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Impartial Hearing Officer’s Findings of Fact and Decision
Case#
Student’s Name XXXXXX
Date of Birth: XXXXXX
District:
Hearing Requested By: Parent
Dates of Hearings: October 21, 2015
November 19, 2015
December 21, 2015
January 19, 2016
February 11, 2016
March 2, 2016
March 16, 2016
March 30, 2016
April 13, 2016
Hearing Officer: Ellen Abberbock, Esq.
Actual Record Close Date: August 5, 2016
NAMES AND TITLES OF PERSONS WHO APPEARED October 21, 2105
XXXXXXXX Attorney — District
XXXXXXXX Attorney — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED November 19, 2105
XXXXXXXX Attorney — District
XXXXXXXXXX Attorney — District
XXXXXXXXXX Special Education Director, Manhasset UFSD — District
XXXXXXXX School Psychologist — District
XXXXXXXX Attorney — Parents
XXXXXXXXXX Parent — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED December 21, 2015
XXXXXXXXX Attorney — District
XXXXXXXXX Special Education Director, Manhasset UFSD — District
XXXXXXX School Psychologist — District
XXXXXXXX Attorney — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED January 19, 2016
XXXXXXXX Attorney — District
XXXXXXXXXX Attorney — District
XXXXXXXXX Special Education Director, Manhasset UFSD — District
XXXXXXX School Psychologist — District
XXXXXXXX Attorney — Parents
XXXXXXXXXX Parent — Parents
XXXXXX Special Education Teacher, — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED February 11, 2016
XXXXXXXXX Attorney — District
XXXXXXXXXX Attorney — District
XXXXXXXXXX Special Education Director, Manhasset UFSD — District
XXXXXXXX Attorney — Parents
XXXXXXXXXXX Parent — Parents
XXXXXXXXX Guidance Counselor – — Parents
XXXXXXXX Social Worker- — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED March 2, 2016
XXXXXXXX Attorney — District
XXXXXXXXX Attorney — District
XXXXXXXXX Special Education Director, Manhasset UFSD — District
XXXXXXXX Attorney — Parents
XXXXXXXXX Educational Supervisor (via phone) — Parents
XXXXXXXX Clinician (via phone) — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED March 16, 2016
XXXXXXXX Attorney — District
XXXXXXXXX Special Education Director, Manhasset UFSD — District
XXXXXXXX Attorney — Parents
XXXXXXXXXX Parent — Parents
XXXXXX Special Education Teacher (via phone) — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED March 30, 2016
XXXXXXXXX Attorney — District
XXXXXXXXXX Special Education Director, Manhasset UFSD — District
XXXXXXXXX Attorney — Parents
XXXXXXXXX Student Team Manager (via phone) — Parents
XXXXXXX Special Education Teacher (via phone) — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED April 13, 2016
XXXXXXXX Attorney — District
XXXXXXXXX Special Education Director, Manhasset UFSD — District
XXXXXXXX Attorney — Parents
Impartial Hearing Officer’s Findings of Fact and Decision
This hearing was requested on June 15, 2015 by XXXXXXXXXX, Esq. on behalf of the Parents of the Student. The hearing was requested pursuant to Part 200.5(i) of the Regulations of the Commissioner of Education. The Parent maintains that the Student was not ready to graduate in June 2015 from the , New York Union Free School District (District) (Exhibit AA-3), that the District failed to provide the Student with an Individualized Education Plan (IEP) for the 2015-2016 school year (Exhibit AA3); that the District failed to provide a Free Appropriate Education (FAPE) to the Student for the 2015-2016 school year (Exhibit CC-4).as required by the Individuals with Disabilities Education Act (IDEA). The Parent seeks tuition reimbursement for all costs associated with the Student attending the XXXXXXXXXXXXXXXXXXX for the 20152016 school year (Exhibit CC-4).
On June 19, 2015 I was appointed by the District to hear the matter.
A Pre- Hearing Conference was held in this matter on October 21, 2015. Hearings were held on November 19, 2015, December 21, 2015, January 19, 2016, February 11, 2016, March 2, 2016, March 16, 2016, March 30, 2016 and April 13, 2016 pursuant to the IDEIA at 20 U.S. C. Section 1415 (f). A total of ten witnesses, over one thousand pages of testimony and thirty nine exhibits were presented.
On May 9, 2016, and May 25, 2016 the parties requested extensions in order to submit full and complete post-hearing memoranda. On June 1, 2016 a further extension was requested because District’s counsel had an unexpected arm fracture. This was followed by another extension request on June 10, 2016 due to confusion over the number of pages allowed for the brief. Both the Parent and the District requested a final extension on July 25, 2016 so that the over one thousand pages of testimony and thirty – nine exhibits could be fully reviewed in accord with due process. All extension requests were agreed to by both parties. I granted all extension requests as the extensions would not harm the Student and would allow the parties to present a full and complete case (See Hearing Officer’s Exhibit FF and Letter to Kerr, 22 IDELR 364 (OSEP 1994)).
A review of the record indicates that the transcript from the March 30, 2016 hearing runs from pages 902 through 1010. The transcript from the April 13, 2016 hearing runs from pages 902 through 974. In order to avoid confusion because of the duplicate page numbers testimony from the April 13, 2016 transcript will be referenced as Transcript at page xxx, testimony from April 13, 2016. It is also noted that the Parent’s closing brief included two copies of page sixteen (16).
Attached to the record and this decision are lists of the documents received into evidence. This decision is divided as follows: pages eight (8) through forty-four are a summary of the extensive testimony and evidence, pages forty-five (45) through seventytwo (72) are my findings of facts and conclusions of law, and pages seventy-two and seventy-three are my order.
Background
The Student turned eighteen on XXXXXX (Transcript at page 26). The Student was diagnosed with XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX (Transcript at pages 27 and 205), and classified by the District as XXXXXXXXXX (Exhibits 4, 6, 8 and 11). The Student was unilaterally placed by the Parents at the XXXXXXX on March 15 2011. On October 23, 2012 the Parent and District entered into a Stipulation of Settlement in which the District agreed to pay $6,500 per month towards the Student’s tuition at XXXXX until the Student’s expected graduation in June of 2015 (Exhibit 3-3). On June 15, 2015 the Parent filed for an Impartial Hearing arguing that the Student was not ready to graduate in June 2015 and therefore the District was responsible to provide a FAPE for the 2015-2016 school year which the District failed to provide. The Parent seeks tuition reimbursement of $12,000 per month (Transcript at page 586) for the Student’s unilateral placement at the XXXXXXXXXXXXXXX for the 2015-2016 school year (Exhibits AA and CC).
Position of the Parties
School District’s Position
The District maintains that they understood based on the parties Stipulation that the Student would graduate from XXXXX in June 2015 (Exhibit BB-9) and thus the Parents are estopped and have waived their right to seek further education for the Student from the District (Exhibit BB-12 and 13 and DD-14 and 15) (Transcript at page 26).
The District maintains that the Parent and XXXXX did not advise the District until the May 7, 2015 Committee on Special Education (CSE) meeting that Student would not be eligible to graduate in June 2015 (Exhibit BB-9).
The District maintains that the Parent and XXXXXXXXXXXX mislead the school district completely with respect to credits earned, the fact that the courses at XXXXXwere modified, the fact that the Student did not take sequences, and the fact that the Student did not take Regents as none of these facts were disclosed to the District (Transcript at page 930- Testimony from April 13, 2016).
The District maintains that the Parent’s placement of the Student at XXXXX put the Student in a program whose class credits and sequences did not expose the Student to the Regents exams needed for graduation from XXXXX (Transcript at pages 932 and 933-Testimony from April 13, 2013).
The District maintains that the Student earned twenty-two (22) credits from XXXXX which is sufficient to graduate (Exhibit BB-10) and thus the District has met its obligation to provide a FAPE to the Student (Exhibit BB-13 and DD-15) (Transcript at pages18 and 24).
The District maintains that XXXXX never advised them that the Student needed a Regents exam in order to graduate (Transcript at page 829).
The District maintains that XXXXXXXXXXXX as a boarding school that provides education to High School students is an inappropriate placement for the Student who has already earned a High School diploma (Exhibits DD-11 and GG-1).
The District maintains that XXXXXXX is an inappropriate placement because XXXXXX does not provide the Student with any needed academic instruction; does not address the Student’s psychological and transitional needs; and is too restrictive for the Student (Exhibit GG-1).
The District maintains that the Parent did not present sufficient evidence to support their claim for tuition reimbursement (Exhibit GG-1).
The District maintains that since the Parents withheld critical information such as the XXXXXXXevaluation; the fact that the Student did not have the proper sequences, courses or Regents exams to graduate from XXXXX; and did not communicate with the District regarding the Parent’s plans for the Student for the 2015-2016 school year that the equities do not favor the Parent’s claim for tuition reimbursement (Exhibit GG-2).
The District maintains that if it is found that a FAPE was not provided for the 2015-2016 school year, that the case be remanded to the CSE to develop an IEP for the 2016-2017 school year (Exhibit GG-30).
Parent’s Position
The Parent maintains that the District erred when it determined the Student was ready to graduate (Exhibit AA-3).
The Parent maintains that District erred in not developing an IEP for the Student for the 2015-2016 school year (Exhibit AA-3 and CC-4).
The Parent maintains that the District must determine an appropriate placement for the Student for the 2015-2016 school year (Exhibit AA-4).
The Parent maintains that the courses taken by the Student at XXXXXXXXXXXX did not make the Student eligible for graduation (Exhibit CC-3).
The Parent maintains that the District should have known from looking at the Student’s transcript what class the Student was receiving and that the classes did not qualify for Regents credit (Transcript at page 931-Testimony from April 13, 2016).
The Parent maintains that the XXXXXXXXXXXXXXX is an appropriate placement for the Student (Exhibit CC-4 and Transcript at page 33).
The Parent seeks tuition reimbursement for all costs associated with the Student attending the XXXXXXXXXXXXXXX for the 2015-2016 school year (Exhibit CC-4).
The Parent maintains that the District cannot bargain away the Student’s right to a FAPE through age 21 (Transcript at pages 28 and 33).
The Parent maintains that the District should have known based on the Student’s test scores that the Student would not be eligible for a Regents or Local diploma by June 2015 (Transcript at page 28).
Testimony and Evidence Presented at Hearing
The District called as its first witness XXXXXXXX, Executive Director of Special Education Programs and Services for the Public Schools. XXX. XXXXXXX testified that the Student arrived in the District in 2007 and was placed in the XXXXXXXX School in a day program (Transcript at 54). The Parents unilaterally placed the Student at XXXXX for 9th grade for the 2011-2012 school year . The District had no say in the placement and did not recommend placement at XXXXX (Transcript at 54, 55 and 56). Pursuant to a stipulation, the District paid for tuition at XXXXX for the 2011-2012 school year and for the summer of 2012. The Parent filed a Due Process Complaint for the 2012-2013 school year and unilaterally placed the Student at XXXXX for 10th grade (Transcript at 56). The Due Process Complaint was settled by stipulation and the District agreed to reimburse the Parents for tuition at XXXXX. The Stipulation covered September 2012 through June 2015 (Transcript at 57 and 59, Exhibit 3). The Stipulation ended in June 2015 because as discussed in creating the stipulation that was when the Student would earn a High School diploma (Transcript at 59). In Stipulation discussions, the Parents and XXXXXstaff never indicated that June 2015 was not the projected graduation date (Transcript at 60).
Pursuant to the Stipulation the District was responsible to hold annual IEP and reevaluation meetings The IEP was developed in case the Student wanted to return to the District or a public school placement. The District continually recommended XXXXX as the placement (Transcript at 61). On January 8, 2013, XXXXXXXXXX chaired the CSE reevaluation meeting for the Student. At that meeting at which the Student’s mother and XXXXX staff were present it was determined that XXXXX was going to provide the Student with a High School diploma at the end of June 2015. XXXXX staff did not indicate that the Student would not be ready to graduate in June 2015. The Student’s mother gave no indication that she did not believe the Student would graduate in June 2015 (Transcript at 64 and 65).
