NY IHO #94563-20170221: Impartial...

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THE UNIVERSITY OF THE STATE OF NEW YORK

THE STATE EDUCATION DEPARTMENT

x In the Matter of the Application of XXX , a Child with a Disability, by his Parents, XX and XX., for a Due Process DECISION AND ORDER Impartial Hearing, Petitioners, CASE No. 94563

-against-

XXXXXXXXXXXXXX

SCHOOL DISTRICT,

Respondent. x

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

243 West 99 Street (6A)

New York, NY 10025

Telephone: 347-886-3967

APPEARANCES April 20, 2016 May 12, 2016 June 2, 2016

For, Esq., Attorney — Student

Mother

Father

For, Esq., Attorney — District

XXXXXXXX, Director of Special Education

For, Esq., Attorney — Student

Mother

Father

For, Esq., Attorney — District

XXXXXXXXXX, Director of Special Education

XXXXXXXXXX Special education teacher

XXXXXXXXXX, General education XXXXXXX teacher

XXXXXXXXXX, School Psychologist, XXXXXXX

For, Esq., Attorney — Student

Mother

XXXXXXXXXX, XXXXX Teacher, XXXXXXXX

XXXXXXXXXXX, Head of School, XXXXXXXX

XXXXXXXXXXX, XXXXXXXXXX

For District

, Esq., Attorney XXXXXXXXXX, Director of Special Education

July 14, 2016

For Student

, Esq., Attorney Mother

XXXXXXXXX, XXXXXXXXXXXX

For District

, Esq., Attorney XXXXXXXXX, Director of Special Education

August 3, 2016

For Student

, Esq., Attorney Mother

For District

, Esq., Attorney XXXXXXXX, Director of Special Education

September 20, 2016

For Student

, Esq., Attorney Mother Father

For District

, Esq., Attorney XXXXXXXXXX, Chairperson for Special Education XXXXXXXXXXX, District Transition Coordinator

September 27, 2016

For Student

, Esq., Attorney Mother Father XXXXXXXXXXX, Executive Director, XXXXXXXXXXXXXXXXXXX

For District

, Esq., Attorney XXXXXXXXXXX, Director of Special Education

October 19, 2016

For Student

, Esq., Attorney Mother Father

XXXXXXX, XXXXXXXXXXXXX

For District

, Esq., Attorney XXXXXXXXXXX, Director of Special Education

On April 20, May 12, June 2, July 14, August 3, September 20, September 27 and October 19, 2016, I conducted an Impartial Hearing at XXXXXXXXXXXXXXXX School District (“district”) offices at XXXXXXXXXXXXXXXXXXX, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

Procedural History

The proceeding was initiated at the request of the parents by letter dated December 1, 2015 which made claims concerning the student’s 2015-2016 school year (“SY”) program (IHRS No. 94563). (Ex. A)^[1] At a telephone conference in January 2017, after the conclusion of the resolution period, various hearing dates were scheduled.

(T. 3)

The parents filed an amended due process complaint by letter dated February 8, 2016. (Ex. B) At a conference on March 12, 2016, after the conclusion of the resolution period following the amended complaint, various hearing dates were scheduled. (T. 3-4) The hearing commenced on April 20, 2016.

By correspondence dated July 1, 2016 the parents requested a due process hearing concerning the student’s 2016-2017 SY program (IHRS No. 97854). (Ex. KK)

The cases were consolidated by order dated July 25, 2016. (Ex. I)

The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and to enable submission and consideration of closing arguments. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T.

4, 204-205, 523, 757, 1008, 1247, 1492, 1635) The current compliance date is February 21, 2017. The record closed on January 28, 2017. (Ex. V)

Positions of the Parties

By Amended Demand for Due Process (“Complaint 1”) dated February 8, 2016, the parents allege that the September 24, 2015 IEP was inappropriate and insufficient. They assert that the XXXXXXXX program provided for the 2015-2016 SY was not appropriate, insufficient goals, predetermination and denial of meaningful parental participation, failure to provide sufficient behavioral supports, to conduct a timely IEP and create a BIP, failure to appropriately address XXXXXXXXXXXXXXXXX XXX XXXXXXXXXXXXXXXXXXXXXXXXXXX. Requested relief includes reimbursement, pursuant to Burlington/Carter for a unilaterally provided XXXXXXXXXXXXXX at XXXXXXXX located in XXXXXXXXXXXXXX (“XXXXXXX”) which the parents claim is appropriate and which they assert equitable considerations support. .^[2] (Exs. A, B, IV)

By Demand for Due Process dated July 1, 2016 (“Complaint 2”) the parents assert that the district failed to provide an appropriate program for Summer 2016 (June 27August 12) They assert that at the May 17, 2017 CSE review, held to develop a program for the 2016-2017 SY, appropriate XXXXXXXXXXXXXXXXXXXXX were requested and denied. The parents unilaterally enrolled the student in the XXXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX (collectively “XXXXX”) and seek reimbursement, pursuant to Burlington/Carter, for that placement which they assert is appropriate. They assert that equitable considerations favor them. (Exs. KK, IV)

The district denies that it failed to provide a FAPE for the periods claimed and with regard to the Summer 2016 program claims that there is no basis for the provision of Extended School Year (“ESY”) services. It claims that neither parental placement was appropriate and it states objections to reimbursement on equitable grounds. (Ex. III)

Cases Presented

The district presented the testimony of: XXXXXXXXXXX, the district’s Director of Special Education , a certified special educator and a participant in the challenged reviews; Dr. XXXXXXXXX, school psychologist and XXXXXX who was the student’s counselor during his 9th and 10th grades; XXXXXXXXXX, special education teacher who provided 2014-2015 resource room instruction and was the student’s case manager; XXXXXXXXXX, general education XXXXXX teacher; XXXXXXXXXXXXXX, transition coordinator.

The parents presented the testimony of Dr. XXXXXXX, a XXXXXXX AAAAAA AAAAAAAAAAA who conducted an independent XXXXXX; XXXXXXX, the student’s XXXXXXXXXX teacher at XXXXXXXX; XXXXXXXXXXXX, XXXXXX Head of School; Dr. XXXXXXXXXXXX, Executive Director at XXXXXXXXX; and, the student’s mother (“the parent”).

A list of documents in evidence is appended.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A) Factual Findings

With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that they each testified truthfully in accordance with their recollections and as to the opinions they held. Relevant evidence is discussed below.

******************

The 2016-2017 SY is the student’s 12th grade, he was about 16 ½ years old when he started 12th grade and his classification is XXXXXXXX. (Ex. 69)

9th Grade (2013-2014 SY)

The student commenced 9th grade at the district’s high school in September in the 2013-2014 school year (“SY”) (T. 32) He was classified with and recommended to attend inclusion classes for all subjects except XXXXXX for which he was placed in a 12:1 special class to provide instruction in XXXXXXX in a two year program. (T. 32-33) Resource room and related services of individual and group (1 30 minute session for each per week) and individual (1 30 minute session per week) were also provided as was a 1:1 full time aide. (T. 45-46, Ex. 1)

An independent XXXXXXXXXXXXXXXX (“XXXXX”) conducted at the parents’ request by a person selected by them was completed in November 2013 by XXXXXXXX XXXXXXXXXXXXXX. (T. 32, Ex. 1). Dr. XXXXXXX reported that the student did not feel comfortable in the 12:1 special XXXXXX class and his XXXXXX there were XXXXXXXX learning. She recommended that the CSE change the student’s XXXX program to a Regents inclusion class. Other recommendations included the planned fading of the 1:1 aide and parent training with regard to, among other things, XXXXXXXXX skills. Dr. XXXXXXX noted that the student struggled

with XXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXX . XXXXXXXX was noted as an identified area of need. (Ex. 1)

At a November 14, 2013 CSE review the Dr. XXXXXXXXX was present and her XXXXXXXX was discussed. Although concern was expressed by team members that the student had missed substantial instruction, the parents were in agreement with the change and the CSE made it. (T. 33-35, Ex. 2) The inclusion XXXXXXXXX class now provided required participation in the lab class and the student’s 5:1 resource room program was changed from 5 days a week to alternating days to accommodate the addition of the lab class.^[3] (T. 39-40) In resource room the student would work on IEP goals, reinforce general education instruction and work on study skills, organizational skills and executive functioning skills in a small group. (T. 67) Inclusion classes in the district were led by general education teachers with a special education teacher and a teacher assistant pushing in on alternative days to support the no more than 6 inclusion students in the class. (T. 43-45, 237-238) The IEP reported that although the student was able to perform many XXXXXXX skills at the XXXXXX grade level and was doing well in class, academic testing indicated skills in XXXXXXX. All the standardized academic testing cited had been conducted in 2011 and 2012. Accommodations, modifications and AT were provided. (Ex. 2)

