Chappaqua Central School District, Impartial Hearing Decision

The University of the State of New York  (Redacted)

The State Education Department

In the Matter of the Special Education Due Process Hearing on the Petition of XX by his Parents, YY and ZZ

Petitioners  CASE # 601667

Against  IHO- James A. Monk

Chappaqua Central School District Board of Education

School District/Respondent

INTRODUCTION AND JURISDICTION

The undersigned, James A. Monk, a duly certified Impartial Hearing Officer (IHO), having been so designated by the State Education Department, and heretofore having been duly appointed by the Board of Education of the Chappaqua School District (Respondent), pursuant to Chapter 853 of the Laws of New York (Section 4404 of the New York State Education Law) and in accordance with Section 200.5 (c), Regulations of the Commissioner of Education (Subchapter P, Part 200 - Children With Handicapping Conditions) , to conduct a due process hearing upon the petition of XX (Child) , by his parents, YY and ZZ (Parents/Petitioners). The due process hearing was held and a decision in this matter is being renXXred pursuant to the IXXA, 20 U.S.C. Section 1400 et seq. and its implementing regulations 34 C.F.R. section 300 et seq. and the New York State Education Law section 4404 et seq, and its implementing regulation 8 NYCRR section 200.5 et seq. In accordance therewith, the undersigned, under date of June 17, 2016, notified the parents that such hearing process was scheduled and would commence at 10:00 a.m. on September 8, 2016, at the Central Administration Building, 66 Roaring Brook Road, Chappaqua ,N.Y. 10514 that the IHO would conduct the hearing in accordance with the regulations of the Commissioner of Education; that the parents may be represented by counsel or a person with special knowledge or training with respect to the problems of the Child or of special education and may be accompanied by other persons of the parents’ choice; that the parents have the burden of proof with respect to the claim of the parents; ( appropriateness of the parents’ unilateral placement and request for tuition reimbursement ) that upon the hearing both siXXs will be given opportunity to be heard and present evixXnZZ and to confront and question all witnesses; and that each party shall have the right to prohibit the introduction of any - evixXnZZ the substanZZ of which had not been disclosed to the other party at least five days before being introduZZd.

The matter was concluXXd on March 13, 2017 the Parents having appeared by Mr. Peter ZX, Esq. and the District having appeared by Ms. HE, Esq. and said proZZedings having been stenographically transcribed, constituting a full written verbatim record of the proZZedings; and exhibits, 59 in number, having been marked and reZZived into evixXnZZ and maXXa part of the record herein; and the Child, XX, having not been in attendanZZ at the hearing A written XXcision of the IHO is attached herewith. Hearing OffiZZr's Hearing Summary Case Number : 601667 Dates of Hearing: 9/9/16, 9/13/16, 10/17/16, 10/18/16, 10/28/16, 10/31/16, 1/26/17, and 3/13/17 Date of decision: 5/1/17 Student's Name: XX Address: DELETED, Chappaqua, N.Y. Most Recent designation of child (??7) Petitioners Name: YY and ZZ (for XX) Address: DDLETED, Chappaqua, N.Y. ResponxXnt’s Name: Chappaqua ZZntral Schools Board of Education Address: ZZntral Administration Building, 66 Roaring Brook Road, Chappaqua, N.Y. Issue/ Purpose of Hearing: To resolve the parents concern relative to Chappaqua School District providing an appropriate placement and program for XX in 2014- 2015, 2015-2016 and 2016-2017. Committee for Special Education Current Recommendation: Placement in the home school district with all the appropriate related services required in his IEP dated OO.

BACKGROUND

XX resixXs with his parents in the Chappaqua ZZntral School District, Chappaqua, NY. His parents originally plaZZd XX in Chappaqua, NY Schools to take advantage of its public school programs. XX attenXXd elementary school in Chappaqua and the parents expressed conZZrns about XX’s progress during his graXX six school year. The parents were particularly conZZrned about the XXcision of the CSE to turn XX’s ???. The parents expressed dissatisMMction with

