a request for a program review. (T. 135-136) Ms. Xxx stated an IEP does not WWW how many words per minute that a WWW reads. At the time of the July xxx CSE meeting there was no class profile available, typically the profiles are done in late August for the start of class in September. The xxx-class program is not a program for WWW with xxx; it is designed to provide additional assistance that are exhibiting academic difficulties in one or more areas. The parent never came to her during the school year to express that the class work was not challenging enough for her daughter. (T. 137-140)

On cross-examination, she acknowledged that she has never spoken to the WWW. The WWW’s classification is xxx which means it adversely impacts on a WWW’s access xxx In A’s case it adversely affects her in xxx and xxx. The underlying diagnosis for A is she has Xxx which impacts on her ability to focus and her level of xxx. The mother provided her with a letter from xxxx which WWW the WWW’s work had improved since she has been xxx. The letter was reviewed and discussed at the CSE meeting. She did not recall what A’s xxx was for the prior school year; the classification was xxx. T. 141-145) The Commissioner’s Regulation Part 200 is her guide when developing IEPs. The WWW’s confidential file is also reviewed in preparation for developing an IEP and was looked at for A’s IEP meeting. xxx is not identified in the DSM-V; it is a disability that is identified in the test scores. (T. 153-156) The WWW’s scored in the xxx in xxx WWW that she has a disability in those areas. xxx is a disability and can be a xxx disability as well. There are other forms of xxx disabilities. The approach to assist the WWW with a xxx or xxx disability is the same, focus on the specific area of weakness. (T. 157-158 and 161-164)

She compared the 20xx-xxx to the xxx-xxx IEP and noted the changes made from the previous year to the then current IEP In xxx-xxx. The later IEP offered a xxx placement in her xxxx and xxx, versus a xxx. Also, modifications and accommodations were made. She received instructions in smaller parts, things were broken down and directions were provided orally and broken down xxx steps. The Xxx program had a larger class size and had two teachers, a general and a special education teacher. The Xxx classes covered social studies, science and ELA. Xxx was to be taught in a special education class, 15:1 classroom. However, the WWW did not make herself available for the Xxx program; she attended the XXX School, a private general education school. She did not know if the school offered the WWW XXX resources. (T. 172-173 and 174-176) (Ex.13 and 32)

She directed XXX, school psychologist, to observe A at the private school. The CSE relied on the observation and report card in developing the xxx-xxx IEP along with the other parent discussed and the parent’s input. The parent told the CSE that her daughter did better in a smaller class setting. In the private school, the classroom had XXX WWW. (T. 177-179) (Ex. 4,13 and 32) The witness identified the participants at the prior IEP meeting based on her recollection; the attendee sign-in sheet was not provided for the 20XX -xxx IEP. However, the participants were noted on the front page of the IEP. She reviewed the WWW’s report card from the XXX and discussed them. (T. 190-191Ex. 8)

Ms. Xxx stated that she was not aware about A’s placement in September, 20xx, her XXX was limited to the CSE meetings and she does not know what happened with the WWW beyond the CSE’s recommendations. If the parent requested a program review then she would have convened a CSE meeting; there was no request for a program review. She does recall being copied on more than one occasion regarding xxx made by the parent. (T. 201-202) Typically the class is composed of WWW who are classified as xxx and xxx. She did not recall the teacher’s name who was assigned to A’s classroom. (T. 215-216) The witness was asked to review the xxxx that was xxx several months after the IEP meeting she chaired in July, 20xx. She stated that she had not reviewed it previously, since it was conducted after the CSE meeting. (T. 219-220) Also, she addressed the mother’s complaint xxx to the xxx and which was copied to her and others. She recalled that as a result of the xxx a meeting to review the xxx in the process of being scheduled; she did not recall if it was conducted. She believed that A had left the xxx by then and that the xxx. (Ex. A) (T. 236-237)

Ms. Xxx reviewed the social history update conducted on October 2, xxx. She confirmed that the social history update revealed the parent had told Ms. , the social worker, that A was not being challenged academically and she had no homework. Also, there had been no communication to her from A’s teachers regarding her test scores or progress reports. (T.241-242; Ex. 9) The WWW had some XXX issues and the XXX was recommended to address them. (T. 244-245)

Xxx is a state certified school psychologist for the xxx School District; she has held that position for one year, two months. Her responsibilities varies, she chairs CSE subcommittee meetings and attends CSE meetings. She conducts psychological and educational evaluations and does classroom observations. She holds a doctoral degree in school and clinical psychology. Also, she is a nationally certified school psychologist which mandates that she obtains 30 hours of continued education every three years. (T. 318-319)

In June xxx, she was asked to do a classroom observation of the WWW and did so. In July xxx, she attended an annual review CSE meeting for A; the WWW was then a rising xxxx grader. The attendees at that meeting were xxx the District’s Attorney, xxx a special education teacher, xxx , a general education teacher and the parent with her attorney. The District had requested consent to conduct an xxxx prior to the CSE meeting; consent was not given. The CSE review of parent began with the xxx dated October 13,(T. 320-322; Ex. 5)

The WWW’s cognitive functioning scores were based on the scores derived from the xxxx which tests xxx functioning abilities and is typically referred to as an xxx test. Average range scores are typically between the 25th WWW and the xxx WWW and l xxx would be between the xxx WWW and xxx WWW. The WWW achieved xxx scores, at the xx WWW in xxx and xxxx WWW in xxx. Also, she achieved a score in the x WWW in xxx and xxx WWW in xxx, both in the xxxx.(T. 323-324 and Ex. 5)

The xxx which focuses on academic achievement revealed A was xxx in several areas. Her xxx scores were composed of four components; her overall xxx score was xxx, in the xxx. Word xxx was at the xxx WWW xxx and was also at the WWW. Xxx xxx was in the xxx WWW which fell xxx the xxx range. Her xxx scores showed that she was able to perform xxx in the xxx range at the xxxx

