Impartial Hearing Decision

x In the Matter of the Impartial Hearing on Behalf of X,

Petitioner, And

Central School District,

Respondent. x

FINDINGS OF FACT AND DECISION

Impartial Hearing Officer James McKeever, Esq.

Dated: June 22, 2016

Decision

This matter concerns an 18-year-old boy classified as Student with a “learning disability” (Exhibit 24).

On September 4, 2015, the parent filed a Due Process Complaint (“DPC”) alleging that the Central School District (“District”) failed to offer the Student (“X”) a free and appropriate public education (“FAPE”) for the 2013-2014, 2014-2015 and 2015-2016 school years. The parent also alleged that the District denied X a FAPE during the 2012-2013 school year and submits that the statue of Limitations should be tolled to include this school year because the District failed to provide the parent with the Procedural Safeguards Notice (“PSN”) in her native language of Urdu (Exhibit A). The parent is requesting tuition reimbursement for the subject school years for the X’s private placement, Independent Educational Evaluations (“IEE’s) and compensatory educational services.

On September 9, 2015, the undersigned was appointed to hear and decide the issues raised in the DPC.

The initial resolution period expired on October 9, 2018.

The initial prehearing conference was scheduled for October 20, 2015. However, it was not actually held until October 29, 2015 because the parent’s advocates were unavailable.

During the pre-hearing conference the issue of pendency was discussed and because the District asserted that there were issues of fact to be decided, requested that a pendency hearing be scheduled. To that end, a pendency hearing was schedule for November 20, 2015, which was the date the parties’ witnesses’ were available.

Thereafter, the parent requested that the pendency hearing be adjourned due to the death of the Advocate’s mother. The District did not object and the hearing was rescheduled to December 10, 2015. During this time, the undersigned raised the issue of addressing pendency on papers, in lieu of a hearing. Subsequently, it was decided that the issues of pendency and the hearing on the merits would be held on December 10, 2015 and December 11, 2015.

The hearing dates of December 10, 2015 and December 11, 2015 were cancelled at the request of the parties based on the good faith belief that the parties were going to reach a settlement, which would obviate the need for a hearing. However, after several inquiries regarding the status of settlement, the parties advised that the settlement negotiations were unsuccessful. Upon receipt of this information, the parties were directed to address the issue of pendency in writing. To that end, a briefing schedule was arranged and the final Reply papers filed by the parent and the District, dated January 14, 2016, were received by the undersigned on or about January 19, 2016.

On or about February 1, 2016, the undersigned issued an Order of Pendency, denying the parent’s requested relief (Exhibit IHO #5).

The initial hearing date was held on February 11, 2016. The hearing date scheduled for February 12, 2016 was cancelled due to a snowstorm that prevented the parent Advocates from attending (Tr. 292).

The hearing continued on April 21, 2016 and April 22, 2016, due to witness availability.

Post-hearing briefs were sent on or about May 19, 2016, which the undersigned received on or about May 24, 2016.

Throughout the hearing process, the parties made multiple requests to extend the compliance date due to witness availability, preparation for due process as well time to review the transcripts and prepare post-hearing briefs. The Orders of extension were served on all parties as per the Commissioner’s Regulations and are part of the hearing record.

The Record Close date was June 20, 2016.

The current compliance date is June 22, 2016.

Pleadings:

The impartial hearing was held pursuant to the Individuals with Disabilities Education Act (IDEA), regarding the parent’s request for a finding that the District denied the Student a FAPE during subject school years. Specifically, and in summary, the parent contends that the District denied the Student of FAPE when it failed evaluate to the student and failed to hold a CSE meeting to develop an IEP and/or evaluate the student during the four school years at issue. The parent also contends that the District denied X a FAPE when it failed to provide the parent with the PSN, Prior Written Notice (“PWN”) and Consent to Evaluate in her native language of Urdu.

The District asserts that X was offered a FAPE prior to the parent’s unilateral placement of the student at the Private School school (“Private School’) located with the Buffalo City School district, and that the District was not required to develop or review annual IEPs for X because the parent exhibited an intent to keep X enrolled in a nonpublic school. The District also asserts that during the last school year at issue, the parent’s actions denied the District an opportunity to offer the student a FAPE prior to his unilateral placement at Private School #2 of Scholars (“Private School #2”). The District further asserts that the parent’s unilateral placements were inappropriate and that equitable considerations do not favor granting tuition reimbursement to the parent (District’s Answer and Brief, generally).

Findings of Fact:

X is an eighteen-year old boy classified as a child with a (Tr. 78). Classification is not at issue (Exhibits D-34 and D-52).

X’s parents are from Their native language is Urdu.

X attended pre-school in Massachusetts and in Texas where he was identified as student with a disability and received special education services (Exhibit D-18).

X was referred to the District’s CSE in September 2005 (Exhibit D-17).

X has significant cognitive and academic deficits (Tr. 82). Cognitively, X scores were in the “ ” range of functioning with a Full Scale IQ of . Academically, his scores in reading and math ranged from the percentile to the percentile, with the exception of “word reading,” where his scores were in the average range (Exhibits 18, and 19, WISC-IV and WIAT-II results 2007). ^[1].