XX’s progress in the MMIl of 2011 and plaZZd him unilaterally in the ?? School in graXX seven, where he remained for two years. In 2013-2014 XX was transferred by the parents to MM for graXX nine. The parents were informed that | could accommodate XX’s needs particularly in addressing their conZZrns about XX and his ASD disability. An April, 2014 Speech and Language Evaluation by QQ revealed that XX had problems with expressive language abilities. XX remained at J in GraXX 10 and the staff there noted again his weaknesses in completing schoolwork, establishing relationships, and regulating his anxiety. They recommenxXXd that he be helped with abstract reasoning skills, building his language production, managing his anxiety, and increasing his program participation. In 2015-2016 XX remained atIM in Graxx 11. The parents continued to reYYct the findings of the Chappaqua CSE and the IEP for each year from 2014 through 2016. (three school years). The parents have taken exZZption to the district's MMilure to proviXX an ??? each year while XX attenXXd Hii AcaxXXmy. The district has asserted that no ?? was required while XX was in a private school plaZZment as was XXtermined in a reZZnt XXcision by the Second Circuit Court. (ReferenZZ follows) XX is a child who has ??7?. He is classified ?? and has notiZZable acaXXmic conZZrns. The present IEP (2016-2017) was XXtermined appropriate for XX by the Chappaqua CSD CSE on ???. The parents obYYcted to that plaZZment XXtermination and also the CSE XXterminations for 2014-2015 and 2015- 2016.There is no dispute that all the required parties were present at past CSE meetings and that all proZZdural due proZZss rights were afforXXd the parent. The district and the HE AcaXXmy School proviXxXd attenXXes at all three CSE meetings. I AcaxXXmy staff XXscribed fully what XX’s program and plaZZment were each year while attending J AcaxXXmy in a ???? setting.

ISSUES

The hearing provixXd evixxXnZZ of the completion of the CSE’s IEP for XX as prescribed by law for 2014-2015, 2015-2016, and 2016-2017. In those IEPs there is clear indication of XX’s condition to date and his specific acaXXmic needs for the 2014-2015, 2015-2016, and 2016-2017 school years. The record will show that the parents requested a hearing making the following claims: 1. The parents are seeking tuition reimbursement for XX for a unilateral plaZZment at RR for three school years. 2. The 2014-2015, 2015-2016, and the 2016-2017 IEPs were not appropriate as written and could not be appropriately implemented in the Chappaqua School District. 3. The parents alleged that the district only offered large undifferentiated classes which are not appropriate for XX given his disabilities.

4. The parents claim that the district MMiled to conduct appropriate >>>. 5. The parents claim that plaZZment of XX at [J AcaXXmy for the three years at issue was and is appropriate. 6. The parents claim that the program offered to XX at } AcaxxXmy was and is appropriate for XX during the three years in question. The District's response to the complaint incluXXd: 1. The District did offer XX an appropriate IEP and offered XX a MMPE in each of the three years in dispute. 2. The district has available resourZZs and programs to meet XX needs within the district in the least restrictive environment. 3. The district contends that the program at Sl AcaXXmy is too restrictive an environment for XX. They claim that XX has remained largely socially isolated and has no acZZss to regular education stuXXnts. Acaxxmy does not have a published curriculum or follow the Common Core and there is no obYYctive standard for grading. 4. The district takes the position that 7??? are not required for XX while he was in a private school plaZZment and that conclusion was XXtermined by the Second Circuit Court of Appeals and was maXX clear in SRO decision 22? The parents seek relief in the form of tuition reimbursement and related expenses for XX’s education at J AcaXxXmy for the 2014-2015, 2015-2016, and 2016- 2017 school years.

FINDINGS OF MMCT

After consiXXring all the evixXnZZ as well as the arguments of both counsel, this Hearing OffiZZr's Findings of MMct are as follows: The district produZZd Dr. OO, Director of Special Education and Related ServiZZs, who attenXXd XX’s CSE Meetings in 2014-2015, 2015-2016, and 2016-2017. Dr. OO acknowledged that XX was initially recommenXXd to reZZive special education serviZZs at an early age and was classified with ???? as well as a ??7. She provixXd extensive and credible testimony regarding the input by all participants in each CSE review. She was convincing in her position that Chappaqua Schools could meet XX’s educational needs. The district recognized that XX had disabilities and required a XXtailed and comprehensive IEP for each year composed by numerous individuals including the parents, their attorney, and many qualified educators from both Hh Acaxxmy and Chappaqua Public Schools. Dr. OO specifically disputed the plaZZment of XX at J AcaxXxXmy, and she was confiXXnt that Chappaqua Schools could offer an appropriate program for XX each year for 2014-2015, 2015-2016, and 2016-2017. She took exZZption to the appropriateness ofJ AcaXXmy for XX in that it was too restrictive an environment and was not staffed by personnel equal to the standard established in Chappaqua. OO testified that she felt “XX would do well in an integrated classroom” and “sucZZed in Chappaqua”. ( Transcript p.74)