WWW. However, in the area of xxx xxx she scored in the xxx WWW, which is in the xxx range. It’s xxx the xxx. The same was true for her xxx score which was in the xxx and xxx which was in the xxx WWW. Both xxx. xxx and xxx was in the xxx range, x WWW and x WWW respectively. Xxx stated that when WWW’ scores fall xxx the xxx range is where we start to consider very targeted interventions. She summarized that A’s overall were in xxx and her were in and i xxx and xxx facts. Also, she xxx with xxxx and xxx. (T. 325-328 and Ex. 5)

Next, the Xxx discussed the WWW’s xxx grade report card from the Xxx School. The report card reflected similar weaknesses that were found in the XXX tests. The WWW struggled with XXX and XXX As well as with XXX and xxx. (T. at 330 and Ex. 8) The WWW’s mother had expressed concern about A’s XXX during the CSE meeting; she felt that a smaller classroom setting with fewer distractions would better suit her daughter’s needs and XXX actions. The psychologist noted that during her observation on June 16, the WWW was XXX and XXX with her XXX very well. The WWW read xxx had difficulty with some XXX and XXX words. Based on the observation the CSE focused on a placement that would address A’s XXX. (T. 332-335; at 338 and Ex. 4)

The CSE developed goals at the meeting and noted a preference for updated testing so that the goals could reflect the current status of skills. However, based on the information available at that time, she felt that their recommendation was appropriate. A XXX class was appropriate because it was small and individualized support would be available, unlike in XXX class setting. An Xxx placement was considered. Moreover, the mother had expressed a preference for a small special education class since A transferred from an even smaller class setting and she was concerned with the WWW’s social/emotional health. Resource room was recommended to address her xxx deficits and XXX to address her XXX. She reviewed the class profile for the recommended class and noted that it was a good make-up of similar WWW in terms of academics and management needs. The class profile was not available at the date of the CSE meeting. (T.339-342 and 343-346) (Ex. 13 and 24)

On cross-examination, she opined that the class profile indicated that the WWW were compatible academically and behaviorally. She was not aware that A had a XXX and did not know who created the class profile. Based on the profile, none of the WWW appeared to have XXX. She discussed the profile in more detail, explained that the classifications were derived from the Commissioner’s Regulations, Part 200. XXX WWW the WWW has a XXX that impacts on his learning. It covers various issues such as Xxx, depression or anxiety. (T. 347-350) She did not have the breakdown of male to female WWW. Prior to her current position she worked exclusively with young people with special education needs.

(T. 359-360 and Ex. 24) Xxx acknowledged that the WWW received X and X at the XXX ; she did not know the criterions upon which those grades were based on. She did not recall any conversation with the parent regarding the WWW being XXX or discussing XXX at the meeting. All classes have differentiated instruction; instruction is provided in different modalities. Special education teachers are specifically trained to deal with various levels of academics in their classroom. (T. at 363 and 370-371)(Ex. 8)

The District’s next witness was Xxx, Director of Special Education employed by the City School District( Xxx). Her responsibilities include provision of special education services to WWW with disabilities, child find, evaluations, staffing the special education programs, supervision of said staff and all other matters as they relate to special education. She is state certified as a school counselor, school psychologist, school administrator and supervisor, school district administrator, and is licensed as a mental health counselor. (T. 397-400)

The Director participated in the WWW’s IEP developed for the xxx-xxx school year. She did not recall the mother raising concerns regarding the goals, the 15:1 classroom or any of the recommendations. The mother did not seek a program review once the WWW was placed in the 15:1. The director stated when she received the mother’s Xxx Form xxx to the Xxx office, she referred the matter to Michele Xxx, the high school supervisor at Xxx. The complaint stated that A E had been threatened by a male WWW, her IEP was defective, the program was not challenging and that her daughter had been tested. Ms. Xxx testified that the school had made several attempts to obtain the mother’s consent for a reevaluation prior to the CSE meeting and after it. She was not aware consent had been provided and that the testing had occurred. The director noted the mother had not complained to her. However, upon receipt of the complaint, she called Ms. Xxx to make sure a CSE meeting was scheduled to review the results of the reevaluation. A CSE meeting was required to make a change in placement. (T. 401-404 and 406-409) (Ex. A and B)

The CSE meeting was not held because the mother without notice to her removed the WWW and placed her in a private school in the New Rochelle School District. Ms. Xxx became aware of the Xxx’s removal by an email dated 10/27/14, from Mr. Scapoli, Xxx’s attorney. She stated that the xxx took immediate XXX against Xxx. The xxx , and never XXX. The director opined that the mother had several options available to her in lieu of placing her daughter in a private school. The parent could have requested a program review, come to her and or requested a transfer to another school in the district. The director stated that based on the available information at the time of the IEP meeting, the CSE program recommendations were appropriate. She discussed the other programs considered and that were rejected because they were not able to provide the academic support the WWW needed. (T.410-413 and 414 -415) In addition, any of the personnel who worked with A had the right to request a team meeting or a program review to discuss their concerns. The parent did not request the Xxx to reconvene to review the test results. (T. 416-417 and Ex. B)

Ms. Xxx stated that she was aware the xxx had been xxx part of the xxx school year. She noted that grades at a nonpublic school that are not common core driven cannot be equated to grades in a public school that is common core driven. (T. 422-425) She did not recall the mother bringing up her daughter was xxx at the xxx-xxx CSE meeting; she recalled the xxx’s attorney raising the matter. Xxx is not a disability under Part 200 Regulations. (T.442-445) She received the mother’s complaint xxx to the xxx by email. xxx made by xxx to other xxx are XXX by the building team; it’s not typically part of her responsibilities to XXX things that happen at the xxx level. She handles placements of xxx at the elementary level, not at the secondary level. (T.446-449 and 452-453) (Ex. B) She did not know who specifically selected the students to be in A’s class, someone from the general education department would have done the selection. (T. 454-