Parent training and (1 home-based 60 minute session per month) was added to the IEP to support XXXXXXXXX which Dr. XXXXXXXXX had reported were not age appropriate. (T. 40) The IEP also stated that, among other things, XXXXXXXXXXX skills were an area of weakness and that the student required XXXXXXXXXXXXXX tasks. Post secondary goals, including XXXXXXXXXXXXX, and transition needs, including a course of study that would lead to that, were specified. (Ex. 2) Dr. XXXXXXXXXXX was asked to work with district staff in the creation of a

new XXXXXXXXXXXXXXXX (“XXXXX”). (T. 40-41, Ex. 1)

The student failed the 2013-2014 XXXXXXX inclusion XXXXXXX class with a grade of XXX but passed the XXXXXXXX Regents exam and the common core XXXXXX exam with scores of XX and XX respectively. (T. 41, Exs. 4, K, L)

2014-2015 SY

A CSE meeting for the 2014-2015 SY were held on April 7, 2014, followed up with a July 3, 2014 meeting at the parents’ request. The CSE recommended: the XXXXXXXX class for all academic areas XXXXXXXXXXX (T. 43, Ex. 4); related services as previously provided to the student and (for staff) a XXXXXXXXXX consultant once per quarter and an XXXXXX consultation (T. 47-48, Ex. 4) The CSE also reviewed a proposed XXXXXX and recommended: a XXXXXXXX XXXXXXXX consult with staff for four one (1) hour sessions monthly as well as staff team meetings quarterly to discuss progress and revisit the proposed XXXX to ensure everything XXXXXXXXXX. (T. 47-48, Ex. 4) Postsecondary goals including attendance at a

XXXXX XXXXXXX and independent living and transition needs were specified. (Ex. 4). The parents had requested a Summer 2014 tutoring program in XXXXXXXXXXX which was rejected by the CSE and a Summer 2014 Western BOCES credit recovery option for XXXXXXXXXX and a repeat of the course in the fall had also been discussed at the review. (T. 42-43) Modifications and accommodations as well as AT were provided. (Ex. 4)

By Prior Written Notice dated August 27, 2014, the district proposed removing the XXXXXXXXXX Regents XXXXXXXXX class and replacing it with a 5 days per week credit-bearing non-Regents general education XXXXXXXX class which would provide XXXXXXXX in the first term and XXXXXXXXX in the second term and therefore provide a makeup for XXXXXXX and build XXXXXXXX skills for a later XXXXXXXXX course. The parent’s consented to amendment on September 2, 2014 and another IEP, dated September 3, 2014 was issued. Five weekly 5:1 resource room sessions were again provided since a XXXXXX was no longer provided. (T. 50, 52-53, Exs. 5, 6)

The student’s XXXXXXXXX class in the 2014-2015 SY had about 15 students of all high school grades. (T. 301) XXXX had the support of the resource room teacher (Mr. XXXXXXXXX) who was familiar with XXXX assignments and XXXXX behavior and knew how to work with XXXX (T. 242, 303) XXX XXX XXX, among other things, kept track of XXX assignments. (T. 253-254) The student struggled with XXXX although XXXX had already taken it and passed the XXXXX and this material was essentially a review of previously taught topics needed for XXXXXX. (T. 301-302) The student failed the XXXXXXXX portion of the class and the teacher suggested a tutor. (T. 902, Exs. N, W) The XXXXXXX portion was to slowly introducing XXXXX topics to enable the student to feel more comfortable in a XXXXX XXXXX class. (T. 300-301) XXX midterm grade was and he received % on his midterm test. (Exs. N,

W) Ultimately his final grade for the entirety of the class was and his final exam grade (XXXXX was %). (T. 306, 318, Ex. 73) However, the student had been provided with all the questions that would be on the test and was permitted to take the final exam with an index card with the XXXXXXX necessary to correctly answer those questions. 4 (T. 906, 1102, 1179-1180, Ex. GG)

A full triennial reevaluation was conducted during the 2014-2015 SY. (T. 54) This included a May 2015 Psychological Report completed by Dr. XXXXXXXXX, school psychologist XXX XXXXXX who was the student’s and XXXXXXXX instructor during the 2013-2014 and 2014-2015 SYs. (T. 54, Ex. 7) WJIII cognitive testing reported Global Intellectual Ability (“GIA”) at XXX (XXXX %ile) and in the XXXXX range with overall deficits in XXXXXXX (just within XXXXXX range), XXXXXXXXX (XXXXXXXX range) and XXXXXXXXXX (XXXXXXX range). (Ex. 7) With regard to Social/Emotional issues Dr. XXXXXX reported that the student had made significant progress socially but XXXXXXXXXXXXXXXXXXXXXXXXX although XXX had improved in that area.

(T. 56, Ex. 7) With regard to academic skills Dr. XXXXXXX had noted that the results of the prior revaluations in middle school might be indicative of a

XXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 56, Ex. 7)

An educational achievement test was conducted on May 12, 2015, by XXXXXXXXXX, the student’s XXXXXXXX teacher. (T. 57, Ex. 8) The student’s KTEA-II XXXXXX composite score was with XXXXXX and XXXXXXXX scores reported to the age equivalent of a XXXXX years old (XXXX%ile) and XXXXXXXX the age equivalent of a student of XXXXXX (XX %ile). At that time the student was XXXX years old. (Ex. 8) His Reading scores ranged from the age equivalent XXXX to more than XXXX and XXX Written Language scores from XXXX years old to more than XXXXXX. (Ex. 8) Ms. XXXXXXX acknowledged that although she was not qualified to diagnose a learning disability in XXXXXXX, the student’s scores “certainly” indicated a XXXXXXXX. She noted however, that his aggregate XXXXXX scores were in the range. (T. 58, 114)

A Evaluation, utilizing the CELF-5 was conducted by XXXXX XXXXXXXXX commencing May 7, 2015. She reported that the student had average

The parent’s testimony with regard to this was credible and not contested.

abilities across XXXXXXXXXXXXX language domains with a relative strength in XXXXXXXXXXXXXXX and a relative weakness in XXXXXXXXXXXXXX. Ms. XXXXXX reported “marked progress” toward his 2014-2015 goals with improved ability XXXXXXXXXXXXXXXXXXXXXXX. (Ex. 9)

A Progress Report for the 2014-2015 SY specified that the student was XXXXXXXXXXXXXXXX in almost all XXXX academic and social IEP goals at the end of the 3rd marking period including XXXX one XXXXXX goal

(XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX). (T. 80 Exs. 17, 11) 5

The XXXXXXX teacher’s Student Observation Report dated May 5, 2015 noted that the student XXXXXXXXXXXXXXXXX. (Ex. 12)

2015-2016 SY

The CSE reconvened on June 4, 2015 to develop a program for the 2015-2016 SY, the student’s XXXX grade. (T. 59, Exs. 10, 13) Among the participants were: Dr. XXXXXXXXX as well as XXXXXX, the XXXXXXX consultant who had consulted with staff on XXXXXXXXXXXXX needed by the student; the transition coordinator/special education teacher (XXXXXXXXXXX) who advised the team on postsecondary goals and transition needs based among other things and on XXXXXXXX programs; the student’s XXXXXX grade general education XXXXX teacher (XXXXXX XXXXXXXX); the student’s XXXXXX teacher (XXXXXXX); the parent trainer provided by the district (XXXXXXX) and the parents’ advocate (XXXXXXXXXX). The parents and the student also participated. (T. 60-63, 72, 74-75, 1275, Exs. 10, 11, 12, 13)

The resulting IEP reported that the student had improved XXXXX ability to get

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXX. It was reported that the student’s XXXXXXX

The student ultimately achieved all IEP goals for the 2014-2015 SY. (Ex. 17)

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX during the year and he

had XXXXXXXXXXXXXXXXXXXXXXX. (T. 346-347, 388-389, Ex. 11)

The CSE recommended inclusion classes (with direct consultant teacher service on alternate days) for XXXXXXXXXXXXXXXXXXXXXXXXXX and also recommended XXXXXXXXXXXXXXXXXXX (5:1) services 5 times per week. (T. 64, 65, 86, Ex. 11) The XXXXXX class was to be the inclusion XXXXXXXXXXXXXX class with a daily XXXXXXXXXX class conducted by a general education teacher to provide additional support. (T. 65-66, 309-310, Ex. 11) The XXXXXXXX was to work on IEP goals and to reinforce the general education class work on

XXXXXXXXXXXXXXXX. (T. 67)

The team also recommended and with reduced from once a week to twice a month due to the reported improvements XXXXXXXXXXXXXXXXX. (T. 64, 348, Ex. 11) Monthly parent training and were provided as previously but it was decided that XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX. (T. 63, Ex. 13) The staff consultation was discontinued but those previously provided for and behavior were continued as were the team meetings. (Exs. 11, 13)

Postsecondary goals, including a XXXXXXXXXXXXXXX, and transition needs were specified as was a Coordinated Set of Transition Activities which included obtaining information regarding XXXXXXXXXXX services. It was noted that consent for a Level II Vocational Assessment had not yet been provided. (Ex. 11) ^[6]

The student had been receiving XXXXXXXXXXXXXX support but the team concluded based upon XXX XXXXXXXXXXXXXX progress that he no longer required that. (T. 63) Dr. XXXXXXX believed that XXXXXXX skills should be developed in preparation for his transition to college and that XXXXXXXXX should be discontinued.