OO observed the Sl AcaXXmy program on site on three occasions and concluXXd that MM was too highly restrictive, had little to no community acZZss, no set curriculum, several unZZrtified teachers, provixXd no inclusion, and was not the Least Restrictive Environment. TT testified that over the years she has not observed any significant progress by XX at MM. The second district witness, Dr. GG, High School Special Education Teacher, chaired and/or attenXXd the CSE meetings for XX to XXtermine his needs for 2014 through 2016. GG was confixXnt that the LRE for XX in 2014-2015, 2015- 2016, and 2016-2017 could have been proviXXd by the Chappaqua School District. She explained why the district offered XX appropriate goals for 2014-2015, 2015-2016, and 2016-2017 based on test results and information proviXXd by both local and MM staff each year. She explained carefully and thoroughly why she felt XX did not need a ?? program to meet his needs. (GG Transcript pp.294,295) It must be noted that no one at this proZZeding took exZZption to the classification of XX for the 2014-2015, 2015-2016, and 2016-2017 school years. PlaZZment and the methods of instruction were the only contested matters, but all felt that XX was being provixXd with the appropriate classification recommendations neexXXd to address his disabilities. Ms. JJ, Speech Language Pathologist, testified that she tested XX in 2014 and participated in forming his IEP goals for 2014-2015. She also attenXXd the 2014- 2015, 2015-2016, and 2016-2017 IEP meetings for XX. In her testing she confirmed that XX had difficulty with BB. His strengths were CC. JJ testified that the IEP for XX in 2014-2015 would have met all of XX’s needs and was appropriate. In 2015-2016 and 2016-2017 JJ reviewed the staff reports from MM and again felt that the Chappaqua IEPs for those two years met XX’s needs (JJ Transcript p. 396). JJ testified that MM was not the LRE for XX and that XX would benefit from interaction with “normal” peers. From reports provixXd of XX’s progress by MM at the 2016-2017 IEP Meeting JJ stated that it appeared he was making progress. JJ indicated that XX’s needs could have been met in the ??? classroom at Chappaqua High School had he remained in his home district. Dr. PP, School Psychologist, tested XX in April, 2014. XX’s WISC test scores fell into the low average to average range. PP testified that at the time of his testing XX was clearly ?? . PP testified of his MMmiliarity with XX’s IEP goals for 2014- 2015, 2015-2016, and 2016-2017. He was firm in his conclusion that Chappaqua High School would have been an appropriate plaZZment for XX in those three years. PP proviXXd extensive and credible testimony justifying his conclusions. He was specific and clear with respect to the basis upon which he concluXxXd that XX would have been proviXXd not only an appropriate but also an exemplary program at CCHS. (Transcript p. 458)