The IEP notes from that meeting indicate that the student will not receive a
High School diploma; the student will receive a high school diploma from XXXXX XXXXXXX (Exhibit 4) since this was unilateral placement by the Parents the Parents were to accept a diploma from XXXXX and not the District. XXXXX did not discuss the diploma requirements at this meeting (Transcript at pages 911, 917, and 918, Testimony from April 13, 2016).
The CSE meeting was memorialized in a Prior Written Notice sent to the Parents which indicated that XXXXX would be issuing a High School diploma to the Student in June 2015 (Transcript at 67, Exhibit 5-2). The Parents did not challenge the Prior Written Notice and continued to send the Student to XXXXX (Transcript at 68).
On June 21, 2013 the CSE met to conduct an annual review of the Student. The Parents indicated that the Student for 11th grade 2013-2014 school year would remain at XXXXX (Transcript at 68, 69 and 71). The Parents did not agree with the CSE recommended XXXXXX placement. XXXXX gave no indication either that the Student was not considered an 11th grader or that the Student would not receive a diploma at the end of the 2014-2015 school year (Transcript at 72). The Parents gave no indication that they did not believe the Student would earn a diploma at the end of the 2014-2015 school year (Transcript at 73).
On July 10, 2014 the CSE met for an annual review to plan for the Student’s 12th grade 2014-2015 school year. Both Parents were present at the meeting. The XXXXX staff via phone indicated that the Student had shown an expectation of graduating in June 2015. Neither the Parents nor XXXXX staff gave any indication that the Student was not on track to graduate in June 2015 (Transcript at pages 75, 81, 82, 83,269, 271 and 272). At this meeting XXXXX did not indicate that the Student was not completing sequences needed for a high school diploma or that the courses the Student was taking were not high school credit courses or that the Student was learning on a modified curriculum (Transcript at pages 913 and 914, Testimony from April 13, 2016). The District again recommended placement at XXXXX, but the Parents indicated that they would continue to place the Student at XXXXX. At the meeting it was stated that the Student was expected to graduate from XXXXX with a High School diploma in June 2015 (Transcript at 81, and 82, Exhibit 9). At this meeting the Parents did not state that they would not accept a diploma from XXXXX (Transcript at 82). The Parents did not respond to the Prior Written Notice dated August 13, 2014 (Exhibits 9 and 10) indicating that the Parents did not expect the Student to graduate in June 2015 or that the Parents would not accept a diploma from XXXXX (Transcript at 83).
On May 7, 2015 a re-evaluation meeting was held by the CSE with both Parents attending (Transcript at 84). The Student’s third quarter 2014-2015 report card (Exhibit
12) was reviewed at the meeting. XXXXX staff indicated that the Student was expected to pass the fourth quarter (Transcript at pages 87 and 94). The Official Transcript class of 2015 (Exhibit 13) was also reviewed at the meeting (Transcript at 89). XXXXXXXXXX did not request any further evaluations of the Student (Transcript at page 968-Testimony from April 13, 2016). After receiving information from XXXXX staff XXXXXXXXX marked in her handwriting the Official Transcript class of 2015 to indicate that the Student would receive a full credit rather than a half a credit for the personal finance and career readiness classes (Transcript at pages 91 and 95, Exhibit 13). The Student earned 7.75 credits in 9th grade, 4.75 credits in 10th grade, and 6 credits in 11th grade for a total of 18 credits (Transcript at pages 92, and 94, Exhibit 13). XXXXX staff gave no indication that the Student had not earned these credits (Transcript at 93 and 100). Neither XXXXX nor the Parents gave any indication that the Student would not earn 24 credits by the end of the school year (Transcript at 95). At this meeting XXXXX did not indicate that the Student was not completing sequences needed for a high school diploma or that the courses the Student was taking were not high school credit courses or that the Student was learning on a modified curriculum (Transcript at pages 914 and 919, Testimony from April 13, 2016). If XXXXXXXXXX had known that the Student was not earning high school credits or taking Regents exams which were required by XXXXX XXX would have stressed to the Parents the importance of choosing the CSE recommended XXXXX placement (Transcript at page 920, Testimony from April 13, 2016).
New York State requires a minimum of 22 credits for a High School diploma the Student had earned 24 and thus was eligible for a diploma. XXXXX is an independent High School recognized by New York State which allows XXXXX to issue and have their own criteria for high school diplomas (Exhibit 14, Transcript at pages 99 and 246). At the meeting the Parents and their attorney indicated they would not accept a diploma from XXXXX (Transcript at 96 and 101).
The Student’s 11th grade fourth quarter report card for the 2013-2014 school year indicates that the Student earned 6 credits and XXXXX staff never indicated that these credits were not earned (Transcript at 102, Exhibit 15). The Student’s 10th grade report card for the 2012-2013 school year indicates that XX earned 4.25 credits (Transcript at 104, Exhibit 16). XXXXX staff never indicated that these credits could not go towards a high school diploma (Transcript at 105,122, 123 and 130). The Student’s class of 2015 transcript shows that 22 credits were earned from 9th through 12th grades. There was no explanation from XXXXX as to why this transcript does not show the Student earning a half credit for cooking as shown in the transcript reviewed at the May 7, 2015 CSE meeting (Transcript at pages 106,107,119 and Exhibits 12, 17 and 20). XXXXX never discussed with XXXXXXXXXX about the Student earning a Regents diploma or taking Regents courses (Transcript at pages 109,110 and 247). The Student never attended the District’s recommended XXXXX program. XXXXX never indicated whether or not they were following the District’s IEP (Transcript at pages 109 and 110). On December 2, 2014 a letter was sent to the Parents inviting them to come to the District and meet with a vocational counselor from the XXXXXXXXXXXXXXXXXXX agency in order to assist the Student with available transitional services (Transcript at pages 112 and 113, Exhibit 18). The Parents’ did not respond to the letter. The letter was personally handed to the Parents at the May 7th, 2015 CSE meeting (Transcript at 114).
On March 31st, 2015 a Written Notice upon Graduation or Aging Out informing the Parents of agencies available after the Student graduates or ages out and seeking permission to share the Student’s evaluations with the agencies was sent to the Parents (Transcript at 116, Exhibit 19). The Notice was also personally given to the Parents at the May 7, 2015 CSE meeting (Transcript at 117). The Parents never responded to the letter that was mailed or indicated that the Student was not graduating (Transcript at 118). During the 2014-2015 school year the Parent’s never asked the District to find a residential placement for the Student for the 2015-2016 school year (Transcript at page 277).
The Student’s fourth quarter report card for twelfth grade for the 2014-2015 school year shows that the Student passed (Transcript at 119, Exhibit 20). On July 2, 2015 a Prior Written Notice summarizing the May 7, 2015 CSE meeting was sent to the Parents (Transcript at 120, Exhibit 21). The notice summarized the discussion held at the meeting that the Student had earned 24 credits and since 22 credits is the minimum needed, the Student had earned a high school diploma and XXXXX staff agreed (Transcript at 122). At the CSE meeting the Parents said they would not accept the diploma, but XXXXX staff never indicated that the Parents felt that the Student had not earned a diploma (Transcript at pages123 and 285).
XXXXXXXXX closed the May 7, 2015 meeting by indicating that the Student had earned XXX high school diploma and therefore the Student’s right to a FAPE would cease in June 2015 (Transcript at 124). The importance of reaching out to the transition agencies in order to meet the Student’s needs beyond high school was discussed at the May 7, 2015 CSE meeting. The Student’s mother did not mention that the Student had not taken any Regents which were required for a XXXXX diploma. XXXXXX from XXXXX also did not mention anything about a Regents diploma (Transcript at page 915, Testimony from April 13, 2016). No one from XXXXX stated that the Student was lacking the necessary Regents credits or sequences to earn a high school diploma (Transcript at page 938-Testimony from April 13, 2016). The Parents neither before or after the May 7, 2015 CSE meeting ever told XXXXXXXXX that the Student had not taken the proper sequences or Regents exams necessary for a diploma (Transcript at pages 939 and 940-Testimony from April 13, 2016).
In XXXXXXXXX opinion the Student earned enough credits for a high school diploma at XXXXX and after June 2015 the Student was no longer entitled to a FAPE (Transcript at pages 127 and 300). XXXXXXXX did not create an IEP for the Student for the 2015-2016 school year because it was XXXXXXXXX opinion that the Student had graduated (Transcript at pages 948 and 950-Testimony from April 13, 2016). XXXXXXXX testified that when a private school is issuing a diploma the District does not have to assess whether the courses the Student is taking at the private school would meet the District’s high school diploma requirements (Transcript at page 292). XXXXXXXXX never received a ten day notice from the Parents indicating that they were placing the Student in a residential placement for the 2015-2016 school year (Transcript at page 278).
On cross-examination XXXXXXX testified that when the Student first entered the District the Student was at the XXXXXXXX where the Student had been placed by the Port Washington School District (Transcript page 192). The Student was then placed in a New York State approved residential placement at the XXXXX School (Transcript at pages 144 and 194) because the Student needed a more restrictive environment (Transcript at page 265) The Student fell off a bike while at the XXXXX School after which the Parents removed the Student from the XXXXX School and the District provided Home Instruction to the Student (Transcript at pages 145,146 and 195). The XXXXXs school reported that the Student would provoke other students (Transcript at page 268). The Parents did not want another residential placement (Transcript at page 266). The Student was then placed at the XXXXX School. The Student was suspended because of fighting after which the XXXXX School notified the District that they could no longer service the Student (Transcript at pages 148 to 150 and 268).
The CSE then met in February 2011 to explore other placements including XXXXX for the Student. The District felt XXXXX was appropriate because it could provide the Student with any needed XXXXXXX supports (Transcript at page 294). In the interim the Student was receiving Home Instruction. The Parent then placed the Student at XXXXX (Transcript at 150). The District was concerned about the education the Student would receive at XXXXX (Transcript at page 960-Testimony from April 13, 2016). XXXXX is a state approved private high school but not a state approved special education school (Transcript at page 296). The Parents never explained why they choose XXXXX (Transcript at page 294). XXXXX staff never indicated to the District that the school was not sufficiently restrictive to meet the Student’s needs (Transcript at page 267). An August 25, 2011 IEP amendment highlights the agreement made between the District and the Parent regarding the Parent’s unilateral placement of the Student at XXXXX (Transcript at page152, Exhibit A). XXXXXXXXX stated that had the Student attended the District recommended XXXXXXXXXXXXXXX placement the Student would have been able to obtain a Regents diploma (Transcript at page153). An 8:1:1 placement was recommended for the Student for July and August of 2011 and a 6:1:1 placement for the 2011-2012 school year when the Student was in 9th grade (Transcript at page 154). XXXXXXXXX stated that with test accommodations and completion of courses the Student would have had the opportunity to take the Regents (Transcript at page 156 and 170). XXXXXXXXX did not know if the Student would pass the Regents (Transcript at pages156 and 160).
In order to get a local diploma a student must sit for a Regents exam and score between a 55 and 64, or pass the English Regents and obtain a 42 on another Regents (Transcript at pages157, 159,166 and 276). A local diploma requires four years of English, four years of Social Studies, one year of science and three years of math (Transcript at pages160 and 166). Twenty two credits are needed for a diploma (Transcript at page166).
At the end of eighth grade the Student was writing at a XXXXXX grade level and could only complete XXXXXXX math problems with teacher assistance (Transcript at pages 169, 203 and 204).
The Student was found eligible for extended school year (ESY) services because of XXXXXXXXXXXX based on level, abilities and needs (Transcript at pages 195 and 196). The severity of a student’s disability is also a consideration in determining the need for ESY services (Transcript at page 201). An 8:1:1 class and an individual aide was recommended to help deescalate the Student’s behaviors (Transcript at page 202, Exhibit D). The Student could be aggressive, but never left without permission (Transcript at page 203). The Student received XXXXXXXXX in eighth grade to help with recall, comprehension, sequencing and verbal exchanges (Transcript at page 204). XXXXXXXXX believed that the Student could sit for a Regents exam and obtain a Regents diploma with program modifications and testing accommodations even if the Student was functioning on a XXXXX grade level (Transcript at pages 206, 216, 217, 218, 219).