(T. 349-351, 409) The parents disagreed that the student had made the XXXXXXXXXXXXXX progress claimed and asserted that data did not support that and that a XXXXXXXX was required. (T. 878-879, Ex. 13)

Objections to the removal of XXXXXX were made by the parents and Dr. XXXXXXXX. (T. 354, 879) As a “compromise”, the CSE provided, for a 6 week period with a review to follow after 6 weeks, XXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 68, 70, Exs. 11-

9, 13) In the Supplementary Aids and Services/Program Modifications /Accommodations section, the IEP specifies that the student will use a XXXXXXXXXXXXXXXXXXXXX. (Ex. 11) The IEP noted that there would be a revision of the 2014-2015 XXXX to address concerns about transition from XXXXXXXXX and that XXXXXX was recommended to assess the student’s needs regarding that transitioning. (T. 351, Ex. 11) I find credible the parent’s testimony that the parents and XXXXXXXXXX had not agreed with that compromise. (T. 817, 919)

On June 24, 2015, Dr XXXXXXXXXXX transmitted, via e-mail to the parent, a draft “XXXXXXXXXXXXX” to address “identified difficulties contributing to not XXXXXXXXXXXXXXXXXXX” and which addressed XXXXXXXXXXXXX

(XXXXXXXXXXXXXXXXXXXXXXXXXXXXX) XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

(T. 355, Ex. 18) He requested the parent’s review and noted his availability for a meeting until June 30. (T. 1357, Exs. 18, Z) No response was received by that date. (T. 357, 437) As a consequence of summer schedules Dr.XXXXXXXXXXXXXXXXX and the parent did not meet or otherwise consult with regard to the proposed plan prior to commencement of school. (T. 445-447)

By August 16, 2015 email, the parent requested the IEP and indicated that the parents would like schedule a meeting to discuss possible changes to the XXXXXXX and how it could be implemented. (Ex. Z) On August 24, 2015 she again requested the IEP and Ms. XXXXXXXX informed her it was being mailed and that Dr. XXXXXX would be available for a meeting at the start of the school year. (Ex. Z )

The IEP was not provided to the parents until the last week in August with a Prior Written Notice (“PWN”) dated the date of the review. (Exs. Z, 13) The PWN reported that “A disability in the area XXXXXXXXXXXXXXX was noted.” With regard to

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXX but that a XXXX was needed to address XXXXXXXXXXXXXXXXXXXXXX. The PWN noted reports of marked growth in XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and that XXXXXXXXX.

XXXXXXXXXXXXXXXXXXXXXXXXXXXX (Ex. 13)

With regard to options rejected, the PWN reported that the CSE had rejected the request of the parents and student that XXXXXXXXXXXXXXXXXXXX for the 20152016 SY; that the CSE would seek consent for an FBA to determine whether his XXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. It was also noted that the advocate’s request to increase parent and training had been denied. (Ex. 13)

On the first day of school Dr. XXXXXXXX met with the student to, among other thing, show XXXXXXXXXXXXXXXXXXXXXXXXXX. The student said that they had not been reviewed by XXXXXXXX mother and XXXXXX refused to XXXXXXXXXXX. (T. 359) Therefore, they were no implemented. (T. 360)

There is no evidence or claim with regard to any subsequent attempt by the district to obtain parental consent for the XXXXXXXXXXXXXXXXX or to have some alternative in place for an interim period and I conclude there was not. There is no claim by the parent that she thereafter attempted to discuss the checklists with Dr. and I conclude she did not. There is no evidence that either a XXXXXXXXXXXXX were in place or used from September 2015 until after the March 14, 2016 CSE review and I conclude there was not.

On September 3, 2015, via email, the parents noted that they had recently received the PWN which had reported a disability in XXXXXXXXXXXX and informed the district that they did not agree with the proposed XXXXXXXXXXXXXXX program and were requesting an alternative which provided more support. They also requested that the district conduct a neurological evaluation (for clarification of the student’s XXXXXXXXXXX deficits) and an updated AT evaluation. (T. 918, Ex. ZZ)

The CSE reconvened on September 24, 2015 to consider the parents’ requests.

(T. 89-90, Exs. 21, 22) The parent informed the CSE that she did not believe that the proposed XXXXXXXXX provided sufficient support and that she was in communication with the superintendent about XXXXXXXXXXXXX instruction and Ms.

was aware district payment for a XXXXXXXX program was desired. (T. 87-91) The CSE believed the XXXXXXXXXXX class with the XXXXXXXXXXXXXXX and other supports it had proposed was appropriate and continued to recommend that program. (T. 89) However, it extended the XXXXXXXXXXXXX to the end of the first semester (January 2016) agreed to provide neurological and AT evaluations.^[7] (T. 92, Ex. ???????)

At the June 4, 2015 review the parent had requested that the student participate in a Counselor in Training program (“CIT”) and that a XXXXXXXXXXXXXXXXXXXX be provided for that program. There was no decision at that meeting but shortly thereafter a XXXXXXX was approved but a XXXXXXXXXXXXX was denied and the student participated for the program for 2 weeks in July. (T. 896-897, 1478) It is undisputed that the program was successful for the student and in September 2015 the district committed to the provision of a job coach for a 6 week program the following summer. (Exs. 55, ZZ) The IEP was updated to reflect the student’s participation in the CIT with a XXXXXXXXXXX and that a Level II Vocational Assessment had been done.

(T. 92, Ex. 22)

A request for consent for the neuropsychological and AT evaluations was transmitted to the parents via mail on October 1, 2015 and thereafter on November 23, 2015 and January 7, 2016 to email and/or residence addresses acknowledged by the parent to have been correct. (T. 94, 102-103, 146-149, Ex. 28) The district did not receive signed consents until the end of January. Although the parent denies receipt of any consent requests prior to late January 2016 noting problems receiving mail alleged to have been sent by the district, I am persuaded that they were made as specified by the district. (T. 102-103, 941-943, 944-946, Exs. FF,YY )

The student had commenced a 1:1 XXXXXXXXX program at XXXXXX in July 2015 and XXX completed that in October 2015 and received recovery credit from the district for completion of XXX XXXXXXXX requirement pursuant June 2015 agreement by district officials after a review of XXXXXXXXXXX related documents. (T. 899-900, Exs. Q, R) XXX SAT XXXXX score after completion of the program was , a substantial improvement over XXXX May 2015 score of . (Exs. T, U) The student’s self-image improved and XXXXX had more confidence. (T. 901)

Ms. XXXXXXX, with input from Dr. XXXXXXXXXXX, conducted an XXXXX over several weeks commencing late September which was thereafter discussed with the parent. (T. 918-, Ex. 24) The

XXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXX(Ex. 24)

A draft XXXXXX dated October 29, 2015 was thereafter created which included substantial reliance on XXXXXXXXXXXXXXXXXXXX. (Ex, 23) The parents believed it did not appropriately address the student’s needs. The CSE scheduled several CSE reviews to consider the draft XXXXXXXXXXXX and each was rescheduled at the request of the parents. (T. 99-100, Ex. 27)

On December 21, 2015, the parents requested a reschedule of the December 22, 2015 meeting to enable Dr. XXXXXXXXX, a XXXXXXXXXXXXX, to complete a district funded independent evaluation (IEE), a request of the parent to which the district had agreed. (T. 100, Ex. 27) Dr. XXXXXXX had commenced observations at the school in mid-December. (T. 622)

By letter dated October 27, 2015, the parents had stated various objections to the September 24, 2015 IEP. They requested district funding for the XXXXXXXXXXXXXXX course. (Ex. GG)

By letter dated December 1, 2015, the parents filed a demand for due process. (Ex. A)

By letter dated February 8, 2016, an amended demand for due process was filed which requested the same relief as previously sought but made additional claims. (Ex. B)

Dr. XXXXXXXXXXXX completed XXXXXXXXXXXXXXXXX and, in a report dated February 2, 2016, stated that XXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXX.. (Ex. F)

Dr. XXXXXXXXX recommendations included: XXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (Ex. F)

The CSE reconvened on March 14, 2016 to consider the XXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX for the balance of the school year. The parents, Dr.XXXXXXX and Dr. XXXXXXXXXXXXXXXX participated. (T.