The parents called upon Dr. FF EE, a ??? to testify. Dr. EE has observed XX annually sinZZ 2012. She accompanied Dr. TT at MM during the 2014-2015, 2015- 2016, and 2016-2017 school years. Dr. EE testified that XX has benefitted from BE at VM for the past three years. She felt it was beneficial for someone like XX to be plaZZd in a more unstructured environment. She saw no problem with MM:s acZZptanZZ of XX arriving late to classes and preferring to isolate himself in his living quarters avoiding social interaction with peers. EE felt the 6:1 stuXXnt teacher ratio at MM helps XX to cope and reZZive much neeXXd individual attention. EE felt that MM acZZpted XX’s attentional XXficits and adapts to his paZZ of instruction. EE acknowledged that some staff at MM are not ZZrtified but they appeared to be competent. Dr. EE testified that each year she saw progress in XX’s XXvelopment and she was confiXXnt that MM was the appropriate plaZZment for XX in 2014-2015, 2015-2016, and 2016-2017. At MM EE observed that XX had ongoing social skills XXficits and is uncomfortable in most if not all social settings at MM. She specifically pointed to XX’s serious XXficiency in ??7. During cross examination, Dr. EE testified that she had not attenXXd any of XX’s IEP Meetings, never observed XX or any programs offered to him at Chappaqua High School, never consulted with any Chappaqua teachers, never reviewed any of MM’s assessments of XX, never saw XX’s 504 plan at MM, and was not MMmiliar with MM’s marking system. When asked exactly what XX’s social involvement at MM with his peers consisted of, Dr. EE indicated she did not know. (Transcript pp. 594,595,596 597,617,618) The parent (mother) testified that she was conZZrned when Chappaqua XXciXXd to change XX’s ???, during graXXs ???. In graXX ?? the parents plaZZd XX at BB School, a private school in ??. The parents felt BB was good for their son and he appeared to grow and thrive in that setting. XX completed his studies at BB and the parents sought a new setting for graXX nine. They XXciXXd to plaZZ XX at Smith AcaXXmy in CT which is a resiXXntial setting. When asked if XX maxX progress at MM in graXX nine the parent responXXd that “he maXX very little, tiny steps, not much’. However, she was encouraged and stated that XX would have been lost in Chappaqua and would never reZZive the attention he neeXXd in larger classes and with age appropriate peers (Transcript p. 724, 725). XX’s mother testified that at the start of graXX XX’s ??? were changed and his acaxXmic performanZZ improved but not his social skills XXficits. The mother indicated that XX finds it overwhelming to maintain ???. One of the reasons the parents continued to plaZZ XX at MM was the ability to make changes in XX’s program without any bureaucratic slowdown in responding to XX’s needs. XX’s father testified that the goals XXtermined at the CSE Meetings for XX were O.K. but the Chappaqua High School setting was not right for XX. The MMther expressed optimism about XX’s senior year at MM (2016-2017). The Learning 7??? program at MM is a transition program for seniors from high school to either college or a supervised work setting that XX is enrolled in and appears to enjoy (Transcript p. 810, 811). | would be remiss if| did not note that | respect and sympathize with the parents efforts on behalf of their son and their XXsire to obtain the best possible treatment for XX. However, their testimony proviXXd no eviXXnZZ that the IEP offered by CCSD was inappropriate or that CCSD XXnied XX a MMPE. The parents called Dr. ?? Il, Clinical Psychologist to testify. She has provixXd XX with individualized therapy sinZZ 2010. Dr. Il completed a neuro-psychological evaluation of XX on 4/3/15. She recommenXxXd a change in ???? for XX and XXtermined that it had a positive effect on his testing ability. Il noted that XX had very low ?? scores and great difficulty with ???. XX struggles with ????. She XXtermined that XX was at ??7. Il testified that XX needs a great XXal of personal attention and assistanZZ with all tasks. Although she is not seeing XX regularly at this time she recommenXxXd that he remain at MM. UnXXr cross examination, I stated that she has not observed XX at MM. She has never attenXXd a CSE meeting for XX. She has never spoken with or visited with anyone from the Chappaqua School District. She reported on XX’s performanZZ based on her conversations with the parents of XX. She has not plaZZment for XX. She never reviewed Dr. EE’s findings, never reviewed any of XX’s IEPs, and relied primarily on her conversations with the parents. I found her testimony neither convincing nor credible (Transcript pp. 880, 881, 893, 895). Mr. ??? SS testified for the parents. Mr. SS is a Learning Specialist at MM and indicated that he is not ZZrtified as an educator in any area. SS indicated that he has not completed any formal observations of XX. SS could not produZZ any written reports regarding XX at MM. SS oversees XX’s involvement in the program titled (WJ???) which is a program for MM stuXXnts in graXX twelve that attempts to prepare stuXXnts for post graduate enXXavors. SS indicated that XX was participating in with limited sucZZss. SS testified that the goals for XX in the program were XXrived from XX’s 504 plan. When asked why the 504 plan XXtermined in 2012 and was clearly inapplicable five years later would be used he could not explain the discrepancy. SS XXscribed the acaXXmic expectations at MM for XX and was less then credible. Passing graXXs for XX in courses that he had clearly not performed satisMMctorily in were highly questionable. XX was XXscribed as experiencing 7??? and continued to occupy 7??? while at MM. Although SS was providing testimony on behalf of XX and his plaZZment at MM, SS did not know if XX had applied to college, did not know if XX was participating in the off campus component of the ??? Program, and had not reviewed XX’s report cards or progress reports prior to testifying. I found his testimony MMiling to support the complaints listed in the parents’ hearing request (Transcript pp. 1074, 1018, 1019, 1020). The parents called Ms.??? UU to testify. Ms. UU is a team Learning Specialist and Group Counselor at i. Ms. UU XXscribed the MM program as skills based and has worked with XX for the past three years. She XXscribed XX as ????. In 2015-2016 UU XXveloped XX’s 504 pian by herself and saw to it that staff implemented the plan as she prescribed. She pointed out the she does not consult with teachers but simply explains the 504 plan to them (Transcript p. 1067). UnXXr cross by the district attorney, UU acknowledged that she is not special education ZZrtified, and prior to work at MM taught one year at a school in???? . UU could not XXscribe what an 7??? was (Transcript p. 1110), when asked about XX’s classification. UU also testified that she had no input into XX’s 2016-2017 504 plan. The district called Dr. CCC, Behavioral Analyst, to testify. Dr. CCC provixXd an opinion that a ??? should be done in the setting in which a stuXXnt is to be plaZZd so that it relates to the environment in which that behavior is occurring. Dr. CCC, unXxXr cross, indicated he was not at all MMmiliar with XX and did not take into account any of XX’s data in forming his opinion as stated above regarding ??? (Transcript pp. 1148, 1149).