For the Student’s ninth grade 2011-2012 school year the District recommended a 6:1:1 placement (Transcript at page 212, Exhibit A). New York State recommends a 6:1:1 class size for students whose management needs are highly intensive and require a high degree of individualized attention and intervention (Transcript at page 214, Exhibit C). In tenth grade the CSE felt the Student could still obtain a Regents diploma. XXXXXXXXX did not ask XXXXX at the CSE meeting held on January 8, 2013 whether the Student had taken any Regents exams (Transcript at page 215, Exhibit 4), but there was a discussion regarding what XXXXX would need in order to provide a high school diploma (Transcript at page 216).
According to the Student’s official final transcript (Exhibit 13) the Student earned 4.25 credits in tenth grade including one credit for Global Studies after the Student had already passed Global Studies (Transcript at pages 226, 227 and 231). The Student took health twice and got a one-half credit each time (Transcript at page 228). The Student took Life Skills in ninth, tenth and eleventh grade (Transcript at page 229). XXXXX never indicated that the Life Skills class would not count towards a high school diploma (Transcript at page 263). The Student had three years of math including one year of consumer math (Transcript at page 230). XXXXXXXX testified that if the Student had attended the District recommended XXXXX program even starting in the eleventh grade the Student could have received a Regents diploma (Transcript at page 232).
A student has to pass five Regents exams in order to graduate; one in Math, one in Science, two in Social Studies and one in English (Transcript at page 233). XXXXXXXXX did not know if the Student could have earned a Regents diploma by the end of the twelfth grade if the Student had attended the District recommended XXXXX placement (Transcript at page 234).
XXXXXXXXX testified that when the Parents signed the Stipulation dated October 23, 2012 (Exhibit 3) they guaranteed that the Student would be graduating with a diploma by 2015 (Transcript at page 236). The Stipulation states that the Student is expected to graduate from the XXXXX (Transcript at page 237). XXXXXXX did not state whether or not XXX had asked XXXXX if they had administered Regents exams to the Student (Transcript at pages 238 and 239). However, XXXXX never indicated to XXXXXXXX that they wanted to administer Regents exams to the Student (Transcript at pages 250-251).
Other student’s from the District who like the Student have a verbal ability in the XXXXXXXX percentile, phonemic awareness in XXXXXXX percentile and comprehension in the XXXXXXXXX percentile have graduated with Regents diplomas (Transcript at pages 248, 249 and 921-Testimony from April 13, 2016). XXXXXXX believed that even though the Student only scored in the XXXXXX percentile on the WIAT (Exhibit 4) the Student could still obtain a Regents diploma (Transcript at page 964-Testimonny from April 13, 2016). XXXXX never indicated to the District that the credits earned by the Student were not high school level credits or the proper subject sequences that would go towards a high school diploma (Transcript at pages 252,253, 259, 260, 262,264, 271 and 274). XXXXX never indicated to the District which Regents exams the Student was required to take in order to earn a high school diploma (Transcript at page 261). The Student was always identified as being part of the XXXXX class of 2015 (Transcript at page 272). XXXXX never indicated that the Student required a residential placement or needed to continue schooling after the 2014-2015 school year in order to earn a high school diploma (Transcript at page 279). XXXXXXX testified that at one of the meetings there was a discussion on the difference between a District Diploma and a XXXXX diploma (Transcript at page 280).
The District presented no further witnesses and rested its case (Transcript at page 302).
The Parent called as its first witnesses, XXXXXXXX, special education teacher at XXXXX, who appeared in person. XXXXXXXX had the Student for math, science and career development at the end of the Student’s eight grade year (2010-2011) (Transcript at pages 317 and 321). The Annual Review Report from 2011 (Exhibit G) did not indicate that the Student was receiving a modified curriculum (Transcript at page 367). At that time the Student would take frequent breaks, going outside after ten to fifteen minutes of class and “shoot hoops” in order to get into a frame of mind where the Student could return to class. This behavior is noted in the annual report as the Student is working on the ability to get into the classroom to be available for learning (Transcript at page 366, Exhibit G-4). XXXXXXX would try to build a rapport with the Student in order to get the Student back into class. When excited the Student would yell profanities, get loud and curse at students and staff (Transcript at pages 319-322). The Annual Review Report from 2011 (Exhibit G) indicated that the Student would be taking Regents exams (Transcript at pages 367 and 377). However, the Student never sat for Regents exams or Regents Competency tests (Transcript at page 377).
The Student XXXXXXX academically, was very XXXXXXXX, did not like to be called on and engaged in XXXXXXX (Transcript at page 321 and 327). The staff used collaborative problem solving with the Student using empathetic listening in order to get out the Student’s concerns and XXXXXXXX in order to help the student deal with whatever is upsetting them (Transcript at pages 322 and 323).
The Student struggled with the WIAT-III testing. The Student was very XXXXXX during testing and would ask how he/she was doing. If the Student thought the Student got a question wrong the Student would stay focused on the question and not move on (Transcript at pages 323,324 and 327). The Student’s skills were XXXX. The Student placed in the XXXXXXXXXXXX grades in math (Transcript at page 324). The Student had XXX reading comprehension, fluency and XXXXX decoding skills. The Student had XXXX writing skills and XXXXXXXXX focusing thoughts in order to write sentences (Transcript at page 326). The Student was functioning on a XXXXX grade level (Transcript at page 327). There was an outside chance the Student could get a Regents diploma but it would take a lot of work and the Student’s XXXXX and XXXXXXX issues would have to be dealt with before working on needed skills (Transcript at page 329). XXXXXXXX never shared with XXXXXXXXX the fact that with a lot of work the Student had an outside chance of getting a Regents diploma (Transcript at page 937Testimony from April 13, 2016).
In eleventh grade for the 2013-2014 school year XXXXXXXX taught the Student earth science, consumer math, life skills and career development (Transcript at page 329). XXXXXXX stated that that the Student had matured a bit from the eighth grade, but was still XXXXXX (Transcript at page 397). The Student would make fun of and “needle” the other student’s in the classroom causing the students to storm out of the classroom (Transcript at pages 330 and 331). XXXXX staff would try to develop strategies to help the Student reduce XXXXXXXX and stay in the classroom. The earth science curriculum was XXXXXX for the Student. The words and text were XXXXXXX and the Student was given XXXXXXX. This was the XXXXXXXX the Student took earth science. The Student took earth science in tenth grade and XXXXXXXX (Transcript at pages 331, 332, 333 and Exhibit 17). The Student was able to grasp about XXXXXXXX percent of the earth science curriculum and received a grade of XX based on the XXXXXX work the Student was given (Transcripts at pages 333 and 334). The Student’s report card did not reflect that the earth science curriculum had been XXXXXXXX (Transcript at pages 360, 361, and 937-Testimony from April 13, 2013; Exhibits 15 and 17). The Student did not take the earth science Regents (Transcript at page 394). XXXXXXXX did not tell XXXXXXXXXX that the Student had only grasped XXXXXXX percent of the earth science curriculum or that the curriculum had been XXXXX (Transcript at page 937-Testimony from April 13, 2016). The Student had XXXXXXXXXX ideas for a career. The Student wanted to be an entrepreneur go to Wharton Business School and own a company (Transcript at pages 335 and 336). The Student was XXXXXXXXXXXXXXXXXX when doing career searches. The Student had a XXXXXXXXXXX throughout eleventh grade and XXXXXXXXX to work independently (Transcript at page 337).
The Student was XXXXXXXXXX towards peers, would say he/she was going to “XXXXXXXX”, and would XXXXXXXXXXXXXX (Transcript at page 336). The Student was frequently removed from the classroom. The Student would get XXXX and XXXXX and XXXXXX XXXXX others at XXXXXXXXXXX (Transcript at pages 337 and 338).
The Student had XXXXXXXXX with academics in eleventh grade but did well in life skills (Exhibit H). The Student did well in cooking and academic skills such as planning, budgeting, and pricing, inventory and buying were taught through the Students cooking activity. The Student was taught consumer math through cooking and Regents’ skills such as proportions and percentage were taught through cooking. The Student neither took nor attempted to take any Regents exams in the eleventh grade (Transcript at pages 340, 341 and 342). XXXXXXXXXX felt that the Student was XXXXXXXX to take any Regents exams because of the Student’s XXXXXX and XXXXXXX to get through the curriculum (Transcript at pages 342 and 343). The Student received an XX in consumer math (Transcript at page 343).
XXXXXXXX advised the CSE at the July 10, 2014 IEP meeting that the Student was reading on an XXXXXXXX school level (Transcript at page 345). There was a discussion that based on the Student’s skills, XXXXX and XXXXX in classes the Student would not be able to take an English or U.S History Regents (Transcript at page 386). There was a further discussion that the Student had not taken any Regents exams and the committee was told that the Student could get a diploma from the XXXXX since XXXXX as a private school was allowed to issue its own diplomas. XXXXXXX assumed a type of local diploma was meant but had never heard of XXXXX giving such a diploma (Transcript at pages 346 and 385). XXXXXXX did not state at the meeting that XXXXX would not be issuing a diploma to the Student in June 2015, but did not know if XXXXXXX, the social worker or XXXXXXX, the transition coordinator stated that the Student would not be receiving a XXXXX diploma (Transcript at page 388). At that time the Student was not eligible for a local diploma because the Student had not taken any Regents or Regents Competency exams (Transcripts at pages 346 and 347). The Annual Review Report from 2014 (Exhibit H) did not indicate that the Student was receiving a XXXXXXXX curriculum (Transcript at pages 364, 374 and 376).
The Student was given the WIAT-III by XXXXXXXXXX in April 2015 and did very XXXXXX scoring in the XXXXXXXXXXX percent in all areas except verbal expression (Transcript at page 347, Exhibit I). XXXXXXXX indicated that the test results should be interpreted with caution as they may not be an accurate reflection of the Student’s achievement due to the Student’s XXXXXXXX but did not state in what areas the Student would show a XXXXXX achievement (Transcript at pages 368 and 372, Exhibit I-2). In twelfth grade XXXXXXXXX had the Student for personal finance, which the Student enjoyed because of the utility of money, and health (Transcript at pages 350, 351 and 382). The Student was still XXXXXXX in twelfth grade but worked better with peers in activities like cooking. The Student took no Regents exams in twelfth grade and was never given any State assessments. The Student was not an XXXXXXXXXXXX Student (Transcript at pages 351thru 353).
The CSE convened again on May 7, 2015 and the XXXXX transition coordinator was present at the meeting. XXXXXXXXX expected that the District would have an IEP and the Student would be continuing with school until the IEP goals were met or until 21 (Transcript at pages 352 and 357; Exhibit 11). Instead, XXXXXXXX stated that the Student had enough credits to graduate and the District could not prevent the Student’s graduating (Transcript at pages 353 and 354). XXXXXX did not mention that the Student did not have the proper credit and subject sequences and had not taken any Regents or Regents Competency tests in order to graduate (Transcript at page 362). However, according to XXXXXX, XXXXXXXX, the social worker from XXXXX did mention that the Student did not have enough Regents credits to graduate (Transcript page 363). XXXXXXXX and XXXXXX had decided that the Student was XXXXX and would not be XXXXXXXXXXXX to sit for Regents exams, but did not mention this at the meeting (Transcript at page 395) XXXXXXXXXX felt that a XXXXXXXX track of study would be best for the Student and that the Student was not prepared to graduate (Transcript at pages 353, 354 and 378). XXXXXXX was hoping the Student would return to XXXXX, but did not go into the meeting anticipating a recommendation for a residential placement (Transcript at page 379). The Student was still XXXXXXXXX in reading, math and problem solving and XXXXXXXXXXX on the paraprofessional to XXXXXXX problem solving (Transcript page 355). XXXXXXX was aware that the Student’s mother expected the Student to be continuing school at XXXXX (Transcript at pages 398 and 399). XXXXXXXX felt that the Student would XXXXXXXXX to sit for a Regents as the Student’s XXXXXXXX and XXXXXXXXX would cause the Student to XXXXXXXXXXXXXXX the test (Transcript at pages 399 and 400), but XXXXXXXX felt that it was not his place to advise the CSE of this fact (Transcript at page 401).