456) She called Ms. Xxx because the complaint raised IEP issues and she xxx a CSE meeting scheduled. (T.466-467 and Ex. B) The director was not involved in the xxx xxx from the xxx. (T. 482-483)

THE Parent’s CASE

The mother testified that A started attending the High School in September xxx. (T. 530-531) She had informed Xxx that her daughter has a XXX (Xxx) and has xxx. The xxx impacts how her daughter xxx and xxx xxx and xxx sometimes she sees xxx, xxx or in the xxx. She explained that the Xxx makes it difficult for Xxx to xxx and she requires xxx to get back on task. (T. 534-537) Prior to attending for the 2013-xxx school year, her daughter attended the Learning Tree Multicultural School (Learning Tree) where she performed very well academically and received favorable reports from her teachers. Her classroom consisted of 12 special education WWW with a general education teacher and a special education teacher. (T. 539-540 and 542-545)

When she attended the July, xxx IEP meeting the mother told the CSE that Xxx needed a smaller class size. Also, she requested that her daughter not be placed with students xxx who have behavioral problems. Her daughter did participate in the xxx transitional program at Xxx. The CSE did not address the student’s xxx’ xxx. The CSE told her that Xxx would be put in a smaller class and would not be with students who had behavioral problems. She was not given a profile of the class and was not told that any of the students xxx had any type of xxx tendency. However, there were several incidents that occurred with X, who continually XXX Xxx, and xxx.. Her daughter had an xxx and told X to xxx from her. Both students were taken for a xxx session. There was a second xxx and during the xxx xxx. She told the school about the xxx, wrote reports to the school and xxx. She felt the situation was xxx and that the school was not doing anything to address it. ( T. 546-549 and 552-553)

She filed a complaint which she xxx to several persons at the school. In the complaint she addressed the made xxx , the inadequacy of the IEP and that there were disruptive students in the class. She was told by the xxx that X was not supposed to be xxx. (T. 553-556) She made inquiries at the school following the third xxx regarding the xxx and was informed that xxx and xxx the school. She followed up with another complaint reiterating her concerns regarding the xxx, the IEP and alleged lack of response from the school. In addition, she noted that she received a letter from the school directing that all correspondence be directed to the district’s attorney. She informed the school that as of xxx, xxx she had withdrawn A from Xxx pursuant to xxx and academic concerns.(T. at 553 and 561-564) (Ex. B and D)

The mother stated she removed A from xxx after speaking to the xxx and speaking to the principal at Xxx who would not confirm or deny if X xxx to the xxx. Also, she noted that she had spoken to all of A’s teachers and xxx and they had told her that scholastically A was functioning above the academic standard for xxx. The decision to remove A was driven by her concerns for her daughter’s xxx, xxx and education. Her homework was minimal and consisted of material she had learned earlier. She was not learning anything new. The xxx class was the only class that xxx a challenge and Xxx attended xxx tutoring after school. She was xxx xxx. She did not receive any assistance inside class for her xxx. She was receiving almost xxx and received xxx. She complained to Ms. xxx about school time on xxx; the xxx sessions were not reduced. (T. 565-568 and 569-571)

She enrolled A at the Xxx School(Xxx) her total out of pocket expense was $33,000 which included tuition and tutoring at the Xxx. The school is affiliated with xxx, which addressed her xxx and disabilities. The costs covered from October through June. She compared A’s performance in public school to Xxx. In the public school her daughter was exposed to bad behavior, such as cursing and aggressive behavior. In Xxx, she is fitting in socially and her grades are good. She is learning a second language, being exposed to politics and community service. The mother testified that she believed that the Xxx could not appropriately www her daughter. (T. 573-576 and 577-580.

On cross-examination, the mother acknowledged that she had no professional background or experience in the field of education and that her opinion of the Xxx was based solely on her observation of A’s educational experience in the xxx. She stated that she found the xxx- IEP defective for several reasons and that the failure of it to identify xxx as among A’s disabilities, was one of its defects. She confirmed her attendance at the July 17, xxx, she did not recall the district ever asking her for xxx prepared by the Department of Education (Xxx). Any parent prepared by xxx she turned over to her attorney. (T. 583-586 and 595-597)

She did not recall ever seeing an IESP prepared by Xxx. The mother did not recall at any of the meetings with Xxx that anybody described her daughter …”as having difficulty managing her behavior and emotions or having outbursts and difficulties managing her mood.” (Ex. 17) When asked if she had observed A as having difficulty adjusting to changes in her routine, the mother replied her child follows directions. She stated that A does not have difficulty modulating her emotions. She had no recollection of any discussions with representatives from Xxx about concerns with A monitoring her xxx, xxx or difficulties fitting in at the xxx.. (T. 603-604 and 607 -608) She stated that she requested a CSE meeting to review and make changes to the July, xxx IEP based on her concerns with that IEP. In response to her request, she was told that the district would do some evaluations. Two weeks later, she sent A to another school. She believed that some of A’s courses were xxxs level courses. She made direct payments to both Xxx and Xxx. (622-625 and 626-628) (Ex. 13)

THE STUDENTS CASE AS PRESENTED BY HER ATTORNEY

Ms. Xxx called XXX as her first witness. Ms. XXX is the xxx director of Xxx in XX. She has been employed as the director for XXX years. Her prior professional work experience was not in the education field. She has a bachelor’s degree in psychology and few credits towards a master’s in childhood education. Her primary duties consist of meeting with the parents, enrolling the students, overseeing initial testing and monitoring their progress monthly. Later the students are reevaluated. She met the xxx and the parent in xxx and oversaw her program throughout the time that she attended xxx. (T. 782-785)