From 2007-2008 school year through 2010-2011 school year, X attended a self-contained, 15:1 class with Resource Room and related services of therapy, therapy and within the District (Exhibits D-17-D-18).

On or about September 17, 2010, X was referred for a re-evaluation (Exhibit D-19). The District made several attempts to obtain consent from the parent for the evaluation on September 17, 2010, November 15, 2010, and December 3, 2010, without success (Exhibit D-19). In early December 2010, the District’s Child Support Team conducted a classroom observation and a review of records, as well as a evaluation in lieu of a triennial evaluation. The report reflected similar cognitive and academic abilities as reported in 2007. ^[2]

X’s father passed away in October 2010.

On December 6, 2011, the District sent a “Meeting Notice” to the parent for a CSE meeting that was scheduled for December 21, 2011. The Meeting Notice was in English (Exhibit 20). The Meeting Notice specifically asked if the parent required an interpreter or a translator for the CSE meeting (Exhibit 20, Tr. 327).

On December 21, 2011, the CSE developed an IEP for the 2011-2012 school year and for part of the 2012-2013 school year. X’s mother was present and participated in the meeting (Exhibit 21). Although the IEP indicated that X’s native language was Urdu (Tr. 179, Exhibit A-10), the parent did not request an interpreter for the meeting, nor did she request that the IEP be translated from English to Urdu.

The Meeting Minutes for the IEP meeting indicate that X’s mother “was pleased with [X”S] progress and that she was supportive of the CSE’s recommendations” (Exhibit 22). Additionally, the parent testified that she attended the IEP meeting and that she agreed with the CSE’s recommendations (Tr. 641 ).

On August 20, 2012, the District sent the parent another Meeting Notice for a CSE meeting that was scheduled for September 6, 2012 (Exhibit 23). The Meeting Notice was in English.

On September 5, 2012, X’s mother signed a “Pupil Separation Form” indicating that X was moving out of the District (Exhibit 26, Tr. 79). However, in the section where the parent was asked to identify her new location, the parent wrote Private School [school] (Exhibit 26). The form was in English.

On September 6, 2012, the CSE held a meeting and generated an IEP (Exhibit 24). The parent was not present at the meeting. The IEP indicated that the parent unilaterally placed X at Private School (Exhibit 24). The IEP also indicated that the student’s reading class was reduced from 90 minutes opt 42 minutes. (Tr. 358).

Thereafter the District issued a “Prior Written Notice” and sent the notice to the parent’s address in East Amherst, New York (Exhibit A). The PWN did not reflect that the reading class was reduced (Tr. 392, 393).

The Meeting Minutes indicate that the IEP was amended to reflect that X was enrolled at Private School (Exhibit 25).

On November 1, 2012, the District sent X’s records to Private School (Exhibit 28).

In September 2012, X was enrolled at Private School (Exhibit 5). At Private School X was placed in general education class with the assistance of an aide. No special education services were provided (Tr. ). X remained at Private School for 6th, 7th and 8th (Tr. 81).

X’s report card for the 2012-2013 indicates that X did not receive any grades except for math, where he scored a 67-69 (Exhibit F-3). His report card for the 2013-2014 school year showed that he passed English II, but received no other grades. His report card for the 2014-2015 school year showed that he passed English II again and received a B- in Art, but received no other grades. Nevertheless, the notes indicated that he made progress and that he was expected to graduate (Exhibit F-5). It was also reported that he worked one to one with his Teacher’s Adie and that the curriculum was modified (Exhibit F-6, F-7, and F-8).

During X’s time at Private School, the parent did not request any services from the District or the Buffalo City School District, which was the district of location (Tr. 172).

The District’s CSE team did not meet during the school years X attended Private School because X had been withdrawn from the District (Tr. 85).

During the summer of 2015, X attended a summer program at the School, which is a private school for students with language-based disabilities. X’s grades for writing were “Meets Requirements” (Exhibit F-8). However, in math, his worked was reported as “marginal.” (Exhibit F-9).

In September 2013, when X was approximately, 15 years old, the parent obtained a private by the Psychology Group. X’s results on the WISC-IV were in the percentile. Academically, his Broad Reading skills were at the percentile and math calculation skills were at the percentile (Exhibit E-14, page 5).

In October 2013, the parent obtained a private evaluation and a private evaluation. The evaluation indicated that his receptive and expressive language skills were significantly (Exhibit 15). The evaluation indicated that X had significant delays in visual perceptual skills, gross and fine motor skills, as well as motor planning and functional performance deficits (Exhibit E-16).

X has a (Exhibit E-17).

On or about July 2015, the parent met with W a Guidance Counselor at the District’s high school to discuss possible enrollment in the District (Tr. 422, 635). During the meeting, the parent did not tell Mr. W that X was classified and or that X had an IEP (Tr. 636). Additionally, the parent told Mr. W that she was also considering placing X at another school in Rochester and, consequently, did not complete the enrollment process. (Tr. 422, 635). Thereafter, Mr. W gave the parent the forms for enrollment, and the parent left the meeting (Exhibits 1, 2, ^[3] and ^[4] ).