The Parent called as its second witness, XXXXXXX, guidance counselor for XXXXX who appeared in person. It was XXXXXXXX job to ensure that diploma requirements were met, to provide and do scheduling for the XXXXX located in XXXXXXXXXXX (Transcript page 415). In New York a Regents diploma requires a total of 22 credits four credits in English, four credits in History, three credits in Math, three in Science, two in gym, one in a foreign language, one credit in art or music, a halfcredit in health and three and a half elective credits and five Regents exams with a 65 or above. A local diploma has the same requirements except that a 55 or higher must be gotten on the exams, or with the safety net option a 45 or better on an exam as long as there is 65 or better on another exam (Transcript page 416). If the student is state assessed the student can receive a CDOS career certificate. If the student is alternately assessed they can receive an SACC. XXXXX does not issue any other types of diplomas (Transcript pages 417, 420 and 469).
The Student would not qualify for a Regents or local diploma because the Student’s transcript does not reflect that the Student took any Regents. The Student was not XXXXXXXXXXXXXX (Transcript pages 419 and 420).
The District never called XXXXXX about what XXXXX required for a diploma nor was XXXXXX asked to attend any CSE meetings to talk about what XXXXX required for a diploma (Transcript pages 420, 421 and 463). XXXXXXX knew that the Student had not been taking Regents exams and was not going to get a Regents diploma. The Student also didn’t qualify for a local diploma since the Student did not take any Regents exams (Transcript page 423).
On cross-examination XXXXXXXXXX testified that the Student did not graduate in 2015 but according to the 12th Grade Transcript (Exhibit 17) was listed as a member of the class of 2015 and it was an error not to change that date (Transcript at pages 424, 425 and 453). All 7.25 credits earned in ninth grade, and all 3.25 credits earned in tenth grade and all 6 credits earned in eleventh grade and all credits earned in twelfth grade could be counted towards a high school diploma (Transcripts at page 426). Despite earning 22 credits the transcript does not indicate that the Student did not earn enough math, English or science credits to earn a high school diploma (Transcript at page 433). The transcript indicates that the Student never took a Regents exam (Transcript at page 471). At the end of eleventh grade not having taken any Regents exams it would have been impossible for the Student to graduate with a Regents or local diploma by the end of twelfth grade (Transcript at pages 435, 439 and 440). It should have been clear to the CSE from reading the 9th, 10th, and 11th grade report cards that the Student was not going to receive a Regents diploma (Transcript at pages 462 and 463).
Prior to the July 7, 2014 CSE meeting, XXXXXXXX told XXXXXXXXX that based on the Student’s eleventh grade transcript the Student could not earn a high school diploma at the end of twelfth grade because the Student did not have the required class sequences, credits and Regents exams (Transcript at pages 438,445 and 448). XXXXXXXX responded that the Student was XXXXXXXXXXXX for a Regents exam (Transcript at page 448). However, there is no indication that XXXXX attempted to give the Student Regents exams (Transcript at page 468). The Student’s transcript does not indicate that the Student went to summer school (Transcript at pages 441,442, 443 and
471) but summer school should have been recommended at the end of eleventh grade (Transcript at page 442). Prior to twelfth grade XXXXXXXXX recommended that the Student take courses to fulfill the requirements for a Regents diploma such as living environment for science, English, Global 2, government and economics. Even with these courses the Student still would have been XXXXXXXX (Transcript at pages 446 and 447).
In the spring of 2015 XXXXXXXXX discussed CDOS and XXXXXXXXX with the Student’s parents. XXXXXXXXXX advised the parents that the Student did not have the necessary course sequences to graduate and had not taken any Regents (Transcript at pages 449, 450 and 469). XXXXXXXXX never communicated this or any other information to anyone in the District (Transcript at pages 453, 454 and 470). XXXXXXX thought that the Student would return to XXXXX for the 2015-2016 school year and proposed courses that would help fulfill requirements towards a Regents diploma (Transcript at page 455). The Student could have earned a Regents or local diploma had the Student been exposed to Regents exams and taken the right credits. XXXXXXXX never spoke to anyone at XXXXXXXXXX about the Student (Transcript at page 458).
Before the May 7, 2015 CSE meeting XXXXXXX told XXXXX that the new plan for the Student was to go for a XXXXXXX (Transcript at page 459 and 460), however, the Student had no credits or internships towards a XXXXXXX and the District had not asked for a change to XXXXXXX (Transcript at page 465).
XXXXXXX was aware that the Student required XXXXXXXXX for all subjects and would be XXXXXXXXXXXXXXXXX to take a Regents (Transcript at page 464).
The Parent called as its third witness, XXXXXXXXXXX, social worker and therapeutic and site director at XXXXX, who appeared in person. XXXXXX testified that she first met the Student in May 2010 at the screening process (Transcript at page 477). Another XXXXX staff member felt that the Student was appropriate for the XXXXX program. During the 2011-2012 school year there was a discussion that the Student should be XXXXXXXXXXX but it did not occur (Transcript at pages 479,505 and 523). XXXXXXXXX felt that the Student was not appropriate for the XXXXX program because the Student presented with more XXXXXXXXXX issues than XXXXXX issues (Transcript at pages 481,543 and 546). XXXXXXXXX provided the Student with the mandated IEP XXXXXXXXX of three individual and two group sessions a week from November 2013 through June 2015. The Student was also in XXXXXXX office every day for XXXXXXXXX (Transcript at pages 482 and 483).
When XXXXXXXX first met the Student the Student was verbally and physically XXXXXXXXXX. It was difficult to XXXXXXXX the Student. The Student had to be XXXXXXXXXXXX from the other students because the Student would XXXXXXXXX the other Students. The Student had XXXXXXXX and XXXXXXXX. The Student required XXXXXXXXXXX and could XXXXXXXXXXX other students (Transcript at page 484). The teacher would provide instruction to the Student in XXXXXXXX and the paraprofessional would XXXXXXXXXXX for the Student (Transcript at page 485). XXXXXXX tried to develop trust and rapport with the Student in order to overcome the Student’s XXXXXXXXXXX. The Student was XXXXXXXXXXX and XXXXXXXXX information and thus XXXXXXXXXX for a Regents exam (Transcript at page 486). The Student could XXXXXXX independently, would XXXXXXXXXX, and was XXXXXXXXXXXX and XXXXXXXXX to XXXXXXXXX (Transcript at page 487). The Student’s ability XXXXXXXXXXXXXXX was XXXXXXX (Transcript at page 489).
XXXXXXXXXX attended the CSE meeting on May 7th, 2015 at which the District asked if the Student had completed the required credits and courses and the District deemed that the Student had completed the necessary credits and courses to graduate (Transcript at page 495 and 499). XXXXXXXXX was stunned by this decision but did not object because XXXXX felt it was not XXXXXX place because the Student’s mother and attorney were present at the meeting (Transcript at page 549). The District did not ask what sequences the Student had fulfilled (Transcript at pages 500 and 538). XXXXX felt that the Student had sat in on the courses but had not taken any Regents which are needed for a diploma from XXXXX (Transcript at pages 495, 496 and 501), but this was not expressed to the District (Transcript at pages 515,520 and 544). The District did not ask XXXXX if the Student had taken any Regents (Transcript at pages 519 and 537) or how the Student could take Regents if the Student was functioning on a XXXXXXXXXXXX grade level (Transcript at page 539). The Student refused to attend summer school in 2014. The Student was taking XXXXXXXX classes because the Student could XXXXXXXXXXXX for a Regents exam (Transcript at pages 501 and 502), but the XXXXXXXXX classes were not reflected on the Student’s transcript (Transcript at page 518).
XXXXX staff and the Parents felt that the Student was not ready to graduate because the Student was XXXXXXXXX and had XXXXXXXXXX work experiences outside of the school (Transcript at pages 498 and 505). XXXXXXXXX expected that the District was going to provide additional educational and transitional services to the Student (Transcript at page 503). XXXXX did not recommend any other placements for the Student because they felt the Student would be returning to XXXXX and would go to XXXXX where there was a transitional program (Transcript at pages 506 and 524). XXXXX did not recommend a residential placement for the Student (Transcript at pages 526 and 528). After the meeting the Parents indicated to XXXXXXXXX that they would seek legal advice, but gave XXXXXXXX no indication as to where they would place the Student for the 2015-2016 school year (Transcript at pages 549 and 550).
XXXXXXXX did not recall the specifics of her discussion with XXXXXXX about the Student’s credits (Transcript at pages 499 and 548). XXXXXX summarized the Student as XXXXXXXX (Transcript at page 506).
On cross-examination, XXXXXXX testified that for the 2014-2015 school year the Student started to develop XXXXXXX and XXXXXXXXX and was XXXXXXXXXX learn, had made XXXXXXXXXX progress (Transcript at pages 512, 520 and 529), but had XXXXXXXXXXXX academically and XXXXXXXXXX to be able to take a Regents (Transcript at page 542). XXXXX never used the IEP suggested testing accommodations to administer a Regents exam to the Student (Transcript at page 533) because the Student was XXXXXXXXXXXXXX the Regents exams (Transcript at pages 536, 538 and 539).
The Parent called as its fourth witnesses XXXXXXXXX, the Student’s XXXXXX who appeared in person. XXXXXXXXX testified that the Student received XXXXXX XXXXXXXXX services of XXXXXXXXXXX and XXXXXXXXX because the Student was XXXXX and had XXXXXXXXXXXXX (Transcript at page 551). At age four the Student was diagnosed with XXXXXXXXXXXXXX and XXXXXXXXXXX XXXX (Transcript at page 553). In pre-school the Student received a XXXXXXXXX. In first grade the Student was in a regular class had a XXXXXXXX and XXXX math and reading XXXXXX and XX and XX services (Transcript at pages 552 and 553). In the middle of second grade the Student was placed in XXXXXXXX setting. In the third grade the Student was placed at the XXXXX XXXXX School. The Student remained at XXXXX until October 2008, the Student’s seventh grade year, when the Student’s ability to XXXXXX and not XXXXXXXXX. It also became XXXXXXXXXXX the Student at home (Transcript at pages 554 and 555).
In August 2008 the Parents and Student moved to Manhasset. The CSE met and recommended that the Student continue at XXXXXXX (Transcript at page 556). The Student was asked to leave XXXXXXX due to the Student’s XXXXXXXX. The CSE reconvened and recommended placement at the XXXXXXXX School for XXXXXXXX and XXXXXXXX children (Transcript at page 558). The Student remained at XXXXXX until May 2010 when a bike riding accident with another student resulted in a broken arm to the Student. XXXXXXX felt that there was a lack of supervision at XXXXXXX (Transcript at pages 558, 559 and 853). The District then recommended placement at the XXXXXX School. The Parent agreed to this placement only because the Parent’s first choice, XXXXX, was not yet a State approved school (Transcript at page 565). The Student was at the XXXXX School for four months and then in January 2011 was kicked out because of the Student’s XXXXXXX and XXXXXX made to staff and other students (Transcript at pages 560 and 561). The District then provided XXXXXXXXX to the Student until May 2011when the District recommended that the Student be placed at XXXXXXX (Transcript at page 562). The Parent did not approve of the XXXXXXX placement because of a padded time-out isolation room which looked like a locked jail cell (Transcript at pages 562, 563 and 768). However, the Student’s IEPs contained no provision for a XXXXXXXX (Transcript at page 923 and 924, Testimony from April 13, 2016). The Parent also did not approve of the XXXXXXX placement because there were only two or three other students in the Student’s age range (Transcript at pages 844, 859 and 860). However, the District recommended placement was for a 6:1:1 placement which meant six students of the same age not multi-grade (Transcript at page 924, Testimony from April 13, 2016).