T. 827. Ex. H) Staff reported to the CSE that at that time

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and Dr XXXXX

discussed the results of her XXXXXX. The student’s XXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

(Exs. 62,63, H)

The CSE approved XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXX. Dr. XXXXXXXX and the parent objected to certain aspects of the

XXXXXX. (T. 696-707, Exs. 62, 63)

Dr.XXXXXXXXXXXXXXXX, a district psychologist, had commenced a Neuropsychological Evaluation after the parents’ consent was received by the district.

(T. 946) In his report, dated March 22, 2016, he diagnosed:XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXX. He made various recommendations including that: The IEP should include: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. No specific

recommendations concerning transition services where made but for determination of postsecondary goals and appropriate XXXXXXX. (Ex. I)

On April 29, 2016, the Learning Support Team met to consider the neuropsychological evaluation, consider the extent of progress with the now implemented XXXXXX and to prepare for the annual review. The team noted XXXXXXX and it proposed revisions for consideration by the CSE. It also discussed the student’s expected participation in the CIT program and possible changes to his role in it.

(T. 1316-1319, Exs. 66, 67)

The CSE convened on May 17, 2016 to develop an IEP for the 2016-2017 SY. (Ex. 69) The program recommended was essentially the same as in the prior year. However, among other things, the CSE increased the XXXXXXXXXXXXXXX services for the student to 90 minutes per week, an evaluation was added to assess fine motor speed, dexterity and visual motor integration and ADL skills, 4 hours of AT consultation was added, the consultation was increased and XXXXXXX consultation for staff was reduced to 20 hours yearly. A XXXXXXXXXX was approved. The CSE determined that the student was not eligible for extended school year (ESY) services. At the review the CSE agreed to provide a XXXXXXXX for the 6 week CIT program. The parent declined and expressed concerns regarding XXXXXX and the student’s need for XXXXXXX XXXXXXXXXXXXX. The parent informed the CSE that in the absence what the parents believed was appropriate XXXXXXXXXX the student would be enrolled in the XXXXX summer program. The parent was informed that the program was an NPS placement which the CSE could not agree to fund. (T. 1726, Exs. 69, 70)

The parents submitted an application to XXXXXX shortly after the May CSE review and the student was accepted and participated in that program for which the tuition was (T. 1727-1728, Exs. OO, TT)

By letter dated July 1, 2016, the parents requested a due process hearing to obtain district funding for the XXXXXXX program summer program (2016-2017 SY). (Ex. KK)

The two cases were consolidated by Order dater July 26, 2016. (Ex. I)

The student completed the XXXXXXXXX program in October 2016 and received a B. (Ex. BBB)

B) Analysis8

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2; and (3) equitable considerations support the Transcript and Exhibit references not specified below are set forth above.

parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

Prong 1

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The

IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

Also relevant in this matter is the following:

Under the IDEA, to the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later post-school activities, including postsecondary education, employment and independent living. 20 U.S.C. 1401[34]; see Educ. Law 4401[9]; 34 CFR 300.43; 8 NYCRR 200.1[fff]. Accordingly, pursuant to federal law and State regulations, an IEP for a student who is at least 16 years of age (15 under State regulation), or younger if determined appropriate by the CSE, must include appropriate measurable post secondary goals based upon age appropriate transition assessments related to training, education, employment, and, if appropriate, independent living skills. 20 U.S.C. 1414[d][1][A][i][VIII]; 34 CFR 300 .320[b]; 8 NYCRR 200.4[d][2][ix].

A district may also be required to consider special factors in the development of a student’s IEP. Among the special factors in the case of a student whose behavior impedes his/her learning or that of others, the CSE shall consider positive behavioral interventions and supports and other strategies to address that behavior. 20 U.S.C. 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i].

With regard to tuition reimbursement claims “[T]he case law in this Circuit is unequivocally clear that if parents seek retroactive tuition reimbursement for a unilateral placement…, then the analysis must be conducted under the Burlington/Carter test.” Appeal No. 14-088 (p. 21, n.3) However, pursuant to that test the district’s burden is to establish that it offered a free and appropriate public education for the school year for which reimbursement is sought, in this case the 2016-2017 SY. Tuition reimbursement for a unilateral placement cannot be provided as compensation for district failures in other school years. (Id.)

***********

2015-2016 SY

The parents allege that the September 24, 2015 IEP was substantively and procedurally defective make claims regarding the XXXXXXX program and supports offered and with regard to XXXXXXXXXXX XXXXXXXXXX as well as transition needs. (Ex. IV)

1) XXXXXXXXX Program and Supports

The district acknowledges the student required significant XXXXXXX support but asserts that the program it offered for the 2015-2016 SY would provide what was necessary for the student to make appropriate XXXXXXX progress. It substantially relies upon a claim that the student succeeded in his 10th grade XXXXXXXXXXXXX (“bridge”) class and argues that the 11th grade program was more supportive than that and would build on what he had previously learned. (Ex. III)

The student’s XXXXXXXX deficits were known to the CSE and are undisputed. The district’s evaluation just prior to the June 4, 2015 review demonstrated that the student, although performing well in other academic areas, was well and age th level expectations and that his XXXXXXX performance had declined from the to the th percentile. (Ex. 8, T. 263). This indicated deficiencies with regard to meeting this student’s needs in programs previously provided. (T. 677) Although there may be some disparity as a consequence of being normed on different populations, this one is very substantial. (T. 462, 677) Indeed Dr. XXXXXXXXX acknowledged that that there could have been a diagnosis of XXXXXXXX disability based upon the material XXXX had.

(T. 457)

The level of support the IEP provided for the challenged inclusion XXXXXXX class was virtually identical to that which was provided for inclusion XXXXXXX which the student had failed in the 9th grade. The 10th grade bridge class had been provided to enable review of aspects of XXXXXXX that supported XXXXXXX and to introduce XXXXXXXXXX concepts so that the student would be familiar with them when commencing the XXXXXXXXXXX inclusion class and presumably have a leg up. Although the district claims student success in that class, I find that the evidence does not support that.

The bridge class although mainstream and taught by a general education teacher was small and the student received additional academic support from XXXXXXXXXXXX teacher, a special education teacher who was familiar with XXXX particular learning difficulties and who consulted with XXXXX teacher. XXXXXX also had a 1:1 aide who ensured that XXXXXXXXXXXXXXXXXXX and the benefit of accommodations and modifications. Notwithstanding the fact that the student was already familiar with the material and indeed had passed the Regents and the Common Core exams the previous semester, he struggled even in this limited review and failed the XXXXXXXX portion of the class after receiving a grade of % in his exam. His teacher advised the parents to obtain a tutor. The student’s experience with bridge class XXXXXXXXX emphasizing XXXXXXXXXX related material does not support a conclusion that this student was likely to receive significant inclusion class benefit from an XXXXXXXXXXXXXXXXXXX. 9

Although the district asserts that the student demonstrated greater strength in geometry, I find the evidence insufficient to support that. XXXXXXX teacher pointed to no specific examples when making this claim. Further, the evidence is insufficient to establish that any greater strength XXXXXX may have had was significant with regard to reliable consideration of XXXXXXX ability to make appropriate progress in the inclusion class. The student failed XXXXXX XXXXXXX midterm with a grade of %, the same as his final failing grade in the preceding term. Although XXXXXX ultimately received a passing grade for the bridge course as a whole and a grade of % on his XXXXXXX final exam, I give that no weight. I find credible the uncontested testimony of the parent that the student was informed of the questions that would be on the exam and was permitted, indeed essentially instructed, to bring an index card to the test containing the necessary formulas to correctly answer those specific questions. No

9 It is noteworthy that the student’s difficulty in retaining XXXXXXX material previously learned was later apparent to XXXXXXXXXXXXXXXXXXX teacher. (T. 530-535)

testimony explaining this or contradicting a conclusion that this significantly undermines a claim of demonstrated success in XXXXXXXXXXXX has been proffered.

Finally, I note that I find credible the testimony that this student required a more intensive instructional program than offered by the district in view of the range of XXXXXXXXX deficits. (T. 670) I note that even in 1:1 instruction the student did not

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 531-537)

Accordingly, I find that the district failed to provide an appropriate XXXXXXXXX program and find that is sufficient to conclude that the September 24, 2015 IEP was substantively defective and that the district has failed to establish that it provided a FAPE for the 2016-2016 SY.

In the foregoing circumstances, I do not address parents’ claims that the student’s math program was predetermined and the parents were denied meaningful participation in the IEP with regard to the math program. (Ex. IV)

2) XXXXXXXXXXXXXXXXX XXXXXXXXX

The sole relief requested with regard to the 2015-2016 SY

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. A XXXXXXXXXXX

by the CSE on March 14, 2016, promptly implemented and thereafter revised on May 17, 2016. I nevertheless address this issue.