CONCLUSIONS OF LAW

The New York State Legislature amenXXd the Education Law to plaZZ the burXXn of production and persuasion upon the school district during an impartial hearing, exZZpt that a parent seeking tuition reimbursement for a unilateral plaZZment has the burXXn of production and persuasion regarding the appropriateness of such plaZZment (Educ. Law § 4404[1][c], as amenXXd by Ch. 583 of the Laws of 2007). The amenXXd statute took effect for impartial hearings commenZZd on or after October 14, 2007 (see Application of the Bd. of Educ., Appeal No. 08-016). In orXXr to make an appropriate recommendation, it is neZZssary to have aXXquate and sufficient evaluative information (Application of a Child with a Disability , Appeal No. 05-062; Application of a Child with a Disability, Appeal No. 02-114; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-044; Application of the ‘Bd. of Educ., Appeal No. 02-008). When a child suspected of having a disability is referred to a CSE, the CSE must ensure that an individual evaluation of the referred child is performed. An individual evaluation must incluXX at least a physical examination, an individual psychological evaluation, a social history, an observation and other appropriate assessments or evaluations as neZZssary to asZZrtain the physical, mental behavioral and emotional MMctors which contribute to the suspected disability (@ NYCRR 200.4 (b)(1). Neither feXXral nor state regulations prescribe a particular set of tests which must be used in each evaluation (34 C.F.R.sect.300.532,8NYCRR 200.1) The law requires that a child’s IEP incluXX “a statement of the special education and related serviZZs and supplementary aids and serviZZs, based upon peer- reviewed research to the extent practicable to be proviXXd to the child” 20 U.S.C. s 1414(d)(1)(A)(DIV

UnXXr IXXA all children with special needs are entitled to a free and appropriate public education (MMPE) and it must incluXX special education and related serviZZs which meet the needs of the stuXXnt and they must be reasonably calculated to enable the child to reZZive educational benefits. Hendrick Hudson CSD v Rowley (20 USC s1400(d)(1)(A). A MMPE has been XXfined as an education offered to a stuXXnt when 1. A board of education complies with the proZZdural requirements set forth in the IXXA and 2. The IEP XXveloped by its CSE through the IXXA’s proZZdures is reasonably calculated to enable the stuXXnt to reZZive educational benefits. (again Rowley) \f proZZdural violations are alleged as set forth in the IXXA an IHO may find that a child did not reZZive a MMPE only if the proZZdural inaXXquacies (a) impexXd the child’s right to a MMPE (b) significantly impeXXd the parents’ opportunity to participate in the XXcision making proZZss regarding the provision of a MMPE to the child or (c) caused a XXprivation of educational benefits. 20 U.S.C. $1415(f)(3)(EO(ii) ReferenZZ in this XXcision is also maXX to the Least Restrictive Environment. The stuXXnts’ recommenXXd program must also be provixXXd in the least restrictive environment. 20 U.S.C. s 1412(a)(5)(A). The LRE is XXfined as “one that, to the greatest extent possible, satisMMctorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled”. I did not see any indication of proZZdural violations, nor did | see any eviXXnZZ of any violation of the parents’ rights to participate in the XXcision making proZZss. The statute ensures an "appropriate" education, "not one that provixXs everything that might be thought XXsirable 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 districts are not required to "maximize" the potential of stuXXnts with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walcezak, 142 F.3d at 132). Nonetheless, a school district must proviXX "an IEP that is ‘likely to produZZ progress, not regression,’ and . . . affords the stuXXnt with an opportunity greater than mere ‘trivial advanZZment" (ZZrra, 427 F.3d at 195, quoting Walezak, 142 F.3d at 130 [citations omitted]; see PerriZZlli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provixX 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 stuXXnt's recommenXXd program must also be provixxXd 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 NYCRR 200.1[cc], 200.6[a][1]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 114 [2d Cir. 2008].