The Parent then applied to the XXXXX and entered into a Stipulation of Settlement with the District for the District to pay a portion of the XXXXX tuition for one year (Transcript at pages 563 and 564). After the year the Student continued at XXXXX, despite the District’s attempt to discourage the Parent from placing the Student at XXXXX (Transcript at pages 773 and 851) because the District felt that XXXXX coasts students through and is not academically aggressive with Students (Transcript at page 865). The District again recommended a XXXXXX placement. The Parent rejected this placement and the Parties entered into another Stipulation of Settlement in which the District agreed to pay $6,500.00 per month as part of the XXXXX tuition for the 20122013, 2013- 2014 and 2014- 2015 school years (Transcript at pages 565, 566,769, and 770, Exhibit 3). The Parent understood that they could have placed the Student at XXXXXXXXXX during any of the above mentioned school years (Transcript at page 772). XXXXXXXX did not ask the District for a residential placement for the Student because XXXXXXX was hopeful that the Student’s XXXXXX would improve which would help the Student XXXXXXX academically (Transcript at page 845). XXXXX was also fearful of residential placements after the Student’s bad experience at the XXXXXXX School (Transcript at pages 853 and 854).
The Stipulation of Settlement covered the Student until June 2015 when it was expected that the Student would graduate (Transcript at pages 566 and 567, Exhibit 3). The Parent felt that the Stipulation meant that if it was appropriate for the Student to graduate or if the Student had enough credits the Student would graduate in 2015 (Transcript at page 575), but if the Student was not ready to graduate the Student would still receive educational services from the District (Transcript at page 846). In the Student’s 2014-2015 school year at XXXXX the Parent realized that the Student probably would not graduate and obtain a Regents diploma. The Parent felt that the Student’s XXXXXXXXXXXX with the Student’s academics. The Parent did not see the Student’s report cards prior to 2015 and did not know the requirements for a Regents or local diploma. However, the Parent testified on cross-examination that that XX had seen the Student’s yearly transcript (Transcript at page 774). XXXXX felt that the Student’s XXXXXX in 9th grade earth science and XXXXXXX from English 10 and global 2 were self-explanatory as the Student’s academic abilities are XXXXXXXX (Transcript at page 776). XXXXXX recognized that the Student might not have had enough credits or skills to graduate at the end of the 2014-2015 school year but he never discussed this or the fact that the Student had not taken any Regents exams with the District (Transcript at pages 780,781,788, 790 and 791). XXXXXXXX also never had a discussion with XXXXX about what the Student needed in order to graduate from XXXXX in June 2015 (Transcript at pages 818 and 819).
The Student made XXXXXXXX progress academically and XXXXXX progress socially at XXXXX. The most progress was made in the Student’s last year at XXXXX as the Student could XXXXXXX the Student’s XXXXXXXXXXX (Transcript at pages 567, 568 and 569). The Student was on medications while attending XXXXX and the medications changed every year. The Student saw a XXXXXXX and XXXXXXXX while at XXXXX (Transcript at pages 572, 573 and 574). The Student attended summer school except for the summer of 2014 because the Student’s XXXXXXXXXXX and the Parent was uncomfortable sending the Student to summer school. The Student has lived solely with his father, XXXXXXXXX, since 2013 (Transcript at pages 576 and 867).
At the July 10, 2014 CSE meeting to discuss the Student’s twelfth grade year no one asked XXXXXXXX if the Student was taking Regents exams or what XXXXX required in order for the Student to graduate or how the Student was progressing academically and XXXXXXXX. These questions were asked of the XXXXX educational staff (Transcript at pages 832 and 833). XXXXX staff did not state whether the Student needed Regents exams to graduate (Transcript at page 858).
The Student told XXXXXXXX that the Student was not taking Regents exams (Transcript at pages 816 and 834). XXXXXXX further learned sometime during the Student’s 2014-2105 senior year at XXXXX that the Student was not taking Regents exams and learned in May of 2015 that the Student was not going to receive a Regents diploma, although it was self-evident to XXXXXXXXXX because of the Student’s XXXX XXXXXXXX ability that the Student could not sit for Regents exams (Transcript at pages 569, 784 and 835). XXXXXXX did not share this information with the District because XX felt it was self-evident based on the Student’s test scores and XXXXXXXX in the classroom (Transcript at pages 816 and 835). When the Student was in tenth and eleventh grade the Student’s XXXXXXX at home was XXXXXXX. The Student would become XXXXXX, XXXXX and XXXXXX and say XXXXXXXXXX things to younger siblings if the Student XXXXXXXXX the Student wanted (Transcript at page 570). The Parent refused to place the Student back in a residential setting because of the Student’s XXXXXXXXXXXXXX School. The Parent felt that the Student would not perform better at any other school (Transcript at page 571).
The Parent did not communicate with the District after receiving the District’s December 2, 2014 letter stating that the Student had been referred to XXXXXX (Transcript at page 790, Exhibit 18) but was going to have an attorney apply for XXXXXXXXXX benefits for the Student (Transcript at page 870). In November 2014 the Student’s mother discussed with XXXXX that she felt that the Student was XXXXXXXXXXX college and preferred the idea of a XXXXXX program, but XXXXXXX was not aware of this conversation (Transcript at pages 801 thru 803; Exhibit 24). In February 2015 the Student’s mother discussed with XXXXX that the Student would go to the XXXXX XXXXXX location for the 2015-2016 school year but XXXXXXXX was unaware of the mother’s conversation with XXXXX (Transcript at pages 797 and 798, Exhibit 23). However, these discussions that the Parents were contemplating returning the Student to XXXXX for the 2015-2016 school year were not shared with the District (Transcript at pages 809 thru 811, Exhibit 25). XXXXXX would communicate with XXXXX at least once per week by phone when the Student XXXXXXX. The discussions concerned the Student’s XXXXXXXX, not graduation (Transcript at pages 834, 855 and 868). It is noted for the record that XXXXXXXX attorney, XXXXXXX, was not representing the Student’s mother in this matter (Transcript at page 841).
XXXXXXXX did not contact the District after receiving after the District’s Notice upon graduation or aging out to tell the District that the Student was not ready to graduate or did not have sufficient credits to graduate (Transcript at page 820, Exhibit 19).
At the CSE meeting on May 7th, 2015 the Parent expected the CSE to recommend an XXXXXXXXXX placement for the Student because the Student was functioning on a XXXXX grade level. The Parent found it disturbing when at the meeting the CSE said the Student had twenty-two credits and would graduate (Transcript at page 577). The Parent did not say anything at the meeting about the Student not having completed the necessary sequences to earn a high school diploma (Transcript at page 787), nor did the District ask about course sequences, Regents exams or what was required by XXXXX to grant a diploma (Transcript at page 847). When XXXXXXXX expressed at the meeting that XX did not feel it was appropriate for the Student to graduate, the District responded by reviewing the credits the Student had taken and indicated that it would be more appropriate for the Student to be placed with XXXXXXX than an academic setting (Transcript at page 866). The Parent also did not state at the meeting that XXX was having a XXXXXXXXX evaluation done on the Student which had started in April 2015 (Transcript at pages 792 and 921, Testimony from April 13, 2016, Exhibit P). The Parent did not send a copy of the completed XXXXXXXX evaluation, which was received by the XXXXXXX about eight weeks after the May 7th, 2015 CSE meeting (Transcript at pages 850, 859 and 870), to the District (Transcript at page 793). The XXXX evaluation did not recommend a XXXXXXX placement (Transcript at page 795, Exhibit P-17). However, in a feedback session on May 21st, 2015 (Transcript at page 858) with the doctor who performed the XXXXXXXX evaluation, XXXXXX, the Parent was advised that a XXXXXXXX placement would XXXXXXXXXX for the Student (Transcript at pages 823 and 825).
The XXXXXXXX recommended that the Student be placed in a XXXXXXXX XXXXXX setting with a ratio of six to eight students with one XXXXXX teacher and an
XXXX. The program should use XXXXXXXXXXXXXXXXXXXXX. The Student should be provided XXXXXXXXXX age twenty-one (21) in order to help XXXXXXXX and XXXXXXX functioning (Transcript at pages 823 and 825, Exhibit P). XXXXX discussed with the Parent that the Student was XXXXXXXXX and this affected the Student’s ability to XXXXXXX and XXXXXXXX academically (Transcript at page 825). The District did not discuss the Student’s XXXXXXXXX deficits at any of the CSE meetings (Transcript at pages 826 and 833).
The Student was XXXXXXXXXXXXXXX July 2015 because of XXXXXX and XXXXXXXXX, XXXXXXXXXXXXX and XXXXXXXXXXXXXXXXXX XXXXX. After XXXXXXXXXXXXX, the Student was still having XXXXXXXXXXX (Transcript at pages 578, 579 and 836).
After meeting with XXXXXXXX, XXXXXXXXXX considered other programs for the Student because he felt that XXXXX or a XXXXXXXXXX setting would not provide the Student with enough academic or XXXXXXXXXXX support to handle the Student’s XXXXXXXXXXXXXXXX (Transcript at page 836). XXXXXXXX hired two educational consultants to help find an appropriate placement (Transcript at page 838). The consultants did not contact the District (Transcript at page 855). One consultant recommended that the Student transfer into a XXXXXXXXXXXXX for a few months before attending a XXXXXXXXXX program, the other consultant recommended the Student continue with academic support in a XXXXX setting (Transcript at page 839).
The Parent unilaterally placed the Student at the XXXXXXXXXX School a XXXXXX program in August 2015 and notified the District. XXXXXXXXXX had been recommended by an educational consultant hired by the Parent (Transcript at page 580). The Parent chose XXXXXXXXXX partly for its academic program (Transcript at page 789). The Student is receiving instruction in basic math and reading, social studies and money management at XXXXXXXXXX (Transcript at pages 582 and 583). XXXXXXXXXX provides a more structured environment than XXXXX. XXXXXXXXXX provides more socialization and has around the clock XXXXXXXX and XXXXXXXXXX support (Transcript at page 583). The Student receives one to one XXXXXXXX once per week with more being available if needed. The Student receives XXXXXX therapy two to three times per week. The Student sees a XXXXXXX at least once per month (Transcript at page 586).
XXXXXXXXXX has visited the Student three or four times at XXXXXXXXXX and has noticed that the Student XXXXXXXXXX and is XXXXXXXXX and XXXXX after XXXXXXXX and is XXXXXXXXX (Transcript at page 584). XXXXXXXXXX offers the Student XXXXXXXXXX program (Transcript at page 585). The Student is attending classes and is XXXXXXXXXXXXXX than the Student did at XXXXX. The Student is in a XXXXXXXXXXXX and is XXXXXXXX with other students appropriately. The Student now expresses an interest in being able to XXXXXXX and may want to go into the XXXXXXXXXXXX. XXXXXXXX anticipates the Student staying at XXXXXXXXXX until the Student is more independent and can go into a XXXXXXXXX program, perhaps take XXXXXXXXXX courses or until age 21 if needed. XXXXXXXXXX does not provide XXXXXXXXX where students learn XXXXXXX on their XXXXXXXXXX (Transcript at pages 587 and 588).
The Student XXXXXXXXXXXX. The Student spent time at the gym with a caregiver and went to dinner with the family. The Student was still XXXXXXXXX and had XXXXXXXXX but had XXXXXXXXXXX (Transcript at page 586). XXXXXXXXXX costs about twelve thousand dollars ($12,000) per month (Transcript at page 586).