On August 11, 2015, X’s brother, who is a doctor, met with Mr. W at the District’s high school to discuss registering X for the 2015-2016 school year (Tr. 91). During this meeting, X’s brother did not inform the District that X had an IEP or that X had been previously enrolled in the District (Tr. 91). X’s brother also gave Mr. W the forms his mother was given by Mr. W on July 15, 2015. However, although the forms indicated that X’s mother had signed the forms, at the hearing, X’s brother disclosed that, with the permission of his mother, he had signed her name on all the registration forms, which he did not disclose to the District at the time he met with Mr. W.

The “Home Language Questionnaire” (Exhibit 1) completed by X’s family indicated that the parent speaks, understands, reads and writes “only a little” English. She also noted that her comprehension was weak (Exhibit 1).The registration form that was completed showed that the family had checked “yes: in a box on the form that asked if X had been previously “classified or had been found to have a learning problem” (Exhibit 2). However, the family also indicated on the same form that X had “never been tested or evaluated by a school psychologist” (Exhibit 2). Additionally, under the section on the form where it asked what school or schools were involved with respect to the provision of special education services, the parent wrote delay” and “resource room.” She did not identify the school or indicate that X had been previously enrolled in the District (Exhibit 2). As such, Mr. W did not know that X was a former student of the District who had been previously classified and entitled to receive special education services.

On August 11, 2015, the family completed the “Pupil Registration Form” and indicated that the previous district and school was Private School in Buffalo, (Exhibit 4).

On August 15, 2015, the parent completed a “Personal Data Questionnaire,” which indicated that she resided within the District.

Based on the information contained in the registration forms, and the failure of X’ s mother or brother to advise anyone at the District high school that X had previously attended the special education program in the District, or that X had an IEP, the District enrolled X as a general education student.

In September 2015, the parent placed X placed at the Private School (“Private School #2”), which is a private general education school in the City of Buffalo.

By letter dated September 4, 2015, the parent advised the District that she was placing X at Private School #2 and that she would be seeking reimbursement from the District (Exhibit C-13). However, the letter does not include the parent’s name, nor was it signed by the parent (Exhibit C-13, Tr. 95).

On the same date, the parent filed for due process (Exhibit 29).

The parent did not submit a 10-day notice letter to the District for any of the other school years at issue (Tr. 86).

The District did not provide any special education services to X when he was at Private School or Private School #2 (Tr. 86). Parent also never contacted the District with any concerns during this time (Tr. 24).

On or about September 8, 2015, the District developed a program for X, which included all general education classes because the parent had not informed the District that X was a special education student (Exhibit A-9, 94, 98). However, although X was registered as a general education student, the District placed him in classes that were co-taught with a special education teacher (Tr. 99).

On October 7, 2015, the District requested that the parent provide consent for reevaluation (Exhibit A-11-3, Exhibit D-14, Tr. 177).

On or about December 31, 2015, the parent, by way of her Advocate, provided the District with her consent to evaluate (Exhibit A-11), which was approximately three months after the District’s request. Additionally, the consent included a list of conditions, which included that X could not miss any instructional time at his private school in Buffalo as a result of the testing.

D is the coordinator for special education services at the District. Ms. D is also a school psychologist and holds a teaching license as well as a District Administrator license (Tr. 68-69).

Ms. D testified that once the District received the parent’s DPC, the District sent her a letter acknowledging receipt and, as part of its practice, included a copy of PSN (Tr. 71). Ms. D related that the parent was not entitled to tuition reimbursement because she had not given the District an opportunity to evaluate X and because she had not given the District and opportunity to develop an appropriate program for X before she made the unilateral placements at the private schools (Tr. 100-101). Ms. D did not respond to the parent’s request for transportation.

The parties held a Resolution meeting in the fall of 2015. The notice for the Resolution states that, if necessary, an interpreter can be present. The parent and her Advocates participated in the Resolution meeting. However, the parent did not request that an interpreter be present (Tr. 254, Exhibit C-16).

Ms. D testified that the parent did not provide the District with a copy of the private psychological evaluation conducted by and that the parent failed to provide the District with a copy of the private evaluation or the private evaluation (Tr. 104-105).

Ms. D acknowledged that the family has lived in the District since X was in kindergarten (Tr. 108, 118). Ms. D also acknowledged that the District is required to send PSNs in parent’s home language However, the Ms. D stated that the District was not aware that X’s parent required anything in Urdu (Tr. 111, 118),

The District provided PSNs to the parent at all the annual reviews. The PSNs were in English (Tr. 113).

The District did not tell Buffalo City School District that X was attending a private school within Buffalo (Tr. 140).

The parent never asked for transportation when X attended Private School and the School (Tr. 172).

By letter dated September 4, 2015, the parent asked for transportation for the 2015-2016 school year. However, District responded to the parent and stated that she was not entitled to tuition reimbursement and failed to address the parent’s transportation request (Tr. 146-147, Exhibit 7, 13).

The District did not schedule a CSE in fall of 2015 because there no request to do so and because the DPC had already been filed (Tr. 18).