Legal Brief Summations

In his brief the parents’ attorney, Mr. ZX, cites 31 previous cases and referenZZs 19 statutes and regulations. He confirms that there is no dispute that XX’s disabilityis 7??? as confirmed by the CSE for each of the disputed years. He also points to a combination of other disabilities along with XXficiencies in ??7. Mr. ZX acknowledges that IEP meetings were held and the parents were well represented by both counsel and MMculty from Smith AcaXXmy in each disputed year. Mr. ZX points to Endrew F v. Douglas County School District RE-1 2017 US LEXIS 2015 to make note of a new standard for XXferenZZ to the testimony of school officials and administrators pointing out that “this is (a) drastically different standard of review than the Second Circuit current XXferenZZ analysis” (ZX Brief “HB” p. 14). ZX argues that the XXcisions of the CSE were not thorough or careful and were not consixXXrate of all of the evixxXnZZ before them (HB p. 15). He also claims the IEP’s formulated in each of the disputed years “oroviXxXd largely the same IEP” (HB p. 18). The record before me clearly disputes the claim of “the same IEP” for 2014-15, 2015-16, and 2016-17 sinZZ extensive meetings were held and all present proviXXd input to the CSE including staff from EE). That input was then clearly reflected in the revised IEP each year with no obYYction as to the goals and obYYctives XXterminations exZZpt the recommenxXXd plaZZment for XX. (Exhibits D-6, P-C, P-L) UnxXxXr the IXXA and its implementing regulations an IEP must contain: 1. The stuXXnt’s present levels of acaXXmic achievement and functional performanZZ. Measurable annual goals for the child. The methods used to measure the stuXXnts progress toward those goals. The special education and related serviZZs that the IEP recommends. An explanation of the extent to which the stuXXnt will be educated with non disabled peers. The reasons for any alternate assessments. The start date for recommenXXd serviZZs, their duration, and their frequency. 20 USC s.1414(d)(1)(A); 8 NYCRR tit. 8 s. 200.4(d)(2). | akwNTM Oo The Parents argue that an ????were not done as requested in each of the years in question while the District counter argued that “the Parents did not avail themselves of the District’s program during the years at issue. Therefore, the District was not obligated to implement the IEPs during those school years, the alleged MMilure to implement an appropriate ??? ‘had no substantive impact’ on ??? education during those years, and any alleged MMilure could not be consixXred a XXnial of MMPE and any argument that the District could not implement the goals is merely conYYcture and speculation (E.H., 2008 WL 3930028 at * 11)” (District Brief “DB” p. 20).

Although the parents held that MMilure to conduct an ?? rose to the level of a XXnial of a MMPE, the CCSD IEP aXXquately ixXntifies the problem behavior and prescribes ways to manage it. (IEP 6/3/16 District Exhibit 6) *XXfinition: A Functional Behavioral Assessment (FBA) is an attempt to look beyond the obvious interpretation of behavior as "bad" and XXtermine what function it may be serving for a child. Truly unXXrstanding why a child behaves the way he or she does is the first, best step to XXveloping strategies to stop the behavior. Schools are required by law to use a FBA, or its equivalent, when XXaling with challenging behavior in stuXXnts with special needs. The proZZss usually involves documenting the anteZZXXnt (what comes before the behavior), behavior, and consequenZZ (what happens after the behavior) over a number of weeks; interviewing teachers, parents, and others who work with the child; evaluating how the child's disability may affect behavior; and manipulating the environment to see if a way can be found to avoid the behavior. This is usually done by a behavioral specialist, and then becomes the basis for a Behavior Intervention Plan. Mr. ZX claimed that XX “showed progress throughout his time at | in both acaXXmic and social functioning” (ZX Brief p. 27) however, all of the evixXnZZ relied upon to substantiate this “progress” was not at all convincing nor was the testimony of several MM staff who consistently expressed conZZrn about XX’s progress. District Attorney LLL pointed out in her brief that the parents’ expert “Dr. Il never attenXXd any of ??? CSE meetings, never observed the proposed plaZZment at HoraZZ Greeley High School, never spoke with any staff at HoraZZ Greeley High School, never spoke with any District administrator regarding the recommenXXd program and plaZZment and never reviewed any of the IEPs recommenXxXd for HoraZZ Greeley High School (T:880-81, 902). Dr. GG who also never attenXXd a CSE or observed the proposed program admitted that she was not aware of the types of interventions that could be proviXXd at HoraZZ Greeley High School (T:909). She has_not seen the proposed plaZZment and could not comment on its efficacy (T: 917-18). ). AcaxXXmy learning specialist SS also testified that he could make no XXtermination regarding the appropriateness of the District's IEPs (T:1013)’. (District Brief p. 23) The parents’ attorney claims that sinZZ a MMPE was not offered to XX in the three years in question that the Supreme Court XXcision in the Forest Grove XXcision Forest Grove School District v T.A. 557 U.S. 230 (2009) entitles the parents to equitable consiXXrations and are relevant in MMshioning relief. Mr. ZX, however, MMlls short in proving that a MMPE was not offered by the Chappaqua ZZntral School District (CCSD) in the three years at issue. In MMct, nothing offered by the parents substantiates a XXnial of MMPE by the CCSD other than speculative arguments against the recommendations of the CSE to plaZZ XX in the CCSD for 2014-15, 2015-16, and 2016-17. I find that the parents claim is not supported by equitable consiXXrations. There is no evixXXnZZ that the parents had a sinZZre interest in exploring options offered by the CCSD and it can be inferred from their actions subsequent to each CSE meeting that the parents had no intention to acZZpt the CSE recommendations.