When the student began at xxx in February, xxx; she was in the xxx graded. She was tested for three to four hours on a number of different levels and academic areas, such as xxx, xxx and writing. She was also administered the xxx Test and her study skills were evaluated. The various testing is done to determine the student’s level of performance in xxx areas so as to ascertain her needs and to develop an individualized program based on the testing results. The testing revealed the xxx was xxx in xxx, xxx, and xxx. She exhibited strength in her xxxy which was on xxx level and on the xxx her xxx was about in the range. XXX offers a variety of programs; A participated in the program. The xxx offers subject xxx, xxxx and adult programs. The xxx struggled with being able to xxx the xxxx of what she was xxx to be able to xxx what the xxx was saying. XXX was another area of concern; she was started on a level. Xxx instruction began in the first area that she did not know and was developed towards the goal of bringing her up to xxx level. They worked on xxx skills; they did not work on school work or give her homework. (T.786-789 and 790-791)

The majority of WWW’s teachers are New York State certified and some are certified in special education. The WWW are typically set up in a 4:1 ratio with partitions on the side of their desk while they work on their individual programs. Although the WWW sat together, they were instructed on their specific program. The xxx focused on xxx. She began xxx instruction somewhere between XXXX and XXX grade skills. In xxx she worked in a group setting with individualized instructions and later she received XXXXXX. Also, she received some help in XXX. She received approximately X hours in XXXg an hours in subject tutoring. The mother paid approximately $9200. to XXX. (T.792-796)

The director reviewed the WWW’s academic evaluation results. She scored in the average range on the XXX. She scored a in the oral xxx when she in the X grade mid-year, she was about 5 xxx xxx where she needed to be for sight words. The Burns and Roe Informal Xxx Test required her to read aloud and focused on her level of WWW. She was tested on the XXX xxx and XXX grade levels. She retained X of the passage, she had X WWW with XXX on the X grade level and on the xxx grade level she retained x WWW with XXX miscues. The second part of the test required her to XXX X and she was timed. She read for X seconds on the X grade passage, the median rate is X; she retained X. She read 108 seconds for X grade, the median rate is XXX. She retained X. On the X grade level, she read for XXX, median rate was X, and she retained X. ( T.798-801 and Ex. 20)

The is a multiple choice standardized test nationally that evaluates students for grade level performance. She was given a level, which is xxx to xxx grade within XXX norms. She scored in the X WWW for vocabulary, xxxWWW Xst WWW and her xxx score was in the xth WWW. All three of them have the xth WWW range as xxx. She received a grade of x on her writing sample. The Survey of xxx test presented 100 statements to A and she had to evaluate each one on how she felt about the xxxxs she was reading, strongly or strongly disagreed. It is considered a xxx test. She WWW that study habits and breaking things down were challenging to her. She ranked in the WWW. (T. 801-803 and Ex. 20)

The Xxx Exam evaluated her xxx skills starting from x and x grade level xxx. She struggled with xxx. She was xxx with xxx; she got xxx and xxx. She had to complete 119 questions, she xxx and of those she answered xxx xxx correctly. She got about X of the xxx correct from xxx to xxx grade. (T.804-806) The xxx is pretested in an area and then posttest. As the xxx mastered a level, she was moved up to the next level. She advanced from about x grade somewhere between x and x grade in the xxx. When she received subject tutoring, she worked on her xxx school work. (T.811-813 and Ex. 24)

The WWW was given three administrations of the. The first one was administered on February 6th and 7th, xxx; the winter version. She was tested on the xxxx grade level. In vocabulary, she placed in the xth WWW, WWW was in the x WWW and xxx concepts were in the xxth WWW. These test results were prior to receiving any instruction by WWW.The second WWW was administered on April 24, xxx; it was on the xxx grade level. This was the spring version which is normed on xxx graders in the xxx month of the school year. The test is a little harder because WWW are expected to have progressed over the extended period of time from the xxx test to the spring test. In vocabulary, she advanced from the xxth WWW to the 76th WWW and in WWW she xxx xxx from initially scoring in the xxth WWW to the 40th WWW. She advanced in xxx from the xxxth WWW to the xxrd. The xxth WWW is considered average. The third test was administered on June 10, xxx; it was on a xxth grade level. She scored at the xxth WWW in vocabulary, the xxnd WWW for WWW and the xxth WWW for xxx. In comparing the February results to the June results, the WWW made substantial progress, She xxx from scoring at the xxx WWW on xxxx grade xxx to the xxth WWW on xxth grade xxx. Also, she advanced in vocabulary from the xxth WWW to the xxth. She advanced one WWW in WWW. (T. 814-817; 818 - 821 and at 822) (Ex. S-22)

The WWW’s progress record iWWW from her xxx to WWW in February xxx through June xxx, the WWW advanced approximately one and a half grades. In vocabulary, she xxx from xxx grade to xxx, in xxxWWW from xxx to mid xxxx grade level and in xxx she advanced from xxx grade level to xxx to xxx grade. (T. 833-836 and 840-841) (Ex. 23 and 24). WWW held meetings with the mother showing A”s work and detailed her progress and they also coordinated with the WWW’s school.(T. 842-843) She opined that based on the review of the WWW’s records and her personal knowledge of the WWW the WWW made progress in some key areas. (T. 846-847)

On cross-examination, the witness acknowledged that she did not personally tutor the WWW or administer any of the evaluations to A. She did not know whether any coaching or Education was provided to A in administering the assessments. The WWW and the WWW Xxx Placement Exam was timed and the WWW was not given any extra time. She did not recall any of the parent given to her WWW that A was highly distracted during the assessments. The WWW is not tied to the common core. She believed that A’s sessions ran for two and a half hours, about three to four times a week. (T. 848-851 and at 852) On the informal xxx inventory, for oral listening. The WWW scored fair on both the xxx and xxxx grade levels and poor for the xxxx grade level passage. When the WWW began her major areas of concern were in WWW and vocabulary. She performed better on the standardized testing because it was multiple choice. However, she had a difficult time answering questions orally. (T. 854-857 and at 858) (Ex. 24 and 20) She agreed that A required special instruction in xxx and it would be difficult for her to handle xxx in a regular classroom.( T. 858-859) There was no documentation in the WWW’s file to WWW that she attended any special education classes.(T. at 863)