All documents from the private school are in English (Tr. 228).

School psychologist is school psychologist at the District. Ms. School psychologist has known the parent since 2010.

Ms. School psychologist has always communicated with the parent in English (Tr. 319), and actually thought that the parent’s native language was English (Tr. 388).

During the CSE meeting in December 2011, the parent spoke English and appeared to understand English. The parent also never indicated that she did not understand English or that she needed an interpreter (Tr. 319, 334). The parent also told the CSE that she was pleased with the CSE’s program (Tr. 323).

Parent never requested services from the District for X when he was at Private School, or Private School #2 (Tr. 333).

Ms. School psychologist testified that PSNs are always sent out with annual reviews and request reevaluations (Tr. 343). Although the PSNs sent to the parent in English, Ms. School psychologist explained that it was sent in English because there was no reason to believe that the parent required any notice to be written in a language other than English (Tr. 345).

Ms. School psychologist conceded that the CSE is required to keep of log of its attempts to have the parent attend a CSE meeting. However, there was no log of attempts to have parent attend the CSE meeting held in September 2012 (Tr. 354). Nevertheless, by this time the CSE was aware that the parent had removed X from the District and the CSE meeting was only held to indicate on the IEP that X was parentally place (Tr. 360).

Ms. School psychologist testified that she never heard from the parent once she removed X from the District (Tr. 373), and that she did not know why parent placed X at Private School or Private School #2 (Tr. 382).

Ms. School psychologist also stated that the CSE did not meet after 2012 because the parent removed X from school and there was no expectation that X was coming back (Tr. 395).

W is guidance counselor at the District High School (Tr. 417). Mr. W is involved in the admissions process. Mr. W testified that if parent were to indicate that a student needs special education services and does not have an IEP, the student would be referred to the District’s Child Study Team to initiate the evaluation process (Tr. 421).

Mr. W confirmed that he met with X’s mother met in July 2015 (Tr. 422). He also confirmed that X’s mother told him that X had an aide at Private School. However, he also stated that X’s mother did not tell him that X an IEP. Accordingly, Mr. W told the parent that X would needed to be tested by the District to determine the need for services (Tr. 423). Additionally, Mr. W acknowledged that Guidance form he received from X’s brother indicated that X had been “classified or been found to have a learning problem.” However, he noted that the form also indicated that X had never be tested or evaluated by a school psychologist (District 2),

Further, during her meeting with Mr. W, the Parent told him that she was going to visit a school in Rochester and that she was not sure if she would enroll X in the District. As such, the enrollment procedure was postponed until the parent decided where she wanted to enroll X (Tr. 424).

Mr. W spoke to the parent in English and Mr. W stated that the parent appeared to be fluent in English (Tr. 425). During the meeting with Mr. W, the parent did not ask for an Urdu interpreter. The parent also did not ask that any of the enrollment forms, which were in English, be translated from English to Urdu.

Mr. W also confirmed that met with X’s brother in August 2015 (Tr. 426). Mr. W testified that was not aware that X had attended middle school in the District and that neither X’s mother, or his brother told him that X had ever been placed in a public school (Tr. 430, 433). As such, Mr. W developed a general education program for X and, based on the information he had at the time, placed him in a co-taught class. Mr. W stated that had he known X had been previously classified, Mr. W would have developed a different program for X (Tr. 431).

Dr. -C is the executive director of Private School #2 (Tr. 497). Dr. C met X when she was the head of school at Private School. Dr. C testified that X’s needs were much greater than the average Private School student (Tr. 503). However, X was allowed to attend because the parent paid for an aide who pulled him out and instructed him in one-to-one setting during the school day (Tr. 540). Nevertheless, Dr. C did not know if X received a modified curriculum during the 2014-2015 school year because she was no longer at Private School (Tr. 507).

The core classes at Private School #2 are taught in a one-to-one setting. There are ^[5] to 11 students in each class and only 18 students in the school (Tr. 510). Dr. C did not think that X was a good fit socially or academically or Private School #2 (Tr. 515). However, because the parent paid for a special education teacher, X was permitted to attend (Tr. 516, 537).

X received speech services outside of school (Tr. 522).

Dr. C testified that the Student performed at a to grade leave and that his performance was inconsistent at Private School #2 (Tr. 549).

Dr. K testified that he was in medical school in Ireland in 2012 and that he came back to Buffalo in 2015. Dr. K speaks Urdu with his mother at home. However, he stated that his mother speaks English to X in the home.

Dr. K. testified that he enrolled X in the District in 2015 because the parent’s Advocates told him to do so (Tr. 577). Dr. K also testified that he actually helped Mr. W develop X’s program, which was a general education program. He also said the program was fine. However, he said he told Mr. W that X would need help getting from one class to the other because he was developmentally delayed and that Mr. W told him that the District would reassess X’s needs after the first marking period (Tr. 585).

Dr. K. never told the District that his mother needed translator (Tr. 602). He also admitted that his mother can tell someone she if she doesn’t understand English and that she could ask for help in English if she needed to (Tr. 597).