The Parent called as its fifth witnesses XXXXXXXXXX, Educational Supervisor at the XXXXXXXXXX School, who appeared by phone. XXXXXXXX supervises six special education teachers and twelve content area teachers, implements IEPs and curriculum and conducts observations (Transcript at pages 605 and 606). XXXXXXX does not hold certification in special education or administration and has not taught in a public school (Transcript at pages 635 and 636). XXXXXXXXXX is approved by the State of Massachusetts as a XXXXXXXXXX school (Transcript at page 607). XX XXXXXX met the Student in August of 2015 when the Student enrolled at XXXXXXXXXX and sees the Student regularly in the classroom or when issues arise (Transcript at page 609). The Student was initially placed in an XXXXXXX track for less than a week (Transcript at page 638) but could XXXXXXXX (Transcript at page 648) and was not among peers so the Student was placed in a more XXXXXXX and XXXXXXXXXXX track, even though there was a XXXXXXXXXX XXXXXX class where the Student could have been placed (Transcript at page 649 and 650). XXXXXXXXXXXX had to remove the Student from the XXXXXXX class and the XXXXXX activities for a short period of time due to the Student’s XXXXXXX (Transcript at pages 609, 610, 611 and 615). The Student is working towards a XXXXXXXXXX school diploma based on completion of IEP goals rather than a Regents diploma (Transcript at page 639). Massachusetts adult transition services are not available to New York students (Transcript at page 642).
The Student is in a class with six other students, who range in age from seventeen to twenty-one and two special education teachers. The class spends eighty percent of the time at various XXXXXXXXXX. Class time is devoted to XXXXXXX therapy and XXXXX skills (Transcript at page 612 and 615). XXXXXXX helped to develop the XXXXXXXXXXX and XXXXXXXXX part of the Student’s treatment plan (Transcript at page 618). One of the goals is for the Student to XXXXXXXXXXXXXXXX XXXXXXXXXXXXX the Student’s XXXXXXXXXXX. Another goal is for the Student to participate in XXXXXXXXXXXXX (Transcript at pages 619 and 620, Exhibit L).
The Student volunteers at a XXXXXXXXXXXXXXXXXXXXX where the Student is involved with shopping, inventory, meal preparation and serving the customers. The Student also volunteers at the XXXXXXXXXXXX and is involved in merchandizing and organizing. The Student also volunteers at a XXXXXXX where the Student helps with inventory, unloading the food trucks and repackaging the food for the community (Transcript at page 621). The Student struggled at XXXXXXXX with XXXXXXXXXXXXXXX and would XXXXXXXXXXX at the supervisor and XXXXX XXXXXXXXX. The Student no longer goes to XXXXXXXX (Transcript at page 658). The Student XXXXXXXXX and can XXXXXXXXXX. The Student performs a XXXXX XXXXX at the XXXXXX but XXXXXXXX and XXXXXXX from the teacher (Transcript at pages 622 and 658). The Student is involved with inventory and not food preparation at the XXXXXX. At the XXXXXXX with the XXXXXXX the Student is involved in hanging up items and making sure they are in the proper location (Transcript at page 659).
The Student XXXXXXXXXXXXXXXXX and XXXXXXXXXXXXXXXXXX XXXXXXXXX. The Student has a XXXXXXXXXXX of what it takes to XXXXXXXXXXXXXXXX (Transcript at page 624 and 626). The Student does well with XXXXXXXXXXX but can XXXXXXXXXXXXXXX and needs to be reminded that XXXXXXXXXXXXXXX (Transcript at pages 625 and 655). The Student has XXXXXXXXXXXXXXXXXX (Transcript at page 626). As part of XXXXXXX activities the Student attends the XXXXXX and goes to the XXXXXX (Transcript at page 630). XXXXXXXXXX is a XXXXXXXXXXXXXX environment with four students to one staff member (Transcript at pages 631and 667). XXXXXXXXXX uses a collaborative problem solving approach rather than a point system (Transcript at pages 632 and 656). The Student with the review and approval of the staff develop proposals and goals of what they want to achieve. A plan “B” or a repair contract is developed if the Student does not meet the proposed goals (Transcript at page 633).
XXXXXXXXXXX believes the Student requires a XXXXXXXX placement because the Student requires XXXXXXXXXXXXXXX to go through the daily routine. The Student also requires XXXXXXXXXXXX, XXXXXXXXXXXX and XXXXXXXXXX XXXXXXXXX. The Student requires a lot of XXXXXXXXX and XXXXXXX XXXX and often XXXXXXXXXXXXXXXXXXXXXX (Transcript at page 633 and 634).
On cross examination XXXXXXXXXXXXXX testified about the XXXXXXXXXX Treatment Plan (Exhibit L) that the goals and objectives are essentially assessed anecdotally with no set mastery rate (Transcript at pages 645 and 647). Data is recorded in daily behavioral or clinical logs (Transcript at page 666). XXXXXXXXXX did not recall doing any standardized testing on the Student (Transcript at page 650). XXXXXXXX XXXXXXXX feels the Student has XXXXXXXXXX XXXXXX XXXXX with staff members since being at XXXXXXXXXX (Transcript at pages 671 and 672).
The Parent called as its sixth witness XXXXXXXXXX, Clinician at XXXXXXXXXX, who appeared by phone. XXXXXXXXXXXX has a Masters in counseling psychology, but has no Massachusetts state certifications or licenses although a license is not required to do private counseling in Massachusetts (Transcript at pages 714 and 742). XXXXXXXXXXXX is responsible for individual, group and family therapy, updating goals on IEP’s and facilitating six month treatment meetings. XXXXXX. XXXXXXXXX also does treatment crisis management (Transcript at pages 677 and 678). XXXXXXXXXXXX conducts a weekly group house meeting at the dorm (Transcript at page 686).
The Student has been on XXXXXXXXXX caseload since September 2015 and is seen for XXXXXXXX and XXXXXXXXXX (Transcript at page 687). The Student’s participation in XXXXXXXXXXXXXX. The Student sees a XXXXXXXXXXXXX once per month (Transcript at page 688). The Student would have XXXXXXXXXXXX in a XXXXXX environment. The Student has XXXXXXXXXXXX, XXXXXXXXX and XXXXXXXXX (Transcript at pages 690,693 and 708). XXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX (Transcript at page 692). The Student XXXXXXXXXXXXX XXXXXX with XXXXXXXXXX and making XXXXXXXXXXXXXX (Transcript at page 693). XXXXXXXXXX, XXX therapist, student team manager, the homeroom teacher, house manager and, if necessary, the program director meet on an as needed basis to discuss XXXXXXXXXXXXXX Student (Transcript at page 694). The last meeting in January or February of 2016 concerned the Student’s XXXXXXXXXXXXXXXXXXXXXXXX (Transcript at page 695).
The Student struggles with XXXXXXXXX and XXXXXXXXXX and often will XXXXXXXX and XXXXXXXXX(Transcript at page 696). On December 15, 2015 there was an XXXXXXXXXXXXXXX where the Student had XXXXXXXXXXX XXXXXXXXXXXXXXXXX (Transcript at page 699, Exhibit N). The Student XXX XXXXXXXXXXXXXXXXXXXXXXX. The other students had to leave the room so the Student could XXXXXXXXXXXXX. The Student continued the
XXXXXXXXXXXXXXX. The Student XXXXXXXXXXXXXXXXXXXXXXXXXX
as was typical of the Student’s XXXXXXXXXX (Transcript at pages 699 thru 701, 724 and 749). This incident occurred prior to XXXXXXXXXXXXX Student’s XXXXXXX which led to an increase in the Student’s XXXXXXXXXXX (Transcript at pages 723 and727). A XXXXXXXXXXXXXXX the Student’s XXXXXXXX (Transcript at page 728), but it would be the Student Team Manger’s XXXXXXXXX the Student about the XXXXXXXX (Transcript at page 729). XXXXXX would only discuss the XXXXXXXXXX behavior with the Student XXXXXXXXXXXX had been resolved and if XXXXXXXXX involved (Transcript at page 744). XXXXXXXX never discussed the XXXXXXXXX with the Student (Transcript at page 730). XXXXXXXX did not know if the XXXXXXXXXXXX the Student’s XXXXXXXXXXXXXX XXXXXXXXXXXXXX (Transcript at page 748).
Another XXXXXXXXX occurred on January 4, 2016 (Exhibit O). The Student was XXXXXXXXXXXXXXXXX and XXXXXXXXXXXXXX the house manager and XXXXXXXXXX”. The staff tried to XXXXXXXXXXXX but the Student continued. The staff had to continue to XXXXXXXXXXX the Student until the Student XXXXXXXX. This XXXXXXX occurred while the Student’s XXXXXXXXXX XXXXX (Transcript at pages 704, 705,731 and 733). XXXXXX is unaware of any XXXXXX with the Student (Transcript at pages 706 and 734) but would not be surprised if there were other XXXXXXXX because the Student has XXXXXXXXXXXX since attending XXXXXXXXXX (Transcript at page 741). The Student XXXXXXXXXXXXX of working out and listening to music (Transcript at page 707). The Student has had XXXXXXXXXXXX at school (Transcript at pages 708 and 709). The Student was originally placed in a XXXXXXXXXX class. The Student was XXXXXXXX with staff and peers and XXXXXXXXXXX in the XXXXXXX class (Transcript at page 751). The Student was put in an XXXXXXXX class for two or three weeks to see if there would be an XXXXXXXXXX. This occurred in late December 2015 or early January 2016 (Transcript at pages 734 and 751). The Student had even XXXXXXXXXXXXX, XXXXXXXXX and XXXXXXXXXXXXX and staff in the XXXXXXXXX class and was returned to the XXXXXXXXX class. The Student XXXXXXXXXXXXXXX program (Transcript at pages 709 and 710).
The Student experiences XXXXXXX and XXXXXXX when XXXXXXX or XXXXXXXXX from classes or to lunch. XXXXXXXXX sees the Student once a week individually and once a week in the XXXXXXXX as well as on XXXXXX at the local XXXXXXXXXXX (Transcript at page 711). The Student often XXXXXXXXXXX XXXXXX but is XXXXXXXXX. The Student will go XXXXXXXXXXXX with other students. The Student’s ability to XXXXXXXXXXXXXXXXXXXXXXX but is XXXXXXXXXX on the Student’s XXXXXXXX the task (Transcript at page 712).
On cross examination XXXXXXXXXXX testified that XX did not create the goals on the Student’s XXXXXXXXXX XXXXXXXXXX Plan (Exhibit L) but XX did add to them by changing some words around (Transcript at page 716). How well the Student XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and how well the Student improves XXXXXXXXXXXXX is measured anecdotally (Transcript at pages 719, 720, and 723 Exhibit L). If major changes are made in the XXXXXXXX plan before the sixth month review XXXXXXXXX either e-mails the team or tells them face to face (Transcript at page 755).
The Student is not currently taking consumer math, economics, American literature, or fine arts. The Student is taking Health and Nutrition as part of the Student’s XXXXXX class (Transcript at page 735). The Student XXXXXXXXXXXXXXXXXXXXXXX the Student was placed in so the Student had to XXXXXXXXXXXXXXXXX (Transcript at page 737). The Student has XXXXXXXXXXXXXXX and after a lot of XXXXXXXX and XXXXXXXXXXXXXXXXXXX (Transcript at pages 742 and 743).
The Parent called as its seventh witnesses, XXXXXXXXXX, special education teacher at the XXXXXXXXXX School, who appeared by phone. XXXXXXX hopes to receive XXX master’s degree in special education moderate disabilities in August 2016 (Transcript at page 874). XXXXXXXXXX does not have XXXXXXX training (Transcript at page 896). XXXXXXX worked for XXXXXXXXXX for one month in May 2015 and resumed working there in September 2015 (Transcript at page 875). XXX XXXX co-teaches the class that focuses on XXXXXXXXXXXXX. The students in the class get grades from the principal but not daily assignments (Transcript at page 895). The class does not XXXXXXXXXXXXX, but Students are exposed to money, what things cost, buying from a grocery store and budgeting (Transcript at pages 877, 878 and 879). Life skills are taught as part of XXXXXXXXXXX (Transcript at page 881). There are seven students in XXXXXXXXX class between the ages of eighteen and twenty-one (Transcript at page 882). The Student XXXXXXXX sixteen hours per week at a XXXXXXXXXXXXX (Transcript at page 883).