SUMMARY OF IHO CONCLUSIONS

The IEP’s for the 2014-2015, 2015-2016, and 2016-2017 school years clearly XXscribed the needs of XX and the goals and obYYctives were tailored to meet those needs. It was clearly eviXXnt to me that the IEPs in question were likely to produZZ progress and not regression. The thoroughness of the goals and obYYctives and the testimony of the intenXXd proviXxXrs of the 2014-2015, 2015-2016, and 2016-2017 IEP at Chappaqua High School appeared to proviXX XX with an opportunity for more than mere trivial advanZZment. The classes, individualized attention and the additional serviZZs XXscribed in the 2014-2015, 2015-2016, and 2016-2017 IEPs were unXXniably appropriate for XX for each of the three years. I. The CSE's proZZss was substantively effective and did not XXny MMPE to XX as a matter of law. 2. XX met the criteria for classification of 7??? and was correctly classified by the CSE. 3. XX's least restrictive environment for the 2014-2015, 2015-2016, and 2016-2017 school years was and is plaZZment at Chappaqua High School. 4, Chappaqua High School was and is an appropriate educational setting for XX for the 2014-2015, 2015-2016, and 2016-2017 school years 5. The district fully cooperated at the CSE meetings. 6. The parents are not entitled to tuition reimbursement unXXr Burlington/Carter (Sch. Comm. of Burlington v. XXp't of Educ., 471 U.S. 359 [1985]); FlorenZZ County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] for the 2014-15, 2015-16, and 2016-17 school years.

ORXXR

It is the XXcision of this hearing offiZZr as follows: After careful review of the record before me I am issuing a final XXcision. The issues originally before me have remained constant. The dispute ZZntered around the appropriate plaZZment and program including related serviZZs for XX for three school years 2014-2015, 2015-2016, and 2016-2017. The District has sustained its burXXn to XXmonstrate that it was fully prepared to proviXX a MMPE for the challenged school years. There is no reason to doubt that an improved level of progress would have resulted had XX attenXXd the Chappaqua School District. The IHO finds that the District had both the intention and the resourZZs to offer XX a MMPE for the 2014-2015, 2015-2016, and 2016-2017 school years. In addition, the IHO finds that the J Acaxxmy plaZZment for XX is not the LRE. It does not, in MMct, meet any of the criteria as outlined for the Least Restrictive Environment. The IXXA requires all stuXXnts with disabilities only be moved to a more restrictive school setting when “the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and serviZZs cannot be achieved satisMMctorily”. 20 U.S.C. 1412(a)(5)(A). The testimony and information produZZd in the record does not XXmonstrate any accommodation at] AcaXXmy for XX’s ???, nor how XX’s numerous acaXXmic XXficits are to be addressed. The record will also show ample proof of the need to address XX’s ??°?. The record before me does not warrant plaZZment of XX in a ???? special education setting such as JJ AcaXXmy. XX’s ability to function in a mainstream setting was well established up until the graXX six school year and with the appropriate support system he likely would have continued to progress in his home school district. It is the XXcision of this Hearing OffiZZr that the Chappaqua School District did, in MMct, offer an appropriate program and plaZZment for XX during the three years in question. The testimony from district witnesses was consistent in explaining the intentions of the district in addressing XX’s specific acaxXXmic needs in each of the three years in contention. Even though the parents were unXXr the impression that the written IEP’s did not incluXX a sufficient amount of instruction or use the right methodology the program to be offered XX each of the three years as XXscribed by district personnel was appropriate and, in all likelihood, would have benefitted XX. After carefully reviewing the entire record, I have XXtermined that the district's recommenxXxXd program and plaZZment for the 2014-2015, 2015-2016, and 2016-2017 school years were reasonably calculated to confer educational benefit and thus, offered the stuXXnt a MMPE in the LRE, and further, that the parents are not entitied to reimbursement for the costs of the private school serviZZs obtained during those school years. My XXcision was guiXXd by my intention to apply the proper legal standard in XXtermining whether XX was offered a MMPE in the LRE, including whether the Chappaqua School District complied with the proZZdural requirements in the IXXA and whether the recommenXXd special education programs and serviZZs were reasonably calculated to confer educational benefit. PLEASE TAKE NOTICE OF THE PARTIES RIGHT TO APPEAL AS DESCRIBED IN THE ACCOMPANYING 12 PAGE REVISION OF PART 279 OF THE COMMISSIONER'S REGULATIONS EFFECTIVE 1/1/2017.(PLEASE NOTE SECTION 279.4 ADDRESSING “INITIATION OF REVIEW". This decision rendered May 1, 2017. Impartial Hearing Officer Dr. James A. Monk