Dr. K testified that he told Mr. W that X had attended Middle School in the District (Tr. 602). But when asked if X was previously classified as a student with a disability, Dr. K said he did know what the meant (Tr. 603). He also stated that he did not know what an IEP was.

The parent testified that she can understand English well, but that she cannot not understand legal documents that are written in English (Tr. 613). 3 The parent attended CSE meetings since X was first enrolled in the District in 2005 (Tr. 613).

The parent said removed X from middle school because she thought the proposed class was too low functioning (Tr. 624). She also said that she didn’t know that she could file for due process and that she was not aware that she could have asked for special education services and transportation when X went to private school in Buffalo (Tr. 621).

Further, the parent confirmed that when she met with Mr. W, she did not tell him that X had previously attended school in the District, and she did not tell him that X had an IEP (Tr. 636). The parent also confirmed that she told Mr. W that she as considering placing X at a school Rochester and that she was not certain that she would enroll X in the District (Tr. 637).

The Parent agreed with the program in middle school (Tr. 646). The parent also received notices from District when X was in middle school (Tr. 646), and she never asked anyone at the District to translate any document from English to Urdu (Tr. 647).

Finally, the parent testified that she never received PSN in its blue format, or any other color (Tr. 648). However, she also said that her husband had handled the mail. As per the agreement of the parties, the parent testified at the hearing in English without using an interpreter even though one was present.

FAPE 2015-2016 school year:

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits 8 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-mXing process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (WalczX v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (WalczX, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; WalczX, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting WalczX, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; WalczX, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422,

428 [W.D.N.Y. 2008]).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra, 427 F.3d at 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148).

The District bears the burden of proof in due process hearings brought under the IDEA in New York State (See, N.Y. Educ. Law Section 4404). As indicated above, the DOE conceded that the Student was not offered a FAPE for the 2012- 2013 school year (Tr. 16). As such, I will only address the parent’s unilateral placement and the equities in this matter.

Child find" obligations with regard to the student, the IDEA places an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]; 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400, n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.111[c][1]; 8 NYCRR 200.2[a][7]). To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children (Application of a Child Suspected of Having a Disability, Appeal No. 05-090; Application of a Child with a Disability, Appeal No. 04-054; Application of a Child Suspected of Having a Disability, Appeal No. 01-082; Application of a Child with a Disability, Appeal No. 93-41). Statute of Limitation (SOL) for IDEA claims:

The parent asserts that the SOL should be tolled to include the 2012-2013 school year because the parent did not received the PSN in Urdu or English prior to that school year.

The IDEA requires that, unless a State chooses to set a different limitations period under State law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged violation (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; N.Y. Educ. Law § 4404[1]). The IDEA was amended in 2004 and the present two-year statute of limitations became effective in July 2005 (id.). Prior to July 2005, the statute of limitations in New York for alleged violations of IDEA was one year (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir. 2003]; Application of the Bd. of Educ., Appeal No. 02-119; see Application of a Child with a Disability, Appeal No. 06-013).

The parent filed her DPC on September 4, 2015. Thus, without a finding that an exception applies, the parent’s IDEA claims can only go back to September 4, 2013.

Here, the parent’s DPC states that she is requesting a hearing regarding her disagreement with the CSE’s failure to “make recommendations” for the 2013-2014, 2014-2015 and 2015- 2016 school years (DPC, page 2). However, at the end of a long list of allegations, the parent states, at number 9, that the District also failed to provide a FAPE for the 2012-2013 school. Significantly, the parent did not allege any facts to support her claim that X was denied a FAPE during the 2012-2013 school year, nor did she allege any facts to support a finding that an exception to the SOL was warranted and that the SOL should be tolled in her favor. Additionally, under the “proposed solution:” the parent states that she is only seeking reimbursement for the 2013-2014, 2014-2015 and the 2015-2016 school year, and not for the 2012-2013 school year, which was the first year X was placed at Private School (DPC, paragraph 18, page 5). Moreover, although the parent argued at the hearing that she was prevented from filing for due process because the District allegedly failed to provide the parent with a PSN in Urdu, or in English, these facts were not alleged in the parent’s DPC. Nevertheless, the parent was permitted to submit evidence at the hearing in support of this claim, in part, because there was a fleeting reference to the 2012-2013 school year in her DPC and because there was no objection from the District. However, I find that based on the allegations contained in the DPC, the 2012-2013 school year is beyond the four corners of her DPC. Accordingly, the parent’s request that the SOL be tolled to include the 2012-2013 school year is denied.

However, notwithstanding the ruling above, I also find that the parent failed to prove that an exception to the SOL is warranted. Specifically, although the parent claims that she did not received a PSN in English or in Urdu, D and School psychologist both credibly testified that the PSNs was sent to the parent with every meeting notice and with every IEP . Additionally, the evidence shows that the parent participated in the CSE process since X was in kindergarten, and that although she claims she did not receive a PSN, she also stated that her husband had “handled the mail.” Thus, based on the parent’s qualified testimony, and the unwavering declaration of Ms. D, which was corroborated by the testimony of Ms. School psychologist , I find that the District sent the parent the PSNs when X was enrolled in the District.