This student is not a “cookie cutter” child. (T. 785) He has

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 812)

The parents assert that the district has failed to appropriately address the student’s XXXXXXXX needs in the 2015-2016 SY. The parents’ assertions, I conclude, rest on their clams with regard to failure to provide XXXXXXXXXXXXXXXXXXXX and therefore not appropriately addressing student needs. (Ex. IV)

The evidence shows that the student has made substantial progress academically and with regard to XXXXXXXXXXX since entering the district’s high school. In an

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. (Ex. 1)

The XXXXXXXXXXXXXXXXXXX in effect for 2014-2015 school year is not in evidence and information with regard to it is limited. However, it included the

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. XXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXX.

By Spring 2015 Dr. XXXXXXXXX a BCBA who was also the student’s as well as XXXX social skills class teacher for the student’s entire period at the school, had concluded that the student had made very good progress during the 20142015 school year and that XXXXXXXXXXXXXXXXXXX needed to be fostered as the student advanced toward graduation. (T. 348-349, 388-389) 10 At around the same time the parents ceased receiving the reports and data which they believed necessary to a determination as to the student’s progress and his support needs and it was not supplied despite repeated requests for it. (T. 878-879, 889, Ex. HH)

At the June 4, 2015 review for the student’s 11th grade year XXXXXXXXX proposed that the 1:1 aide should be removed entirely and that the student’s

XXXXXXXXXXXX should be developed. The parents assert that no XXXXXXXX was presented at that time and I find that claim credible. (T. 887, 892) Further, I note that none has been submitted in this proceeding and that XXXXXXXXX acknowledged that the student had not achieved mastery in all areas XXXXXXXX (T. 406) At the review, the parents and their educational advocate objected to removal of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX in the absence of a new XXXX supporting that and the development of a new XXXXXXXXXX if required. In view of the imminent end of the school year, the parents agreed to the XXXXXXXXXX when school began. I find credible their claim that they did not agree to commence the school year without XXXXXXXXXX. (Ex. 13)

In response to parental objections, the CSE provided a XXXXXXXXXXXXXX XXXXXXXXXXXXXXX for an initial 6 week period and XXXXXXXX was to provide for parental review proposed XXXXXXXXXXXXX in a form similar to that previously used so that there would be something in place when school commenced in September. There is no claim or evidence that the XXXXXXXXXXXXbut rather, I conclude s/he was simply to XXXXXXXXX the student when XXXX transitioned from class to class. It is noteworthy that XXXXXXXXXXXXX did not agree with this “compromise” and did not believe there should have been a XXXXXX. (T. 352, 407-408, 410-412)

The proposed checklists were not sent by XXXXXXXXXXXX until close to the end of the school year when the parents were away and they were not accessed by the parent until XXXXXXXXXX had left for the summer. I find no basis for a conclusion that either the parents or XXXXXXXXXX were dilatory or obstructive with regard to this. The parents sought to meet with XXXXXXXXX prior to the beginning of school and were informed that he would be available when school began. On the first day of school, however, the student refused to use XXXXXXXXXXXXX because they had not been XXXXXXXXX by the parents. I find no basis in the evidence presented that XXXXXXXXXX attempted to contact the parent regarding this matter after the student

10 It is noteworthy with regard to that that Dr. Paul , the director of XXXXX, believed that most of the students attending the summer program had XXXXXXXXXXXXXXX and had therefore had not developed XXXXXXXXXXXXXX. (T. 1643)

rejected use. On September 17 the parent reminded the CSE that the “XXXXXXXXX is still not in place.” (Ex. ZZ)

On September 24 the CSE reconvened with regard to the parents’ concerns regarding the proposed XXXXXXXX class. The IEP remained substantially unchanged but for extension of the XXXXXXXXXXXX until at least the end of the term. The parents were informed that XXXXXXXX had commenced.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXX Dr. was also consulted (Ex. 24) The XXXXXX was concluded on October 20, 2015 and the results were discussed with the parent. (T.

918, Ex. 2)XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXX.

A XXXXXXXXXXXXon October 29, 2015. The parent did not agree with the proposed XXXXXXXXXXXXXXXXXX. (T. 436, 660) Dr. XXXXXXXXXX testified as to various concerns she had with the XXXXXXXX and those principally concerned the absence or adequacy of measures to determine success. (T. 644-659, 661-663) That draft, however, was never considered by the CSE and not implemented because of the parents’ objections. (T. 99-100, 659)

Dr. XXXXXXXXXX had commenced an XXXXXXXXXXXXX in midDecember at the request of the parent and funded by the district. (T. 100)

She completed an XXXXXXXXXXX on February 2, 2017. She too concluded that XXXXXXXXXXXXX was required. She reported XXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXX(T. 630, 809, Ex. F)

A draft XXXXX was created by district staff and the CSE convened on March 14, 2016 to consider it and the student’s program for the balance of the school year. Dr. XXXXXX, Dr. and the parent participated in the discussion. The CSE approved a XXXXXXXX which addressed XXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

X. The CSE also added XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXX. (T. 694, Exs. 62, 63, H) Dr. XXXXXX did not agree with aspects of the new XXXXX. (T. 697-709) That XXXXXXXwas shortly thereafter implemented. (Ex. 66)

I find that a procedural violation of the IDEA has occurred. I conclude that the parties acted in good faith with regard to objections to the district’s program and staff opinions concerning an appropriate XXXXXXXXXXXXX for this student. I note that the parents’ objections to the XXXXXXX were consistent with those made by Dr. XXXXX and conclude that they were not unreasonable. I find no merit in the district’s claim that the parents obstructed the development process. The district could have continued the prior program in place until the dispute was resolved or obtained parental consent to an interim alternative. It did neither and the student was left until mid-March without a needed XXXXXXXXXXXXXXXX.

Nevertheless, the establishment of a procedural violation of the IDEA does not establish a denial of a FAPE. I conclude, as discussed herein, that a procedural violation of the IDEA has occurred. R.E. v. NYC Dept. of Educ. 694 F.3d 167, 190 (2d. Cir. 2012)

However, while the Second Circuit has held that the failure to

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXX Id.

I note that in the September 24, 2015 IEP the district

providedXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXX continued to provide consultation to teachers with regard to the student. (T. 381) He testified that there have been XXXXXXXXXXXX in the 20152016 SY and opined that the student had made great progress

XXXXXXXXXXXXXXXXXX. (T. 382-383)

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXX. (T. 925, 930-932) That testimony was supported by that of Dr. XXXXXX. (T. 769, 800-807)

This student’s problems XXXXXXXXXXXXXXXX. They related to whether he could access his postsecondary goals due to XXXXXXXXXXXXXXXXXXXX deficits. In these circumstances, a behavior XXXXXXXXXX to address that was critical in the 2015-2016 SY and that the district has not established that these issues were appropriately addressed by other means.

Accordingly, I conclude that there was a denial of a FAPE.

3) Transition Issues

The district asserts that it conducted all required evaluations with regard to a determination of the student’s transition goals and developed an IEP which appropriately identified and addressed needs to achieve those goals through various aspects of the program and services provided.

The evidence shows that required Vocational Assessments (Level I and Level II) were timely and diligently sought and by the district’s transition coordinator and the results reported to the family, that information was provided to the student to facilitate his own review of possible career choices and that information and assistance with regard to the utilization of other governmental resources, including ACCESS-VR, was timely provided.^[11] The information obtained from the assessments was discussed with the CSE and placed on the IEPs at issue in this matter. It is undisputed that the student’s goals included a XXXXXXXXXXXXXXXXXXX. It is undisputed that the student was doing very well XXXXXXXXXXXXXXXXX, indeed was successful even in XXXXXXXXXXXXXX classes. I find that the program the district provided supported that programmatically and with direct services to the student and staff consultations as well as certain at home services. (T. 61, 63, 72, 78-80, 133-137 153 , Exs. 11, 14, 15, 16, 21)

Student XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

The parents focus on XXXXXXXXXXXXXXXX in their claims with regard to deficiencies in the September 24, 2015 review.

With regard to XXXXXXXXXX, there is no evidence to support a conclusion that the parents requested or had any interest in a XXXXXXXXXXXXXXXXXX for the September-June period of the 2015-2016 SY.

A XXXXXXX had been requested by the parent and granted by the district for the Summer 2015 XXXX program, prior to this review, and the parents sought and were told the student would get a XXXXXX for the Summer 2016 program in the following school year. Further I note that a vocational program during the school year would have taken the student out of school for a period and was inconsistent with aXXXXXXXXXXXXXXXXXXXXXXXXXXXX and contrary to the student’s expressed wishes when XXX vocational options were discussed with Ms. . (T. 1369). Any after-school program, if such was available to the district, would have conflicted with the student’s extra-curricular activity and there is no indication that that was requested. I note that when the CSE was considering adding even a very short period of direct home services, concerns that the student’s schedule would preclude that were raised. (T. 1330-1331)

The parents also claim that denial of a XXXXXXXXXXXXXX denied the student appropriate access to a XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. The parent testified in this proceeding that the student’s XXXXXXXXXXXXXXXXX that

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXX. (T. 1028, 1686, 1697, 1741-1743) The

district had offered to provide a 1:1 aide who would accompany the student and ensure

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX after instruction by staff members experienced in that. This was rejected by the parents on the grounds that the student did not want to be XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and further that the person would not be adequately qualified.^[12] (T. 1066-1068, 1304-1305, Exs. ZZ, 55) However, I find unrealistic the proposal that a student with this level

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXX in New York City. I conclude that the district’s proposal was appropriate to enable the student’s participation.