WWW does not provide any xxx and does not have a school psychologist. There were six teachers who taught A; one was a state certified special education teacher. There was nothing in the WWW’s progress records that showed the exact time each instructor spent with her. (T. at 864 and 867-869) (Ex. S-23 and

24) The WWW’s parent was billed at $45. per hour. for skill tutoring. A computerized system analyzes data from the assessments and produces a recommendation for how many hours per area the WWW needs to reach grade level. ( T. 870872)

On re-direct, Ms. DelMonaco stated that she was not aware of any standardized test being administered to A that was not in accordance with the test instructions. She was not aware that A received therapy on the outside. (T. 874-

877) The WWW’s sessions typically lasted two and a half hours; she was given a five to ten-minute break to focus herself for the next topic. (T. at 879) Subject tutoring was billed at a rate of $82. per hour. The learning skills tutor’s minimum qualification was a bachelor’s degree and those who were not state certified teachers worked as a certified teacher’s assistant. (T. 885-888)

The WWW’s final witness was Douglas E. Xxx, Jr., headmaster of the Xxx School; he has been the headmaster/principal since 1968. He has no certification in special education; he was unclear if his general education certification, from the early ‘60s, to teach high school WWW was still valid. The headmaster’s duties require him to administer the academic program and supervise all activities within the school. Also, he promotes education locally and internationally. He routinely interacts with the WWW population of 170 on a casual basis and sometimes in a more personal manner. (T. 932-935 and 936-938) He is familiar with A from the time of her enrollment at his school and has met with her mother several times. He noted that her academic record was not particularly good, however, she advocated WWW for herself well. No initial assessments were done; the staff relied on parent from the Xxx and other parent. The WWW’s weakness when she entered their program in October, xxx was in language arts and a severe deficiency in xxx, xxx grade level. She was substantially xxx grade level overall. They modified their curriculum to meet her academic levels. He did not know if the WWW had any medical diagnosis.

(T. 939-942 and 945-948)

She was highly distractible and had a bumpy start; she was not easy to deal with. Meetings were set up with faculty for her to go get help with her social interactions; she would not attend. She would misreport about something occurring at school and the staff would be contacted by the mother or another family member regarding same. The staff would explain that the incident or matter never took place. There was some improvement during xxx-xxx school year, nothing dramatically. (T. 951-953) He reviewed the school mission as stated on the website. Their goal is to attract academically talented WWW and to address their specific strengths with various courses. The school covers a typical academic program and offers more in terms of international exposure. The thematic component of their program offers the WWW opportunity to study courses for one year saluting a different country or culture selected by the school. After completion of that study, WWW are allowed to travel with the school and represent the school abroad. The school was saluting South Africa when A started. He did not think A took any thematic courses. (T. 955-958 and Ex.D-16)

He described in detail the accrediting process to become a member the Advanced, a national and international educational organization. Typically, WWW are given about two hours of homework a night. He explained that the concept behind Glory Days was to expose the WWW to the spiritual world and different religious beliefs. The WWW are taken to various churches, mosques, temples, sacred sites and cemeteries. It was during one of those visits that A hit a bump in the road. She asked a teacher to use the washroom and told him she would find her way back to the bus. The WWW boarded the bus and it was determined that A was missing and they searched for her. The WWW was WWW and she felt slighted. She felt she was left alone and it was deliberate. The headmaster noted that if you looked through the glass partition, the bus could be seen. (T. 959-962 and 963-964) (Ex. S-13, 15 and 16)

The headmaster discussed A’s academic program for the xxx-xxx school year. He explained that the course selection was to provide a program where he believed A could experience success and be motivated to be more successful. She struggled with abstract reasoning, so the staff selected some courses that were more visual. They tried to place her with WWW that were more age appropriate. He noted that it was difficult to select a program for A because of her skill deficiency and age. (T. 966-968) He confirmed that A’s teachers were on the faculty list given to him. He further explained that the selection of courses for A were done in an effort to offer her subject and material that she could handle with less stress and more ease than if placed in xxx program for all xxxx grade level. Also, since their classes only had ten to twelve WWW, it was felt she could focus better and receive the attention she needed in class. (T.969-971) (Ex. S-18 and 19)

He discussed her progress reports, the staff was disappointed in her performance. The WWW did not put forth the effort to focus, do her daily work and cooperate. She would not avail herself of the extra help offered by her teachers. She had six subjects and failed three. Even though, her academic performance was poor, they sensed a change in her attitude and outlook. They told the parent that A needed to go to summer school and get credit for courses taken. However, the parent opted to send her daughter to WWW. He was not aware that A had attended WWW during the school year. Her Iowa tests showed inconsistently good and poor results. The WWWs ranged from 18 to 90. He believed that A had academically progressed during the xxx-xxx school year. (T. 973-976, 978-979 and at 981) (Ex. S-26, 27 and 35) The WWW’s tuition was prorated since she started after September; it was approximately $14,000; it was paid in full. (T 984-986) (Ex. S-3 and D-16)

Mr. Xxx acknowledged, on cross-examination, that he had no certification in special education, he never taught a special education class and had never served as director of special education. His school was not approved by the state for education of WWW with disabilities and never sought said approval. The school does not hold itself out as proving special education services and it does not purport to encourage www by WWW with disabilities. Ten WWW of the WWW population has IEPS. He testified that none of A’s teacher had certification in special www. (T.988-991 and 992-994) (Ex. S18 and 19) He stated that A was removed from class several times for being xxx, xxx, xxx and for xxx. (997-998) The WWW often came to school late and he spoke to A and her mother regarding the lateness. The mother was xxx and not xxx. (T. !006-1007)