Further, although it is undisputed that the PSNs were sent to the parent in English, and not in Urdu, I find that this fact does not establish that parent was prevented from requesting a hearing in a timely fashion. Significantly, despite the parent’s claims to the contrary, I find that the parent can speak and comprehend English to the extent that the District’s failure to provide a PSN in Urdu did not impede her ability to understand her rights, or X’s rights, under the IDEA.

First, the record shows that the parent received numerous documents from the District over the course of several years and that the parent never raised an objection to the fact that the documents were in English. The evidence also shows that the parent never asked that a District document be translated into Urdu, nor did she ever inform the District that she did not understand something because it was in English and not in Urdu. Additionally, the evidence shows parent participated in the CSE process for several years and that the District staff always communicated with her in English and that the parent never asked for an interpreter. Significantly, although the parent claims that her husband had previously handled X’s education, or that her adult children, who speaks English, had previously assisted her in CSE process, the evidence shows that the parent received a Meeting Notice in 2011, which was in English, and that subsequently she participated at the CSE meeting which was held in December 2011,without an interpreter, which was after her husband had passed away and during the time when her adult children were studying abroad. Thus, I find that these facts that support a finding that the parent was sufficiently able to navigate the CSE process in English. Moreover, the evidence also shows that the parent speaks to X in English at home. Finally, the parent chose to testify at the hearing without the assistance of an Urdu interpreter, who was actually at the hearing for that very purpose, which demonstrated that she could speX and comprehend English.

Lastly, despite the fact that the IEPs in evidence indicate that X’s native language was Urdu, an irrespective of the regulation that requires PSNs and IEPs be translated into a parent’s native language, the evidence shows that that parent never excised this right and, in fact, led the District to believe that she did not require any mode of communication other than in English. Thus, for these reasons, the parent’s request to toll the SOL is denied.

Classification:

In her post-hearing brief, the parent contends that X’s classification should be changed from to However, the parent did not raise this issue in her DPC. As such, I find that the issue of classification was beyond the scope of the hearing. Accordingly, the parent’s request for a finding that X is a student classified as a child with is denied. FAPE for the 2013-2014 and 2014-2015 School Years:

Here, the parent claims that the District denied X a FAPE because the District failed to evaluate X for special education services and because the District failed to develop an IEP for these school years.

Pursuant to Education Law § 3602-c, boards of education of all school districts of the State shall furnish services to students who are residents of this State and who attend nonpublic schools located in such school districts upon the timely written request of the parent or person in parental relation of any such student. For the purpose of obtaining education for students with disabilities, such request shall be reviewed by the CSE of the school district of location, which shall develop an IESP for the student based on the student's individual needs. (Educ. Law §§ 3602-c[2][a], [2][b][1] as amended by L.2007, c. 378, § 27, subd. d; L.2005, c. 352, § 22). The district of location's CSE is also required to assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).

According to an interpretive guidance memorandum published by the New York State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (VESID) and titled "Chapter 378 of the Laws of 2007—Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the [IDEA] 2004 and New York State (NYS) Education Law Section 3602-c," (VESID guidance memorandum) dated September 2007, with respect to child find requirements and the provision of special education programs and services to students parentally placed in private schools within the district of location, the VESID guidance memorandum notes, in pertinent part, the following:

The district of location is responsible for child find for students who are parentally placed in nonpublic schools located in their geographic boundaries.

The CSE of the district of location must develop the IESP for students with disabilities who are NYS residents and who are enrolled by their parents in nonpublic . . . schools located in the geographic boundaries of the public school.

The IESP must be developed in the same manner and with the same contents as an IEP is developed. (VESID guidance memorandum at pp. 4-5).

The United States Education Department guidance, which can be found in the Federal Register at: Child Find for Parentally-Placed Private School Children with Disabilities

(§300.131) 71 Fed. Reg. 46593 (August 14, 2006): indicates that "If a determination is made by the LEA [local educational agency] where the private school is located that a child needs special education and related services, the LEA where the child resides is responsible for making FAPE available to the child. If the parent makes clear his or her intention to keep the child enrolled in the private [school] located in another LEA, the LEA where the child resides need not make FAPE available to the child" (See Maine School Administrative District #40, 108 LRP 40513 [ME SEA, Oct. 23, 2007] [interpreting and applying the federal guidance and concluding that a district of location was not required to create an IEP for a student given the parent's intention to keep a student in a private boarding school]).

It is undisputed that that the parent voluntarily removed X from the District in September 2012 and enrolled him at a private school located in the Buffalo City School District, where he remained for the 2012-2013, 2013-2014, 2014-2015 and 2015-2016 school years. It is also undisputed that the Buffalo City School District did not make a determination through its child find process that the student needed special education and related services. However, unlike the facts in Application of a Student with a Disability 11-011, the parent in this case never requested that the District (District of residence) develop an IEP for these two school years. Thus, I find that, under these circumstances, the District was not required to develop an IEP because the parent never made a request for an IEP and because the parent made it very clear that she was keeping X enrolled in the private school outside the District.