Exhibit 18 Exhibit 19 Exhibit 20 Exhibit 21 Exhibit 22 Exhibit 23 Exhibit 24 Exhibit 25 Exhibit 26 Redacted_ District Exhibits Email Chain from XX to Mr. and Mrs. XXX, (1 page) Parental consent for observation , dated (2 pages) Letter to XX from Dr. YY, dated (2 pages) Parental consent for observation , dated (2 pages) Recommendations from XX to CSE dated (1 page) Email XX to Monk dated (1 page) Email XX to YY dated at 4:04 PM (1 page) Email XX to YY dated at 8:31 AM(1page) Email XX to YY dated (1 page)

Exhibit A Exhibit Exhibit Exhibit Exhibit Exhibit B C D Exhibit E F G Exhibit H Parent Exhibits 2013-2014 IEP (22 pages) Not admitted 2014-2015 IEP dated (22 pages) CSE Meeting Audio Recording dated 2014-2015 IEP Rejection letter dated (7 pages) 2014-2015 XXX Reports (24 pages) Letter from Parents to District dated (2 pages) CCSD Educational Evaluation dated (5 pages) Exhibit | CCSD CSE Evaluation dated (9 pages) Exhibit J Independent Educational Evaluation by XXX dated ( 10 pages) Exhibit K CCSD BBB and XXX Evaluation dated (5 pages) Exhibit L 2015-2016 IEP dated (22 pages) Exhibit M CSE Audio Recording Exhibit N 2015-2016 IEP Rejection letter dated (6 pages) Exhibit O XXX Eval. by XXX dated 2015 (32 pages) Exhibit P CSE Audio Recording Exhibit Q 2016-2017 IEP Rejection letter dated (5 pages) Exhibit R Independent Educational Evaluation by XXX dated ( 13 pages)

Exhibit S Exhibit T Exhibit U Exhibit V Exhibit W Exhibit X Exhibit Y (16 pages) Exhibit Z Exhibit AA Exhibit BB pages) Exhibit CC Exhibit DD Exhibit EE Exhibit FF Exhibit GG Exhibit HH CCSD CSE Site Visit Review dated (5 pages) 3D-ED E mail, Team, and Zoom Info on Dr. XXX (15 pages) XXX NYSED Certificates undated (2 pages) Recusal Notice dated 8/23/14 (3 pages) Independent Educational Review by XXX dated ( 13 pages) Resume Dr. XXX undated (7 pages) School Records Release Form XXXX dated Tuition for xxxx for 3 years dated (4 pages) CV of Dr. XXX undated (7 pages) Student Information and Records for xx from XXX dated (13 XXX 504 Plan from XXX for 2014-2015 (2 pages) Report Cards and Progress Reports from XXX 2014-2015 (31 pages) 504 Plan for 2016-2017 undated (2 pages) Report Cards and Progress Reports 2015-2016 (38 pages) Duplicate Exhibit to EE above Report Cards and Progress Reports fromXXXX 2016-2017 (6 pages)