On re-direct, he had not reviewed A’s IEP when developing her academic program. Subsequently, her teachers were aware that she had special needs. He was familiar with all of A’s teachers and did not feel her teachers needed to be certified in special education in order to teach her. His teachers are experienced and are aware that their WWW come to the school with either a gift or a talent or weakness. The teachers are sensitive to the WWW’ needs and their programs are designed to meet those needs. ( T. 1008-1011) The WWW’s behavior did improve as did her attitude. (T. at 1012)

FINDINGS OF FACT AND DECISION

Two purposes of the IDEA are (1) to ensure that WWW with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and education of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491[2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a WWW when (a) the 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 WWW to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Education. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school education are required to comply with all IDEA procedures, not all procedural errors render an IEP lexxxly inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Education. Sch. Dist., 346 F.3d 377, 381 [2d Cir.2003]; Perricelli v. Carmel Education. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

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 WWW received a FAPE (20U.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 parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school education are not required to "maximize" the potential of WWW 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 WWW with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs.

B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The WWW's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 XxxRR 200.1[cc],200.6[a][1]; see Newington,546 F.3d at 114; Gagliardo v. Arlington Education. Sch. Dist., 489 F.3d 105,108 [2d Cir. 2007];Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp.2d 384, 388[S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).Also, a FAPE must be available to an eligible student "who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade" (34 C.F.R. § 300.101[c][1]; 8 XxxRR 200.4[C][5])

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the WWW's needs (34 C.F.R. § 300.320[a][1]; 8 XxxRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 XxxRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R.§ 300.320[a][4]; 8 XxxRR 200.4[d][2][v]; see Www of the Dep't of Educ., Appeal No. 07-018; Www of a Child with a Disability, Appeal No. 06-059; Www of the Dep't of Educ., Appeal No. 06-029; Www of a Child with a Disability, Appeal No. 04-046; Www of a Child with a Disability, Appeal No. 02-014; Www of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Subsequent to its developments, an IEP must be properly implemented (8 XxxRR 200.4[e][7]; Www of a Child with a Disability, Appeal No. 08087).

A board of education may be required to reimburse education for their expenditures for private educational services obtained for a WWW by his or her education, if the services offered by the board of education were inadequate or inappropriate, the services selected by the education were appropriate, and equitable considerations support the education' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress ixxxended retroactive district to education by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the WWW a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition district for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

I have reviewed all the testimonial and documentary evidence. The CSE convened an annual review on July 17, xxx to develop an IEP for the xxx school year. The CSE recommended xxx in, xxx. Also, they recommended a xxx daily, in a group xxx minutes per session. Two sessions of were recommended, xxx. (Ex. 13) Ms. Xxx, the special education supervisor, who participated in the annual review, identified the parent reviewed at the CSE meeting. The parent reviewed consisted of the prior IEP, the district’s xxx from October an October xxx social history update. A’s xxx incomplete report card from the previous year, a June, xxx classroom observation, a social history update and input from the parent. The WWW had attended private school the previous year and the district had to rely on the private school and parent for information . The parent provided little information and none that the CSE could use to develop goals. She noted that the district had requested prior to the meeting to receive the more xxx results of xxx done by the xxx School District and the IESP; neither the parent or her lawyer provided the requested parent. Also, the district had sought consent to do t xxx it was not forthcoming. (T. at 87, 94 and 115- 119 ) (Ex. 32, 5, 9,8 and 4)

Dr. xxx, school psychologist, conducted a classroom observation of the WWW in June xxx and participated in the CSE annual review. She recalled that prior to the July, xxx meeting, the district had requested consent to xxx, to no avail. She testified that the xxx A had xxx and xxx and xxx facts, as well as xxx. The WWW’s report card reflected xxx.. ( T. 328-329) The CSE made their recommendations on the information given to them. The recommendation for xxx class was to address the WWW needs for a lot of xxx support. It provided WWW with individualized support which typically would not be available in a larger classroom setting. In addition, the mother advocated strongly for a small class setting; the WWW’s prior class was xxx In addition, the team was concerned about the WWW transitioning from an extremely small classroom to a much larger classroom setting and felt it might be unnerving to A. The xxx was to address her xxx and XXX to address the parent’s concerns about A’sXXX and XXX.( T. 342-344)

Xxx, the director, noted at the CSE meeting, the parent did not express any concerns regarding the xxx or voice any xxx to the overall recommendations. (T. at 401)There was no xxx because the parent would not give xxx. XXX times after the CSE meeting, the district sent consent forms. The director stated the parent had not xxx to her regarding A’s IEP. Upon receipt of the mother’s complaint to the XXX, dated October, she directed Ms. Xxx to schedule a CSE meeting to review the results of the xxx. The meeting was not held because the parent unilaterally removed the WWW from public school to private school. The parent did not provide notice of her intentions to place A in another school or that she would seek tuition reimbursement. Also, in the parent’s complaint she expressed concern for her XXX since XXX. The district took immediate action regarding the XXX, XXX was XXX and then XXX.. The parent had several options available to her, other then placing A in private school. There are XXX in XXX the mother could have requested a XXX or gone to the director or requested in writing for a program review. (T. 406-409; 410-413 and at 414) (Ex. 23 and B) The district’s recommended program was reasonably calculated to provide the WWW with an opportunity to make meaningful progress in the least restricted environment, it addressed her academic deficits as well as her social/emotional needs.