The Student does XXXXXXXXXXXXXXXX were homeless people are fed. The Student is able to do the assigned tasks such as lifting and organizing things. The Student
does XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXX and the XXXXXXXX ask for the Student by name (Transcript at page 897). The Student spends three hours on XXXXXXX and XXXXXXX mornings at the XXXXXX XXXXXXX XXXXX XXXXXXX (Transcript at page 884). In the afternoon the Student goes to the XXXXXX or another XXXXXXXXXXXXX site. The Student likes to work out at the XXXXXXX and that is used as a XXXXXXXXXXXXXX for the Student (Transcript at page 885). The Student will be going to another XXXXXXXXXX on XXXXXXXX. The class also goes to the XXXXXXXXXXXXX once a week and a XXXXXXXXXXXXXXXXXXXXXXXX mornings. The Student enjoys going to the XXXXXXXXXXXXXXXX (Transcript at page 886). At the XXXXXXXXX the Student goes over to the homeless people and asks what XXXXXX can get for them be it orange juice, coffee or a hot meal. The Student shows respect to the homeless people. The Student also does mopping and cleaning at the XXXXXXX (Transcript at pages 887 and 898).
When XXXXXXX started the Student was XXXXXXXXXXXX and XXXXXX to speak to. The Student would say XXXXXXXXXXXXXXXX the other students. The Student would say to XXXXXXX “XXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX.” XXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXX (Transcript at page 889). XXXXXXXX would XXXXXXX the Student and tell the Student “XXXXXXXXXXXXXXXXXXXX” (Transcript at pages 890 and 897). At one time the Student had to be
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX. The Student returned to XXXXXXXXXX class about three weeks later (Transcript at pages 891 and 892). Upon XXXXX the Student’s XXXXXXXXXXXXXX. The Student is XXXXXXXXXXXX at the XXXXXXXXXXXXXX, XXXXXXXXXXXXXXXXX XXXXXXXXXXX and
XXXXXXXXXXX (Transcript at page 892).
The Parent called as its eighth witnesses XXXXXXXXXXX, Student Team Manager at the XXXXXXXXXX School, who appeared by phone. XXXXXXXX stated that XXXdoes not have a college degree (Transcript at page 910) educational or XXXXXX XXXXXX certification (Transcript at page 927). As Student Team Manger XXX communicates with parents, other team members, school districts and residential staff in order to ensure that everyone is on track in managing a student’s care. XXX XXXXXXX also previously provided training to incoming XXXXXXXXXX staff (Transcript at pages 922 and 930). XXXXXXX does not provide any direct services to the Student (Transcript at pages 911 and 913). The Student is on XXXXXX caseload (Transcript at 912). Staff meets every six months to update a student’s service plan and daily in the afternoon to discuss a student’s progress, individual meetings regarding this Student are held as needed based on the Student’s XXXXXXXX(Transcript at page 915).
The Student is on a XXXXXXXXXXXXX and had started with and was briefly on an XXXXXXXXXXXX track (Transcript at page 916). Other than XXXXXXXXXX an XXXXXXXXXXXXXXXXXX class are the only options at XXXXXXXXXX (Transcript at page 942). If something is going on with the Student the teachers, clinicians and residential house staff will e-mail, call or text XXXXXXXXXXXX any time of the day (Transcript at page 919). Staff contacts XXXXXXXXX when the Student is having XXXXXXXXXXXXXXXXXXXXXX and making XXXXXXXXXX XXXXXXXXX (Transcript at page 920). XXXXXXXXXX will then talk with the staff about the XXXXXXX and provide staff with strategies and techniques to handle the XXXXXXXXXXXX(Transcript at page 929). XXXXXXXXXX will also speak with XXXXXXXXXXX about once a month and the Student’s mother about once every eight weeks (Transcript at pages 921, 922 and 933). XXXXXXX sees the Student three to four times a week on XXXXXXXX, in the XXXXXXX or in XXXXXXX (Transcript at page 923). The Student is XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX rather than XXXXXXXXXXXXXXXXXXXXXXXXX (Transcript at page 924). XXXXXXXX will XXXXXXXXX with the Student two to three times a month (Transcript at page 928). On XXXXXXXXXXX the students shop for the XXXXXXXX and learn budgeting, on XXXXXXXXXXXXX the students go to museums and the XXXX and in warmer weather they hike, bike and fish (Transcript at page 925). The Student goes to the XXXXXXXX four to five times a week to XXXXXXX and going helps XXXXXXXXXXXXXXXX (Transcript at page 930).
At the XXXXXXXXXXXXXXX on March 17, 2016 XXXXXXX recommended that the Student be XXXXXXXXXXXXXXXXXXXXX the Student was having XXXXXXXXXXXXXXXXXXXXXX four to five months (Transcript at page 939). The Student was subsequently XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX since starting XXXXXXXXXX (Transcript at page 940). The Student XXXXXXXXXXXXXXXXXXXXXXXXXXXX but is XXXXXXXXX and is an XXXXXXXXXXXXXXXXXXXXXX (Transcript at page 937). The Student has been able to XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Student’s XXXXXXXXX have XXXXXXXXXX since coming to XXXXXXXXXX, but the Student still has a XXXXXXXXXXXXX (Transcript at page 943).
The Parent called as its ninth witnesses XXXXXXXXXXXXXXX, special education teacher at XXXXXXXXXX in XXXXXXXXXXXXX class, who appeared by phone. XXXXXXX testified that the Student is in his class. When XXXXXXXX first met the Student the Student was very XXXXXXXX XXXXXXXXXX, and wanting to XXXXXX looking for XXXXXXXX. The Student was XXXXXXXXX and presented XXXXXXXXXXXXXXXXXX the Student’s XXXXXXXXXXXX (Transcript at page 950). The Student attends placements at the XXXXXXXXXXXXXXXXXXXXXXXXXXXX (Transcript at pages 950 and 951). At the XXXXXXXXXXX Student does inventory, lifting, putting things away and greets people. The Student takes XXXXXXXXXXXXXXXX such as packing food baskets, bringing them out to the recipient’s car and talking with the recipient’s family (Transcript at page 951). The Student also likes to offer support by opening doors and helping the elderly (Transcript at page 952).
The Student’s XXXXXXXXXXXXXXXXXX. The Student requires XXXXXX
XXXXXXXXXXXXXX, XXXXXXXXXXXXXXXXXXXXXXX. The Student’s
XXXXXXXXXXXXXXXXXXXX the Student does XXXXXXXXXX (Transcript at page 952). The Student interacts with the homeless people, plays checkers and Uno with them, serves them coffee and talks about working out with them. The Student likes physical activity such as taking out the garbage, putting out produce and drinks and filling up toiletry baskets (Transcripts at pages 953, 954, 958 and 987). The Student also did meal preparation, clean up and waited on tables at a XXXXXXXXXXXXXXXX from September 2015 thru January 2016 (Transcripts at page 954 and 955). A great deal of the school day is spent in the XXXXXXXXXX (Transcript at page 955). On XXXXXXXXXXX the Student is at the XXXXXXXXXXX from 8:30 a.m. until 11:15 when they return to campus for lunch. After lunch the Student goes to another XXXXXXXXXX (Transcript at page 956 and 957). At the end of the day at 3:00 p.m. the Student transitions back to XXXXXXXXXX (Transcript at page 962). There is then an activity, XXXXXX, another activity and XXXXX. It is a very XXXXXXXX day. On XXXXXXXXX the Student participates in a XXXXXXXXXXXXXXXX class (Transcript at pages 962 and 963). Staff receives daily notes on how the Student did each day (Transcript at page 964). * The Student requires assistance with XXXXXXXXX. A XXXXXXXXXXXX solving method is used. If the Student is XXXXXXXXXXXXXXXXXXX will XXXXXX the Student and discuss how XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX person (Transcript at pages 957, 958 and 987). There has been XXXXXXXXXXXX the Student’s XXXXXXXXX but it XXXXXXXXXXXXXX (Transcript at pages 958, 959 and 981). The Student interacts with XXXXXXXX at the XXXXXXXXXXXXX and during lunch XXXXXXXXX (Transcript at page 987). XXXXXXXXXX provides professional development trainings (Transcript at page 960).
In order to achieve the XXXXXXXXXXX of having the Student XXXXXXXXXX XXXXXXXXXXXXXXXXXXX on the Student’s XXXXXXXXXXXXX does XXXX XXXXXXXXXXXXXXXXXXXXX. Only anecdotal data is kept on the success of this goal (Transcript at page 979). The Student has been able to XXXXXXXXX in XXXX to XXXXXXXXXX (Transcript pages 969 thru 971, Exhibit L). It is going to take XXXXX XXXXXXXXXXXXXXXXX for the Student to be able XXXXXXXXX XXXXXXXXXXXXXXXXXXX. XXXXXX has not been able to identify XXXXXX XXXXXXXXXXXXXXXXXX accept the Student (Transcript at page 983). The XXXXXXXX are being used to try to XXXXXXXXXXXXXXXX the Student will need to be able to XXXXXXXXXXXXXX (Transcript at pages 971 and 983, Exhibit L). If the Student is given a task the Student XXXXXXXXXXXXXXX the Student is being XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX leaving the task. The teachers
will use a XXXXXXXXXXXX, XXXXXXXXXXXXXXX and XXXXXXXXXXXXX
with the Student in order to achieve the XXXXXXXXXXXXX (Transcript at page 972).
Post-secondary goals have been talked about with the Student. The Student has filled XXXXXXXXXXXX and created a XXXXXXXXXXX, but requires a XXXXXXXXXX to do these things (Transcript at page 973). The Student had some XXXXXXXXXX XXXXX and had to XXXXXXXXXXXXXXXX and approach the XXXXXXXXX of the XXXXXX XXXXX to XXXXXXXXXXX with them. As of March 2016 the Student is XXXXXXXXXXX in this area (Transcript at page 974).
On cross-examination XXXXXXXXX testified that the Student receives consumer math when XXXX goes shopping or is do budgeting. The Student does not receive Social Studies or Economics classes. The Student receives Health and Nutrition and physical education classes by going to the XXXXXXX XXXXX. XXXXXX and XXXXXX teach the students nutrition while at the XXXX. The Student does not receive American Literature or Fine Arts classes (Transcript at pages 978 and 988). The Student was assigned to the above listed courses when the Student first entered XXXXXXXXXX (Transcript at page 1001). The Student’s understanding of XXXXXXXXXXXX and what it XXXXXXXXXXXXX is measured anecdotally and by giving the Student XXXXXXXXXXXXXX (Transcript at page 984).
In October 2015 the Student refused to go to the XXXXXXXXXXXXXXXXXX XXXXX despite XXXXXXXXXXX from XXXXXXX and XXXXXX. The Student was originally placed at XXXXXXXXXXXXXX because the Student wanted to be a chef (Transcript at page 1004). Instead the Student went to XXXXXXXXXXXX XXXXXXXXX. It was appropriate to transfer the Student to the XXXXXXXXXXX because the Student did not have the XXXXXXXXXXXXXXXXXXXXXXXXX (Transcript at pages 994, 995,996, 998, 999 and 1004). While the staff was aware of this change it was not reflected in the XXXXXXXXXXX (Transcript at page 997).
The Student finds it challenging to XXXXXXXXXXX (Transcript at page 1005). The Student has not XXXXXXXXXXXXXXXXXXXX XXXXXXXXXX (Transcript at page 1006). It is unclear whether the Student will XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX and XXXXXXXXXXXXXXXXXXXXX as the Student’s XXXXXXXXXXXXXX and it XXXXXXXXXXXX the Student is XXXXXXXXX and XXXXXXXXXXX on any XXXXXXXXXXX (Transcript at page 1006).
The Parent presented no further witnesses and rested their case (Transcript at page 1007).