Further, although the parents assert that the denial was pursuant to a predetermined district policy, I find that the evidence presented here does not support that. The parent’s testimony concerning past conversations with staff lacked sufficient specificity.

2016-2017 SY

The parents assert that the CSE’s May 17, 2016 IEP has failed to provide a FAPE by failing to provide appropriate XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, for the period June 27 through August 12, 2016. (Ex. KK) They unilaterally placed the student in XXXX and seek reimbursement relying on a Burlington/Carter analysis. Accordingly, they are requesting extended school year services (“ESY”) for the 2016-2017 school year and seeking compensation for prior school claims. Appeal No. 14-088 (p. 21 n.3)

ESY services are available for disabled students when necessary to prevent substantial regression. (T. 1455) However, the parents have made no claim of regression if the services requested are not provided in the summer months.

Further, the CSE considered the issue of the need for ESY services after the parent had indicated that the student would be enrolled XXXXXXXX and concluded that there was no basis for that because there was no indication that substantial regression would occur if the services were not provided. (T. 1332, 1454-1456, 1466-1467, Ex. 69)

It is also the case that ESY services were not recommended by any of the student’s teachers or evaluators. Although in Complaint 2 the parents have cited Dr. XXXXXXXXX’s neuropsychological evaluation in which “transitional planning” is recommended, it is noteworthy that Dr. XXXXXX did not include a recommendation for ESY services. (Exs. I, KK)

I find, therefore, no support for the relief sought. Accordingly, I do not consider parents’ claims based upon student need for and entitlement to the placement of the requested XXXXXXXXXXXXXXXXX in his 2016-2017 SY program.

However, the student participated in the XXXX program in Summer 2015 for 2 weeks and the district had provided a XXXXXX which it asserts was merely an optional additional service. (T. 1861-1862) In September 2015, the parent requested that in Summer 2016 the student be provided with a XXXXXXX for the full 6 week XXXX program and the district agreed. (T. 1861) A XXXXXXX was thereafter offered by the CSE at the May 17, 2016 review. The parent informed the CSE at that time that the student was XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX for XXXXXXXXXXXXXXXXXX that purpose. The CSE denied that request. The parent rejected the district’s XXXXXXXXX offer. I am not persuaded that XXXXXXXXX was the only reasonable option in the circumstances here and that refusal to provide it denied the student a service to which XXXXX was entitled. Therefore I do not address the district’s claim that XXXXXXXXXXX was merely an optional additional service and not a program

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

A) XXXXXXXXXX

The parents seek district funding for the XXXXXXX course they unilaterally provided at XXXXXXXXXXX. Credible evidence shows that:

XXXXXXX is registered as a school with NYSED and is one of many sections of a national corporation which determines policies. (T.577-578, 586) XXXXXX provides instruction for the 6th-12th grade and generally works with mainstream, general education students some of whom have scheduling difficulties that impede access to a regular school program and others with struggles with various issues that impair their education. Those issues include depression, anxiety, learning difficulties of various kinds and students on the autism spectrum who are high functioning. (T. 579, 583, 598) Students who are significantly below grade level, have a significant level of disability or have a history of aggression are considered not a good fit for XXXXXXXXX. (T. 585, 597)

XXXXXXXX provides 1:1 instruction only. (T. 580) The Head of School, is a certified creative arts therapist and is not certified as a teacher or a school administrator but the assistant director is a certified special educator. (T. 589-590, 601) has about 25 teachers and 6 administrators/department heads. (T. 578). There is provision for access to therapy and services on a fee for service basis.

All teachers have NY State teaching certifications or are seeking them. (T. 584) All teachers are required to participate in a training program which includes: 2 days of Case No. 94563 region-wide training developed by the corporation’s educational department which includes training in how to individualize instruction; about a week of additional oncampus training conducted by the assistant director which includes the New York State math curriculum, professional development around how to tailor a program to the needs of the individual student and available individualized information about a student who had previously attended. (T. 593-594, 603-604)

The school does not administer Regents exams but provides course work leading to them. (T. 542, 586, 596) The course fee is calculated on the basis of 30 sessions which is the number of sessions determined by XXXXXXX’s corporate headquarters to be necessary to cover attendance requirements and the core curriculum for the subject and is uniform throughout the XXXXXXX system. (T. 587-588) The cost of a 30 session “semester” is . (T. 588, Exs. O, P) If a student requires more than 30 sessions to complete the semester’s curriculum, additional sessions (“mastery” sessions) are each session. (T. 600-601). The student’s XXXXXXXXX program at XXXXXX was accepted by the district as recovery credit for XXX failed XXXXXXXX course. (T. 586, 899-900) No information as to the district’s position with regard to the acceptability of the XXXXXX curriculum has been provided and that curriculum is not in the record.

The student’s XXXXXXXXX teacher is not a certified special education teacher but is New York State certified as an elementary and secondary XXXXXXX teacher and previously taught XXXXXXXXXXXXXX in public schools. (T.528-529, 542) The course follows the Common Core curriculum and is geared to taking and passing the XXXXXXXXXXXXX Regents. (T. 535) The student was assessed with oral and verbal testing. (T. 535)

The district asserts that the teacher was not appropriately qualified and lacked sufficient knowledge of the student’s educational needs. It asserts that he had obtained no information from the student’s former or current teachers, and that he had not seen any evaluations or reports but for the IEP which was received subsequent to course commencement and knew little about the student before he started working with him. (T. 544, 555) It also claims that the program was not appropriately individualized in various aspects and that the setting is not the least restrictive environment for the student because it is provided one to one. (Ex. III) The district has not asserted claims regarding the testimony that XXXXXX follows New York State curriculum in its XXXXXXX course.

The evidence shows, however, that the teacher was aware the student had a XXXXXXXX disability and consulted with the student’s XXXXXXXXXXX teacher prior to commencing instruction and received the IEP within a few sessions. (T. 544,

573) Training in one to one instruction was provided by XXXXXX and the teacher had teaching experience as the general education teacher in an inclusion class. (T. 561 593594, 603-604) The teacher testified as to the student’s difficulties XXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and to

how he addressed them and assessed the student. (T. 530-535, 540, Exs. S, JJ) These were issues, needs and strategies noted in the IEP and other evaluative material and consistent with the experiences and practice of the district’s teachers. The one to one instructional model allowed these issues to be addressed as necessary for this student. The student passed the courses with grades of demonstrating progress. (T. 536, Ex. BBB)

With regard to the claim that the program provided was not appropriately individualized I note that the district had proposed a mainstream program with a mainstream curriculum albeit with extra support. The XXXXXXX program contemplated that 30 sessions was appropriate for a typically developing student and included, as discussed below, provision for additional sessions to meet the goal of covering the curriculum that differed for students depending on their individual need. (T. 568) The 1:1 setting provided opportunities XXXXXXXXX as this student needed them and the content was presented in accordance with his needs.

I give no weight to the district’s claims based upon LRE since this program was only a few sessions per week and the student’s school day was in the district’s high school.

The student commenced a XXXXXXXXXXXXXXXX program on December 8, 2015, completed the first course in May 2016 and concluded the second course on October 3, 2016, substantially after the originally contemplated date for completion, with a grades of for both semesters. (T. 530, 536, 545-546, 1765, Ex. BBB) I note that the student was in a 7 week XXXXXX residential program which would have affected his availability for XXXXX classes. The teacher testified that to complete the first semester the student required an additional 16 sessions for a total of 46. (T. 536) No information with regard to the number of sessions necessary to complete the second semester has been provided and the evidence does not include any information concerning how, if at all, the student’s disability affected instructional needs for that part of the course. Further, although reimbursement for travel cost has been asserted as a claim, no information concerning such costs, if any, has been provided.

I conclude that the parents have met their burden to establish that the unilaterally provided XXXXXXXX services were appropriate. Reimbursement for the entirety of the program provided in the first semester (30 sessions plus 16) and the base program for the second semester (30 sessions) will be ordered to be paid by the district subject to proof of payment by the parents.