However, the WWW alleges, inter alia, that the district failed to provide the WWW with a FAPE for the XXX school year because it failed to reconvene to review the results of the triennial evaluation. The district of residence was not divested of its responsibility to provide the WWW with a FAPE when the parent placed A in a private school WWW in a different district. The Xxx, district of residence, had an ongoing obligation to provide A with a FAPE even though the WWW attended a private school beyond the district’s physical borders. J.S. v. Scarsdale Union Free School District, 826

F. Supp. 2d 635,665 (S.D.N.Y. 2011). In E.T. v. Board of Education of the Pine Bush Educational School District, U.S. Dist. LEXIS 167977 (S.D.N.Y., November 26, 2012). the Court noted courts have recognized “that residency, rather than enrollment triggers a District’s FAPE obligations.” Accordingly, both IDEA and New York State Law have found that the district of residence has an ongoing obligation to offer WWW a FAPE who reside within their district and who may attend schools outside of their district.

Here, the district refused to reconvene to review reports from the xxx conducted several months after the July XXX IEP meeting. The director testified in response to why the CSE did not reconvene to consider the new evaluation as follows: “Because the parent unilaterally pulled the child out of XXX and placed her in a nonpublic school in the XXX School District.” (T. at 410)

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a WWW did not receive a FAPE only if the procedural inadequacies (a) impeded the WWW's right to a FAPE, (b) significantly impeded the education' opportunity to participate in the decision-making process regarding the provision of a FAPE to the WWW, 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 XxxRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Education. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL3852180 [2d Cir. Aug. 19, 2008]). I find that the district’s failure to reconvene to review the new evaluation resulted in a denial of FAPE. The district has not met its prong one burden under Burlington, to provide FAPE The XXX contends that the annual goals in the XXX IEP are inappropriate and insufficient to meet the A’s needs. I find this argument not persuasive, the district relied on information available to them at the time, which provided sufficient information to target the unique needs of the WWW. The child attended private school in the previous year, the district relied on the limited information from that school and the parent as well as its earlier testing to develop goals. The goals addressed the WWW’s xxx, xxx and provided A’s XXX which are documented in the record. Courts have consistently held that the lack of appropriate or insufficient goals on an IEP does not constitute a denial of FAPE. G.N. v. Bd. of Educ, 2007 WL2265035.

Also, the Xxx notes that the CSE issued two different Prior Written Notices, both dated July 17, XXX. The distinction between the two notices, is one recommends a special education program, 15:1 with related services and the other notice requests consent to reevaluate the WWW, to conduct a social history and a psycho-educational reevaluation. The record shows that district’s most XXX was conducted October, which was still within the XXX when the CSE convened in July, XXX. The social history was not; the alleged inconsistency, at best, is de minis when weighed against the mother’s refusal to provide the more recent testing from XXX and refusal to provide consent for the district to do its’ own XXX. The district must have XXX to do a XXX. Also, it is noteworthy to mention that the Xxx cites to Application of a Child with a Disability, Appeal No.14-161 at p.13. There, the CSE specifically noted in the comments attached to that IEP, it could not make a recommendation without the necessary data and agreed to reconvene once it had the information. Here, the CSE determined that it had sufficient information to make its recommendation and there were no contrary comments indicating otherwise.

The Xxx alleges various other violations, some of which were not alleged in the complaint, that are without merit and or fail to rise to the level of a denial of FAPE individually or collectively.

Next, prong two requires that the services selected by the education were appropriate. The parent placed A at the Xxx School (Xxx) which is not a XXX school and does not hold itself out as providing XXX. The headmaster described it as a Mr. Xxx testified that he knew most of A’s teachers were XXX and did not know if any of her other teachers had XXX. ( T.988-989 and 991-993) He noted that the WWW was

XXX. She was sometimes XXX. The school did not have any social workers or counselors on staff. (T. 997-998) and at 1014) The WWW’s XXX clearly demonstrated the need for XXX while in school. The mother was XXX.(T.1006-1007)

The headmaster stated when she entered his school she was XXX.. Her XXX he compared it to …“throwing a dart at a target almost half blinded”… (T. at 966) The only XXX made for the WWW was in xxx; she was placed in a XXX xxx class. Also, he admitted that he did not review her IEP when developing her program; he reviewed it later in the year. There was no mandatory tutoring complaints, although it was available, A did not participate. The WWW took XXX subjects; she XXX subjects. (T. at 978) He stated that she made progress toward the end. “But for us, insufficient.” (T. at 981)

Based on the foregoing, I find that Xxx was not an appropriate placement, it did not provide the WWW with XXX classes which were needed to appropriately address her academic deficit XXX and did not provide the XXX support that XXX. . Also, XXX did not offer XXX that the WWW XXX.. In sum, it did not address the WWW’s unique special education needs.

The Xxx is seeking district for services rendered by Xxx (Xxx). The parent’s complaint did not include any claim for Xxx services and the parent did not seek to amend the complaint. The district did not consent to the inclusion of any claims for Xxx’s services. It is well settled law as demonstrated in the numerous rulings of both federal and state courts that the complaining party may not assert claims that are not contained within the four corners of the complaint unless the complaint is amended or the other party consents to allow the claim to be considered. None of which is applicable in the instant matter. 8 XxxRR 200.5(j)(ii). The WWW had ample opportunity to receive tutoring at Xxx; she chose not to accept it. (T. at 974 and at 1010) Also, the Xxx witness who testified did not administer the assessments or instruct A. She was not able to provide information regarding the assessments such as whether any coaching or clarification was provided to A during the assessments. The accuracy of the assessments cannot be established since the circumstances under which they were administered are not known. Ms. XXX did not personally XXX A. (T. 848-849) She testified that of A’s six instructors, she knew that at least one was a certified special education teacher. (at 867) She agreed that based on A’s testing that the WWW needed XXX in xxx and xxx. In addition, she felt that A would struggle in a XXX classroom setting. (T.859860)

Next, the Xxx notes that an Impartial Hearing Officer has broad discretion to fashion a remedy when she finds the district has failed to provide a WWW with FAPE. However, the record does not support district for Xxx’s services since there was no claim in the complaint for said services and there are no equitable considerations that warrant such exceptional relief.