However, an assuming arguendo that the District was required to develop an IEP and offer X a FAPE for the 2013-2014, 2014-2015 school years because the District of location did not mXe a determination to do so under its child find obligation, then it is clear that the District cannot meet it’s prong one burden under the Burlington analysis because they failed to develop an IEP.

However, with respect to the parent’s placement, I find that the evidence shows that the parent failed to prove that the services provided by Private School were appropriate. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). Specifically, as indicated above, the evidence shows Private School is a general education school and that despite X’s significant cognitive and academic deficits, did not provide any specialized instruction that was tailored to met his individual education needs. Additionally, the student’s report cards, which were mostly ungraded, clearly show that he was not obtaining an educational benefit from his placement. Thus, I find that the parent has failed to show that the education services at Private School were appropriate or that X obtained an educational benefit from his placement at the school. Accordingly, the parent’s request for reimbursement for tuition and transportation during the time X attended Private School is denied.

Finally, although I found the parent’s placement was inappropriate and therefore need not address the “equities” issue, I find that the particular facts of this case compel me to do so.

Here, the evidence shows that the parent removed the student and placed him at Private School in September 2014, but waited until September 2012 to advise the District that she would be seeking tuition reimbursement. Although the parent claims that she did know that she could file for due process, as indicated above, I found that the parent was provided with PSNs and that she was capable of understanding the PSN in English. Thus, I find that the parent’s actions over the course of these two school years denied the District an opportunity to evaluate X and denied the District the opportunity to convene a CSE meeting to develop an IEP for the student before he was actually placed at the private school. Thus, assuming the District denied the student a FAPE by not developing an IEP for these school years, I find the lack of notice to the District before the student’s placement at Private School warrants a denial tuition reimbursement. (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]).

The School-Summer 2015:

The parent also requests reimbursement for the tuition and transportation during the time X attended the School.

Here, there is insufficient evidence to support a finding that X’s placement at the School was appropriate to meet his needs. Although the parent presented X’s schedule and progress reports, there is no evidence in the record to explain how, if at all, X obtained an educational benefit from his placement at the school. Thus, I find that the parent has failed to prove that the educational services at were appropriate. 1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]).

Additionally, the evidence shows that the parent also failed to provide the District with any notice of the student’s placement at until she filed the hearing request in September 2015. Accordingly, the parent’s request for reimbursement is also denied on equitable grounds (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). 2015-2016 School Year-Private School #2 of Scholars:

The parent also requests that the District be directed to reimburse her for tuition and transportation expenses for the current school year.

Here, the evidence shows that the District did not develop an IEP for X for this school year because the parent and the student’s brother failed to adequately communicate to the District’s high school that the student had been previously classified as a student with a disability and that he required an IEP. As indicated above, the evidence shows that that on one of the registration forms the family checked “yes” next to the box for “classified,” and then checked “no” next to the box that stated “was the student ever tested or evaluated by a school psychologist.” As such, the District’s high school’s admission office was not certain that X required an IEP, which is why the District developed a general education program for the student. Nevertheless, once the District received the parent’s DPC, which was very early in September, and realized that the Student required an IEP, the District made a request to evaluate the student in order to develop an appropriate program. Unfortunately, the parent, who was clearly represented by this time, waited three months to provide consent and then made several demands with respect to the timing of the testing. Thus, based on these facts, I find that the District’s failure to develop an IEP before the beginning of this school year was not a denial of

FAPE.

Further, I also find that the program at Private School #2 is inappropriate to meet X’s special education needs. Here, the evidence shows that Private School #2 is a general education program, and that the only reason X was admitted to the school was because the parent agreed to pay for a private teacher to instruct X throughout the day (Tr. 537). Additionally, the evidence shows that X has made minimal academic progress and that socially he has had very limited success. Thus, base on these facts, I find that the parent has failed to meeting her burden of proving that Private School #2 was appropriate to meeting X’s needs. Accordingly, the parent’s request for tuition reimbursement on prong two is also denied.

Finally, the parent’s request for tuition reimbursement must also be denied on equitable grounds. Here, the evidence shows again that the parent failed to provide the District with adequate notice prior to placing X at Private School #2. Thereby denying he District the opportunity to evaluate X and develop an appropriate program for the subject school year. I note that from at least August of 2015 the family had engaged the services of their educational advocates, yet failed to provide a timely notice to the District. I also find the parent’s alleged interest in actually placing X within the District was insincere in that the student’s brother testified that he only enrolled X in the District because the families’ advocate told him to do so. Thus, for all of the above reasons, the parent’s request for tuition reimbursement at the Private School #2 for the 2015-2016 school year is denied. Transportation for the 2015-2016 school year:

Here, the evidence shows that on or about September 4, 2015 the parent made a request for transportation services for X while he attended Private School #2 (Exhibit 7). There is no dispute that X is entitled to transportation services. There is also no dispute that the District failed to provide transportation services once the parent requested same. As such, the parent’s request for reimbursement for transportation services from the date of he request is granted.

IEE:

The parent requests that the District fund several private educational evaluations (DPC).

Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an evaluation with which the parent disagrees" (34 C.F.R. § 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363 F. Supp. 2d at 234-35). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 C.F.R. § 300.502[b][2][i]-[ii];5 8 NYCRR 200.5[g][1][iv]; see, e.g., A.S. v. Norwalk Bd. of Educ., 1835, Appeal No. 08- 039; , Appeal No. 07-126; , Appeal No. 06-067; , Appeal No. 05-009; F. Supp. 2d 534, 549 [D. Conn. 2002] [upholding order of reimbursement where the district failed to demonstrate that its evaluation was appropriate]; Application of the Bd. of Educ., Appeal No. 09-109; Application of a Student with a Disability, Appeal No. 08-101). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502[b][3]; 8 NYCRR 200.5[g][1][v].

Here, the evidence shows that parent did not request an IEE prior to filing her DPC. Additionally, the parent failed to identify any evaluation that was conducted by the District that she actually disagreed with. As such, under these facts, and based on the regulations referenced above, I find that the parent is not entitled to any IE E.

Lastly, I have considered all of the other claims for relief and find that they are without merit.

ORDERED

The District shall reimburse the parent for reasonable transportation expenses from the date of the parent’s request for same during the 2015-2016 school year and provide transportation services for the student to Private School #2 for the remainder of the 2015-2016 school year.

ORDERED

All other claims referenced in the parent’s Due Process Complaint are dismissed, with prejudice.

Dated: New York, New York

June 22, 2016 James McKeever James McKeever, Esq.

Impartial Hearing Officer

PLEASE TXE NOTICE

Within 35 days of the receipt of this decision, the parent and/or Board of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

The notice of intention to see review shall be served upon the school district not less than 10 days before service of a copy of the petitioner for review upon such school district, and within 25 days from the date from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the dated of the decision sought to be review. 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. (8NYCRR279.2[b]). Failure to file the notice of intention to seek review is a waiver of the rights to appeal this decision.

Directions and sample forms can be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

District’s Exhibits:

Exhibit # Date #Pgs. Type Author Recipient Summary 1 7/31/15 1 Form The University of File Home Language Questionnai the State of New (HLQ) York 2 7/31/15 1 Form District File Guidance Supplemental Data Form Exhibit # Date #Pgs. Type Author Recipient Summary 6 8/17/15 2 Report Private School File 2014-2015 Final Report School 7 9/4/15 8 Letter District Unilaterally placing student letter an hearing request 8 9/8/15 1 Letter Scott Martzloff/ Mr. James Confirmation of appointment

Anna Cieri McKeever hearing officer 9 9/8/15 1 Letter Anna Cieri Mr. James Board policy McKeever 10 9/11/15 1 Form District File 2015-16 schedule 11 9/14/15 2 Letter YYY S. D Mrs. Khan Invitation for a Resolution Session 12 9/25/15 3 Letter Andrew J. WNYFACES District’s formal response Freedman 13 9/28/15 1 Letter YYY S. D Mrs. Khan 14 10/7/15 3 Letter D Mrs. Khan Prior Written Notice Propose

Reevaluation and Request f

Consent/Consent Form f Reevaluation 15 11/30/15 2 Calendar The Private 2015-2016 School Calendar School #2 of Scholars 16 12/2/04 6 Evaluation Dianne Rusek File Evaluation 17 1/30/06 2 Form District File CSD Special Educatio

System Referral to CSE

Review/Change of Program 18 10/31/07 6 Form District File CSD Special Educatio

System Referral to CSE – R Evaluation Review 19 9/11/15 3 Form District File Central School Distri

Child Support Team Summary 20 12/6/2011 2 Letter Lisa Lee School Mrs. Rizwan Meeting Notice Committee o psychologist Khan Special Education (CSE) 21 12/21/2011 10 IEP District File Meeting Dated 12/21/2011 22 12/21/2011 1 Form District File Committee Meeting Information 23 8/20/12 2 Letter Lisa Lee School Mrs. Rizwan Meeting Notice Committee o psychologist Khan Special Education (CSE) 24 9/6/2012 10 IEP District File Meeting Dated 9/6/2012 25 9/6/2012 1 Form District File Committee Meeting Information 26 9/5/2012 1 Form District File CSD Pupil Separatio Form 27 11/1/2012 2 Form Private School District Transcript Request Form School 28 11/1/2012 1 Letter S. D Elaine Acker Letter enclosing records

HEARING OFFICER EXHIBITS

1-Parent’s Request for Pendency. 2- District’s Opposition. 3-Parent’s Reply. 4-District’s Reply. A list of the Parent’s Exhibit are attached hereto:

Footnotes

[1] The record indicates that X was last testified in 2007 because the parent failed to provide consent for a re-evaluation in 2010 (Exhibit 19).

[2] The Child Support Team Summary indicated that the District was aware that X’s father had passed away and that his older brother and sister were residing out of the country.

[3] 8/11/15 1 Form District File High School Personal Data Questionnaire

[4] 8/11/15 1 Form District File Pupil Registration Form complete by parent

[5] 3 Report Private School File 2014-2015 Mid Semester (Spring) School