B) XXXXXXXXXX

Although reimbursement for this program has been denied, I consider the appropriateness of the parents’ program

The sole XXXXXXXXXXXXX witness was the Executive Director of XXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXX Program. (T. 1501) He was informed about the student’s progress and issues through meetings and emails from the staff and a scheduled family/staff meeting midway through the program and through review of his IEP and other evaluative material prior to admission and prior to the family meeting. (T. 1511-1512, 1537) Credible evidence in this matter shows that:

The XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX is a U.S. Department of Education approved Comprehensive Transition and Postsecondary Program. (T. 1506, 1565Exs. OO, WW) The student attended its XXXXXXXXXXX program which is a 7 week summer program for admission to which IEPs, evaluations are required. (T. 1506, 1536) Its curriculum has evolved over time but its core value XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and the program has operated for Case No. 94563 some 30 years. (T. 1563-1564) Other year long XXXXXXXXXXXXXXXXX Program offerings, include students taking college courses who require more support than the school’s disabilities department can provide. (T. 1504-1505)

Summer program students live on campus, take classes and work on job sites with job coaches for 4 days each week. (T. 1503) They do not receive an XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX(T. 1508-1509, Ex. PP) Individual XXXXXXXXXXXXXXXXXXXXX coaches are provided. (T. 1508, 1519) There was also a residence advisor who checked the student’s room regularly to ensure compliance with residence rules with regard to XXXXX skills.

(T. 1519)

The summer 2016 program had some 32 students and included some students who were college bound but the significant majority were going directly into the workforce after high school and some were alternate assessment students. (T. 1506, 1533) Students were not grouped in classes based upon academic or functional skills but rather on an evaluation of social compatibility and skill levels in XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX. (T. 1538-1539, 1560-1561, 1572-1573) A majority of the students have a diagnosis XXXXXXXXXXXXXXXXX. (T. 1532) The student worked in small groups and individually with different instructors, including 2 certified special education teachers. (T. 1545-1547) The program was individualized and the coaches and residence advisor have at least one scheduled session with each student every week but work on a more frequent basis with the students who require it. (T. 1509, 1519, 1521, 1560-1561) There is an initial assessment of a student’sXXXXXXXXXXXXXXXXXXXXXXXXX.

(T. 1551)

The student struggled with issues

XXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXX (T. 1512-1513, 1522-1523) Issues at the job site and in the classes were addressed by the coaches immediately and followed up later. Strategies utilized XXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXX. (T. 1515, 1522, 1657-1658)

The student progressed in varying degrees with regard to XXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXX. (T. 1515, 1524, 1527-1529, Exs. UU, VV)

Nevertheless it was acknowledged that the student required practice and supervision . (T. 1528, Ex. U)

The progress claimed is supported by the testimony of Dr.XXXXXXX who observed the student at home and school earlier in the year and then conducted a limited observation at XXXXXX and spoke with staff. (T. 1638, 1640) She stated that progress

in ability to XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX XXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX had been reported to her by staff who worked with XXXX. (T. 1644, 1646, 1657-1658, 1673, 1676-1677) Those reports were consistent with Dr. XXXXXXXXXXXX.

The parent credibly testified as to progress with regard to necessary XXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and

how it related to XXX postsecondary goals. (T. 1742-1743, 1734-1736)

The district asserts that the program was not appropriate for this student. It notes that the program provided only vocational and transitional services and claims that therefore it did not confer educational benefits. It asserts that the student was not appropriately grouped because the bulk of the students were at significantly different academic levels and possibly of significantly different ages with different career goals and notes that it was acknowledged that cognitive levels are not given great weight. It claims that the program was not adequately individualized. The district also claims that a residential program was not the least restrictive environment for this student that this residential program did not provide properly qualified staff. (Ex. III)

I give no weight to the claim that the program did not confer educational benefits. It is undisputed that it was not intended to and did not confer academic benefits. However, this student’s difficulties, XXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. These were all areas the district acknowledged were problems and was attempting to address through various XXXXXXXXXXXXXXXXXXXXXXXXXXXXX as part of the student’s educational program. Further the job, although not requiring a high level of academic skills was challenging for this student because, the evidence shows, it did require the skillsXXXX lacked and which the district acknowledged XXXX needed for success in college. The student had difficulty with and the program addressed in the job it provided

XXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

. These were, in general, the areas the district has acknowledged need to be addressed. (Exs. 23, 24, 62, 66)

With regard to the objection to a residential program, the students do not simply live in the residence but are overseen there by both a XXXXXXXXXXXXXXXXXXX.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXX The program is to develop skills, including XXXXXXXL, that are necessary in adult life and important in class, at work and in the community and the combination of those areas is considered necessary to appropriate improvement in this program. (T. 1561-1566)

The limited success with regard to XXXXXXXXXXX is unsurprising in the short time provided and in view of the parent’s credible testimony concerning extensive XXXXX skill deficits. Further, it is well established that progress is but one factor in a determination of the appropriateness of a parental placement.

I find that the parents have met their burden to establish that the program they provided was reasonably calculated to lead to meaningful progress.

Prong 3

The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y.

2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs.

A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14.

With regard to XXXXXXXX the district asserts that the parents never intended to enroll the student in the district’s XXXXXX class and that their refusal to permit the student to attend the XXXXXXX class at the beginning of the school year was unreasonable and denied the district the opportunity to implement its recommendations. The district notes that at the time of the refusal of permission the student was in the course of an program at XXXXXXX and asserts that the desire to continue that was the reason for the rejection of the district’s program. (Ex. III)

However, I have found that the district’s proposed class was not appropriate. Further, the evidence shows that: the parents acted promptly after receipt and consideration of the PWN which noted that a XXXXXXXX disability was indicated and I conclude that the parents were not dilatory; they participated in all reviews and promptly notified the district of their concerns; they consented to all evaluations requested by the district. Although there was a delay in the district’s receipt of consent to evaluations requested by the parents I have not found that there was willful refusal and note that that was subsequent to the determination to remove the student from the district’s proposed XXXXXXXXX class. Finally, in this matter they provided timely notice that private programming would be provided and that district reimbursement would be sought. I find no basis for a determination that reimbursement for XXXXXXXX should be denied or limited on equitable grounds.

ORDER

The district shall promptly reimburse the parents in the amount of for the first semester (46 sessions) geometry course at XXXXXXXand for the second semester (30 sessions) XXXXXXXXX course at XXXXXXXX upon, at its option, receipt of satisfactory evidence that payments by the parents were made and that the student attended for the specified number of sessions.

Dated: February 21, 2017

______________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b))

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

EXHIBITS

DISTRICT

1 XXXXXXXXXXXXXXXX, 11/9/2013, 7 pgs. 2 IEP, 11/14/2013, 12 pgs. 3 Prior Written Notice, 11/14/2013, 3 pgs. 4 IEP, 7/3/2014, 12 pgs. 5 Prior Written Notice, 8/27/2014, 3 pgs. 6 IEP, 9/3/2014, 12 pgs. 7 Psychological Report XXXXXXXXXX, 5/2015, 5 pgs. 8 Kaufman Achievement Test, 5/12/2015, 3 pgs. 9 Evaluation, 5/13/2015, 10 pgs. 10 IEP Attendance Sheet, 6/4/2015, 1 pg. 11 IEP, 6/4/2015, 12 pgs. 12 Student Observation Report (XXXXX 2014-2016), 5/5/2015, 1 pg. 13 Prior Written Notice, 6/4/2015, 3 pgs. 14 Level I Assessment Form, no date, 6 pgs. 15 Level II Vocational Assessment, 6/15/2015, 2 pgs. 16 Career Clusters Interest Survey, 6/15/2015, 6 pgs. 17 Progress Report, 2014/2015 school year, 3 pgs. 18 Email with attachment, 6/24/2015, 10 pgs. 19 Email Correspondence, 9/1/2015, 1 pg. 20 Student Schedule, 2015/2016 school year, 2 pgs. 21 IEP with Attendance Sheet, 9/24/2015, 14 pgs. 22 Prior Written Notices, 9/24/2015, 5 pgs. 23 XXXXXXXXXXXXXX; 10/29/2015, 8 pgs.