Equitable considerations do not support the parent’s claim/WWW’s claim for district for Xxx’s tuition or for district for Xxx’s services, even if the latter claim was eligible for consideration. The parent was uncooperative throughout the CSE review and throughout the hearing process. This case was delayed for over a year due to the parent’s alleged XXX, despite requesting documentation for same, the parent refused to provide any documentation. The parent failed to respond to the district’s request for XXX conducted by the XXX Department of Education. The parent withheld consent for the district to reevaluate the WWW several times before finally consenting. The parent did not provide appropriate notice to the district of her intention to place the WWW in private school and to seek tuition district for same. The district has acted in good faith and the parent has consistently XXX their efforts to work with her and XXX the hearing process.

Based on the foregoing, I find that district failed to provide the WWW with a FAPE solely due to its failure to reconvene to consider the XXX after the XXX review. The Xxx School selected by the parent was not an appropriate placement and the equities in this case, favor the district and weigh against any district for the parent/WWW.

Order: The parent/student’s request for reimbursement is denied in its entirety.

Dated: xxx,

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the C i t y

School District has a right to appeal the decision to the State Review Officer of the New York State Education Departmexxx under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district no less than 10 days before service of a copy of the pétition f or review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The pétition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date o f mailing and the f our days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (8XxxRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and f orms can be f ound in the Office of State Review website: www.sro.nysed.gov/appeals.htm. Documentation EXxxERED IXxxO THE RECORD

Parent

A Xxx Xxx 10/14/14 1 p. B Xxx Xxx 10/22/14 3 pp. C Xxx Xxx 10/10/14 2 pp. D Xxx Xxx 10/22/14 4 pp.

District

1 Notice of IHO Appointment & Board Resolution 2

2 District’s Answer to Complaint 4

3 XXX 5

4 Classroom Observation 3

5 XXX 5

6 XXX Report 6

7 Child Study Team Minutes 1

8 Report Card from The XXXX; XXX 1

9 Social History Update 3

10 Social Developmental History 4

11 Xxx Services 1

12 CSE Attendance Sign-in Sheet 1

13 IEP XXX School Year 7

14 Prior Written Notice 2

15 District’s Subpoena for Xxx School 2

16 Xxx School Admissions Information 10

17 Individualized Education Services Program (IESP) from XXX 8

18 Note from Xxx School, Pupil Progress Reports from Xxx School 7 19 Xxx Progress Report for English; 1

20 Subpoena for Parent 2

21 Email from District Attorney to Parent Attorney regarding scheduling Resolution

Meeting 1

22 Email correspondence from Ms. Xxx to Parent 1

23 Email correspondence from Parent attorney to District attorney 2

24 Class Profile 4

25 XXX IESP 7

26 S.D. Process for Resolving Concerns 1

27 Xxx Letter 1

28 Xxx Acceptance Letter 1

29 Prior Written Notice 3

30 Prior Written Notice 2nd Request 3

31 Prior Written Notice 4

WWW

DATE DESCRIPTION NUMBER EXHIBIT #

OF PAGES

Undated WWW’s Due Process Complaint

Notice 5 S-1

5/19 Order of IHO 3 S-2

10/16 - Copies of money orders from Educational 3/2 and Governmexxxal EFCU in paymexxx for tutoring services from and for paymexxx of tuition for Xxx 7 S-3 xxx Copies of Xxx records of paymexxx for the WWW’s participation in XXX 5 S-4

10/10/XX Xxx Form filed by Parent to

Xxx School District 2 S-5

10/14/XX Xxx Form filed by Parent to

Xxx School District 1 S-6

10/22/XX Xxx Form filed by Parent to

Xxx School District 3 S-7

Undated Process for Resolving Concerns (Instructions for Use of the Xxx Form ) 1 S-8

Undated Xxx School Home Page 2 S-9

Undated Xxx School History 2 S-10

Undated Xxx School Mission 2 S-11

Undated Xxx School – What is

XX Education 3 S-12

Undated Xxx School – About

AdvancED Accreditation 1 S-13

Undated Xxx School – Homework 2 S-14

Undated Xxx School – 2 S-15 20XX Xxx School –

20XX Schedule 2 S-16

Exhibit 17 for identification only XXX Xxx Master Schedule for School Year Identification WWW’s

classes 3 S-18

Undated Xxx Faculty 3 S-19

2/25/ Xxx WWW

Academic Evaluation Results 4 S-20

2/7/ Xxx Xxx Placement

Exam 20 S-21

2/6/ Xxx 2/7/

2/20 Xxx WWW Progress

Record – Xxx 26 S-23

3/20 Xxx WWW Progress

Record – Xxx 10 S-24

3/30/- Xxx Subject Tutoring 6/8/ Session Log 17 S-25 3/xxx – Xxx School Progress 6/xxx Reports 5 S-26 xxx/15 Xxx School Pupil

Progress Report 1 S-27

5/27 XXX 5 S-28

4/15 Letter from, M.D. 2 S-29

10/15 Letter from, M.D. 2 S-30

10/15 Instructions to School Psychologist from

M.D. 1 S-31

1/29 Letter from, M.D. 1 S-32

7/7 IEP for the xxx/15school year by

Xxx School District 8 S-33

EXHIBIT 34 FOR Identifieducation ONLY

6/xxx Tests List of WWW Scores 1 S-35

7/12 Xxx School District Policy

Regarding Xxxs 1 S-36

2/7 Xxx WWW’s

Writing Sample 2 S-37

JOIXxx LIST OF DOCUMEXxxARY EVIDENCE

11/17 Stipulated Facts 3 J-1

MPARTIAL HEARING OFFICER

4/22 IHO-1 Letter from parent 1 p. 6/10 IHO-2 Letter frOM XXX 4 pp. 6/10 IHO-3 Letter from XXX 2 pp. 6/14 IHO-4 Letter from parent 1 p. 7/17 IHO-5 Interim Decision 5 pp.