24 XXXXXXXXXXXXXXXXXXXX, 10/29/2015, 7 pgs. 25 Progress Report, 11/1/2015, 1 pg. 26 Transcript of Grades, no date, 1 pg. 27 Email correspondence, 12/21/2015, 1 pg. 28 Email correspondence, 1/25/2016, 1 pg. 29 XXXXXXXXXXXXXXXXXXXXXXXXXX, 2/2/2016, 17 pgs. 30 Answer to Due Process Complaint, 12/9/2015, 2 pgs. 31 Answer to Amended Due Process Complaint, 2/12/2016, 2 pgs. 32 Report Card-11th grade, 7/14/2016, 1 pg. 33-35 Marked for ID ONLY 36 Email XXXXXXXXXXX to Parents & Others, 10/6/2015, 2 pgs. 37 Marked for ID ONLY 38 Level I Assessment (Student Questionnaire), 2/16/2011, 4 pgs. 39 Level I Assessment (Teacher Assessment), 2/7/2011, 2 pgs. 40 Level I Assessment (Student Questionnaire), 3/7/2012, 4 pgs. 41 Level I Assessment (Teacher Assessment), 6/9/2012, 2 pgs. 42 Level I Assessment (Teacher Assessment), 4/10/2013, 2 pgs. 43 Level I Assessment (Student Questionnaire),1/25/2013, 4 pgs. 44 Level I Assessment (Teacher Assessment), 2013/2014, 2 pgs. 45 Level I Assessment (Parent Questionnaire), 2014/2015, 3 pgs. 46 Level I Assessment (Student Questionnaire), 1/15/2015, 4 pgs. 47 Level I Assessment (Teacher Assessment), 6/2015, 2 pgs. 48 Level I Assessment (Student Questionnaire), 11/12/2015, 4 pgs. 49 Level I Assessment (Teacher Assessment), 2015/2016, 2 pgs. 50 Achieve Beyond Report, 1/26/2015, 2 pgs. 51 Handwritten Notes, 3/25/2015, 1 pg. 52 Aviator Assessment Report-Level II Assessment, 6/15/2015, 9 pgs. 53 Memo from XXXXXXXXXXXXXXXXXXXXXXXX , 6/17/2015, 1 pg. 54 Achieve Beyond Report, 6/23/12015, 2 pgs. 55 Email from Ms. XXXXXXXXXXXX to Mother, 9/21/2015, 1 pg.

56 Email from Ms. XXXXXXXX to Mother, 10/6/2015, 2 pgs. 57 Note by XXXXXXXX, 10/23/2015/1 pg. 58 Letter from Ms. XXXXXXXX to Parents, 11/6/2015, 2 pgs. 59 Letter from XXXXXXXXX to Mother, 11/19/2015,1 pg. 60 Letter from XXXXXXXXXXX to Parents, 12/2/2015, 1 pgs. 61 Achieve Beyond Report, 1/18/2016, 2 pgs. 62 IEP, 3/14/2016, 13 pgs. 63 Prior Written Notice, 3/14/2016, 3 pgs. 64 Email from XXXXXXXXXXXX to Mother, 3/17/2016, 1 pg. 65 Achieve Beyond Report, 4/8/2016, 1 pg. 66 LST Report, 4/29/2016, 4 pgs. 67 Email from Ms. XXXXXXX to Mother, 5/3/2016, 1 pg. 68 Career Plan, no date, 6 pgs. 69 IEP, 5/17/2016, 14 pgs. 70 Prior Written Notice, 5/17. 2016, 3 pgs. 71 Application for VR Services, 6/10/2016, 6 pgs. 72 Email correspondence re ACCES-VR application, 6/16/2016, 3 pgs.

PARENTS

A Demand for Due Process, 12/1/2015, 6 pgs. B Amended Demand for Due Process, 2/8/2016, 7 pgs. C IEP, 6/4/2015, 12 pgs. (Dupl. Ex. 11) D IEP, 3/14/2016, 13 pgs. (Dupl. Ex. 21) E IEP, 3/14/2016, 13 pgs. (Dupl. Ex. 62)

F XXXXXXXXXXXXXXXXXXXXXXX, 2/2/2016, 18 pgs. (Dupl. Ex. 29)

G XXXXXXXXXXXXXX, 10/20/2015, 7 pgs.(Dupl. Ex. 24 H Behavior Support Plan (Dragone), 3/14/2016, 7 pgs. I XXXXXXXXXXXXXXXX Evaluation (XXXXXXXXXXX), 3/22/2016, 21 pgs.

J Progress for Goals and Objectives 2013-2014, 7 pgs. K District High School Letter-Not Passing XXXX, 6/26/2014, 1 pg. L Parent Assessment Reports, generated 6/27/2014, 2 pgs. \ M Student Transcript, 1/29/2016, 3 pgs. N Student Report Cards, 2014-2015, 3 pgs. O Tuition Contract Semester 1- XXXXXX, 12/7/2015, 2 pgs. P Tuition Contract Semester 2- XXXXXXX, 1 pg. Q XXXXXX Course Completion Letter- XXXXXXXXX, 8/31/2015, 1 pg. R XXXXXXXXX Course Completion Letter-XXXXXXX, 10/14/2015, 2 pgs. S Daily Progress Notes-XXXXXX, Jan-Apr 2016, 16 pgs. T Student’s PSAT Score Report, Fall 2015, 8 pgs. U PSAT Practice Score, 5/20/2015, 8 pgs. V Student’s XXXXXXX Test-XXXXXXX August 2015, 2 pgs. W Student’s XXXX Exams XXXXXXXXXXX (District Class), 2014-2015, 14 pgs. X Psychological Report (XXXXXXX), May 2015, 5 pgs. (Dupl. Ex. 7) Y Email from Mother to District re scheduling XXXXX meeting, 6/15/2015, 2 pgs. Z Emails between Mother and District re 2015-2016 IEP, 8/6-24/2015, 3 pgs. AA Email from Mother to District re CSE meeting scheduling, 11/19/2015, 2 pgs. BB Email from Mother to District re XXXX checklist, 12/1/2015, 1 pg. CC Emails between Mother and District re XXXXX Checklist, 12/3/2015, 2 pgs. DD Email from Mother to District re Evaluations, 1/22/2016, 2 pgs. EE Email from Mother to District re Consent Forms, 1 pg. FF Emails between Mother and District re Evals & Consent, 1/22-27/2016, 3 pgs. GG Emails between Mother and District re IEP concerns, 10/27-28/2015, 4 pgs. HH Emails between Mother and XXXXX re XXXX & point review, 5/28/2015, 3 pgs. II Emails between Mother and XXXXXXXXX & Indep Eval, 1/6-7/2016, 9 pgs. JJ Daily Progress Notes-XXXXXXX, April-May 2016, 14 pgs. KK Demand for Due Process (Case No. 97854) , 7/1/2016, 4 pgs. LL Prior Written Notice, 5/17/2016, 3 pgs. (Dupl. Ex. 70)

MM IEP, 5/18/2016, 13 pgs. (Dupl. Ex. 69) NN Parent letter to District, 5/26/2016, 2 pgs. OO XXXXXXXXXXXXX Acceptance Letter, 6/10/2016, 1 pg. PP XXXXXXXXXXXXX Summer Calendar, Summer 2016, 1 pg. QQ XXXXXXXXXXXXXXX Student Enroll. Agree., Summer 2016, 1pg. RR Letter fromXXXXX, Dir. of XXXXXX, XXXXX, May 2016, 1 pg. SS Student Code of Conduct, 6/15/2016, 2 pgs. TT Proof of Tuition Payment, 6/22/2016, 1 pg. UU Letter from Dir. XXXXXX & End of Summer Progress Rpts, 8/15/2016, 11 pgs. VV Email between Mother and XXXX re Internship, 7/27/2016, 2 pgs. WW Email between Mother and XXXX re XXXXXXX, 8/5/2016, 1 pg. XX Email between Mother and XXXX re Culture and Humanities, 8/8/2016, 2 pgs. YY Letter from Mother to Ms. XXXXXX, 2 pgs. ZZ Emails between Mother and Ms. XXXXXXXX Sept-Oct 2015, 1 pg. AAA Email from Mother to District re XXXXXXXXXXXX, 10/11/2016 1 pg. BBB Email from XXXXXXXXX re Completion of XXXXXXXX, 10/3/2016, 1 pg.

IMPARTIAL HEARING OFFICER

I Order of Consolidation, July 25, 2016 II Subpoenas III District Closing Memorandum IV Parents Closing Memorandum V Emails concerning record close and decision issuance

Footnotes

[1] Exhibits identified by letter are parents exhibits. Exhibits identified by number are district exhibits. Exhibits identified by Roman numeral italics are hearing officer exhibits. Transcript references are identified as T.--.

[2] Complaint 1 claims not addressed in the hearing or the parent’s closing memorandum have been deemed abandoned. With regard to relief claims in Complaint 1, the parents also sought the development of a XXXXX and that the district conduct a neuropsychological and assistive technology (“AT”) evaluation. As discussed herein, the neurological and AT evaluations had been agreed upon prior to the filing of the initial complaint in this matter and have since been conducted. A proposed XXXXXX was in dispute at the time of the filing of the initial hearing request and a XXXXXX was created prior to the commencement of the hearing.

[3] XXXXXXX lab classes were not considered as a special education component and therefore were not placed on the IEP. Students without IEPs could also be included. (T. 238)

[6] Consent was received shortly after the review and the Level II Assessment was completed on June 15, 2015. (Exs. 15, 16)

[7] Ultimately an aide for transitions was provided until March 2016 when it was removed by the CSE. (Exs, 62, 63)

[11] ACCESS-VR is a State Education Department agency which provides vocational services to adults and which has recently permitted certain high school students to apply for services. (T. 1267)

[12] With regard to adequacy of an aide, the testimony that there is no certification for a XXXXXXX is persuasive and has not been contested. (T. 1305)

Impartial Hearing Decision

Procedural History