The District re-called XXXXXXXXXXXXXXXXXX as a rebuttal witness (Transcript at page 907) testimony from April 13, 2016). XXXXXXXXXXX testified that XXXXX never indicated that the Student was XXXXXXXXXXXXXXX in order to earn a high school diploma or that the Student was XXXXXXXXXXXXX (Transcript at page 908, Testimony from April 13, 2016). Neither the Parent nor XXXXX staff indicated to XXXXXXXXXXXX that the courses the Student was taking were XXXXXXX XXXXXXXXXXXXXXXX (Transcript at page 908, Testimony from April 13, 2016). The Student’s mother never advised XXXXXXXXXXX about a discussion the mother had with XXXXXXXX of XXXXX on February 6, 2015 that the Student was not going to XXXXXXXXX from XXXXX in June 2015 because the Student had XXXXX taken XXXXXXX XXXXXX which were required for a XXXXX diploma (Transcript at pages 915 and 935, Testimony from April 13, 2016). XXXXXXXXXXX first learned at the Impartial Hearing that the Student’s credits were not XXXXXXXXXXXX courses and that XXXXX required Regents exams in order to issue a diploma. During the four years the Student attended XXXXX no one from XXXXX ever mentioned what was required to graduate from XXXXX (Transcript at page 916, Testimony from April 13, 2016). XXXXXXXXXXX feels that the XXXXXXXXXXX to academics that the Student is XXXXXXXX at XXXXXXXXXX is XXXXXXXXXXX because as noted in the XXXXXXXXXXXXXXXX the Student should continue with academics, reading and writing XXXXXXXXXXXXXXXX (Transcript at page 925-Testimony from April 13, 2016, Exhibit P). The District would not remove a student from academics, but rather would look for a XXXXXXXXX or setting such as XXXXXXXX or XXXXXXX instruction or XXXXXXXXX. It was not appropriate for XXXXXXXXXX to remove the Student from XXXXXXXX and place the Student in a XXXXXXXX class because the Student needs to continue with reading, math and writing skills (Transcript at pages 926 and 927-Testimony from April 13, 2016). XXXXXXXXX feels that the program at XXXXXXXXXX is not appropriate because there are no XXXXXX and no XXXXXXXXX or XXXXXXXXXXX as recommended in the XXXXXXXXXXX is being provided by XXXXXXXXXX. The XXXXXXX being provided is not XXXXXXXX. XXXXXX feels that the program being provided by XXXXXXXXXX is not XXXXXXXXXX enough to meet the Student’s needs (Transcript at pages 927 and 936-Testimony from April 13, 2016). XXXXXXXXX is unsure how the XXXXXXXXXX XXXXXXX program, in which the Student participates, without a XXXX or XXXXXXX or XXXXX staff can move the Student along (Transcript at page 929-Testimony from April 13, 2016). XXXXXX first learned at the impartial hearing that XXXXXXX felt it was self-evident that the Student would not graduate in June 2015 (Transcript at page 935- Testimony from April 13, 2016). XXXXXXXX did not realize from the names of the courses on the XXXXX transcript that the Student did not have the proper sequences to graduate because private schools can have their own course sequences and names of courses (Transcript at page 941-Testimony from April 13, 2016). XXXXXX did not ask XXXXX what the courses included (Transcript at page 958- Testimony from April 13, 2016). XXXXXXX first learned at the Impartial Hearing that the Student would have had to satisfy the same sequences for a XXXXX diploma as for a Manhasset diploma (Transcript at page 942Testimony from April 13, 2016). When XXXXXXXXX reviewed the XXXXX XXXXXXX dated May 1, 2014 (Exhibit H) which sated that state assessments should be administered over multiple days to the Student, XXXX assumed that meant Regents exams and that the Student was taking Regents exams (Transcript at page 944-Testimony from April 13, 2016). XXXXXXX never asked XXXXX staff if the Student was sitting for Regents exams (Transcript at page 958 and 965-Testimony from April 13, 2016). XXX XXXXX did not ask why Regents were not listed on the XXXXX transcripts because XXXXX is a private school (Transcript at page 959-Testimony from April 13, 2016).
There was no indication from XXXXX that the XXXX program the Student was attending was inappropriate and the Parents had never mentioned at any of the CSE meetings that they were seeking a XXXXXXX program. XXXXXXX felt that the Student did not need a more XXXXXXXXXXX setting. Neither XXXXX nor the XXXXXXXXX nor any testimony indicated a need for a XXXXXXXXXX for the Student (Transcript at pages 945 and 946-Testimony from April 13, 2016, Exhibit P). XXX XXXXXXX believes XXXXXX would have accepted the Student even at the age of eighteen after the Student’s XXXXXXXXX (Transcript at page 954 and 966Testimony from April 13, 2016). XXXXXXXXX did not expect the Student to earn a Regents diploma from XXXXX but was never told by XXXXX that they only issue Regents diplomas (Transcript at page 969-Testimony from April 13, 2016),
Findings of Fact and Conclusions of Law Legal Framework and Standard At the pre-hearing conference held on October 21, 2016 it was determined that the following issues were to be determined (Transcript at page 7):
1) Was the Student ready to graduate in June 2015?
2) Was the District responsible to provide A FAPE to the Student for the 2015-2016 school year?
3) Was the District responsible to provide an IEP for the Student for the 2015-2016 school year?
4) Are the Parents entitled to tuition reimbursement for all costs associated with the Student attending the XXXXXXXXXX School for the 2015-2016 school year?
5) Was the XXXXXXXXXX School an appropriate placement for the Student?
6) Does the Parent’s request for tuition reimbursement violate the 2012 Stipulation of Settlement between the Parties?
7) Who do the equities favor?
Was the Student ready to graduate in June 2015?
In New York a Regents diploma requires a total of twenty-two (22) credits four credits in English, four credits in History, three credits in Math, three in Science, two in gym, one in a foreign language, one credit in art or music, a half-credit in health and three and a half elective credits and five Regents exams with a 65 or above. A local diploma has the same requirements except that a 55 or higher must be gotten on the exams, or with the safety net option a 45 or better on an exam as long as there is 65 or better on another exam (Transcript pages 157, 159, 160,166, 276 and 416).
Although neither an impartial hearing officer nor a State Review Officer may pass upon the academic standards required by the State of New York for graduation in an impartial hearing, which must be limited to the special education programs and services provided by the district (Application of the Bd. of Educ., Appeal No. 05-037; Application of a Child with a Disability, Appeal No. 02- 011; Application of a Child with a Disability, Appeal No. 96-67; Application of a Child with a 6 Disability, Appeal No. 94-31), both an impartial hearing officer and a State Review Officer may, in the context of a due process proceeding, render factual findings relating to whether a student has met the stated graduation requirements (Application of a Student with a Disability, Appeal No. 09-145; Application of a Student with a Disability, Appeal No. 09-056; Application of the Bd. of Educ., Appeal No. 08-071; Application of a Child with a Disability, Appeal No. 02- 011; Application of a Child with a Disability, Appeal No. 98-6). In this case testimony indicated that the Student had taken twenty two (22) credits. The Student earned 7.75 credits in 9th grade, 4.75 credits in 10th grade, and 6 credits in 11th grade for a total of 18 credits (Transcript at pages 92 and 94, Exhibit 13). The Student’s class of 2015 transcript shows that 22 credits were earned from 9th through 12th grades (Transcript at pages 106,107,119 and Exhibits 12, 17 and 20).
However, further testimony indicated that the courses taken by the Student were XXXXX and did not meet the required sequences for a Regents or local diploma. The Student’s report card did not reflect that the earth science curriculum had been XXX(Transcript at pages 360, 361, and 937-Testimony from April 13, 2013; Exhibits 15 and 17). The Student did not have the proper XXXXXXXXX and had not taken any Regents or Regents Competency tests in order to graduate (Transcript at page 362).
XXX. XXXX testified that the Student was taking XXXXXXXX classes because the Student XXXXXXXXXXX the information needed for a Regents exam (Transcript at pages 501 and 502). XXXXXX testified that despite earning 22 credits the Student’s transcript does not indicate that the Student did not earn enough math, English or science credits to earn a high school diploma (Transcript at page 433). Prior to the July 7, 2014 CSE meeting, XXXXX told XXXXX that based on the Student’s eleventh grade transcript the Student could not earn a high school diploma at the end of twelfth grade because the Student did not have the required class sequences, credits and Regents exams (Transcript at pages 438,445 and 448). XXXXX never indicated that the Life Skills classes taken by the Student would not count towards a high school diploma (Transcript at page 263). In the spring of 2015 XXXXXXX advised the parents that the Student did not have the necessary course sequences to graduate and had not taken any Regents (Transcript at pages 449, 450 and 469). The Parent did not say anything at the May 7, 2015 CSE meeting about the Student not having completed the necessary sequences to earn a high school diploma (Transcript at page 787) Testimony indicated that the Student never took any Regents exams in order to qualify for a Regents or local diploma. XXXXXX testified that the Student never sat for Regents exams or Regents Competency tests (Transcript at page 377). The Student neither took nor attempted to take any Regents exams in the eleventh grade (Transcript at pages 340, 341 and 342). At the July 10, 2014 IEP meeting there was a discussion that the based on the Student’s XXXXXX, XXXX and XXXXXX in classes the Student would not be able to take an English or U.S History Regents (Transcript at page 386). At that time the Student was not eligible for a local diploma because the Student had not taken any Regents or Regents Competency exams (Transcripts at pages 346 and 347). The Student took no Regents exams in twelfth grade and was never given any State assessments (Transcript at pages 351 thru 353). XXXXX testified that The Student would not qualify for a Regents or local diploma because the Student’s transcript does not reflect that the Student took any Regents (Transcript pages 419 and 420). At the end of eleventh grade not having taken any Regents exams it would have been impossible for the Student to graduate with a Regents or local diploma by the end of twelfth grade (Transcript at pages 435, 439 and 440). XXXXX felt that the Student had sat in on the courses but had not taken any Regents which are needed for a diploma from XXXXX (Transcript at pages 495, 496 and 501). The Student told XXXXXX that the Student was not taking Regents exams (Transcript at pages 816 and 834). XXXXXXXX further learned sometime during the Student’s 20142105 senior year at XXXXX that the Student was not taking Regents exams and learned in May of 2015 that the Student was not going to receive a Regents diploma, although it was self-evident to the Parent because of the Student’s XXXXXX that the Student could not sit for Regents exams (Transcript at pages 569, 784 and 835). Based on all of the above testimony, I find that the Student was not ready to graduate as expected in June 2015 and did not qualify for either a Regents or local diploma. Although the Student might have had enough credits, the Student did not complete the correct sequences and had not taken any required Regents exams.
The District maintains that the Parent and XXXXX mislead the school district completely with respect to credits earned, the fact that the courses at XXXXX were XXXX, the fact that the Student did not take sequences, and the fact that the Student did not take Regents as none of these facts were disclosed to the District until the May 7, 2015 CSE meeting (Transcript at page 930- Testimony from April 13, 2016), (Exhibit BB-9). The District also argues that since the Parent unilaterally placed the Student at XXXXX the Parent was to accept a XXXXX rather than a District diploma (Transcript at pages 911, 917, and 918, Testimony from April 13, 2016). These are equity arguments favoring the District to be discussed below, but do not affect my finding that under New York State Regulations the Student was not ready to graduate in June 2015.
Was the District responsible to provide A FAPE to the Student for the 2015-2016 school year?
The IDEA only relieves school districts of the obligation to provide FAPE to students who have graduated with a regular high school diploma. Section 300.102(a)(3)(i) of IDEA states that “The obligation to make FAPE available to all children with disabilities does not apply…to…children with disabilities who have graduated from high school with a regular high school diploma.” However, as determined above, the Student did not graduate in June of 2015 and thus as a child with a disability (Transcript at page 27, Exhibits 4, 6, 8 and 11) was entitled to a FAPE until age 21 or graduation. Children with disabilities who have not graduated with a regular high school diploma still have an entitlement to FAPE until they reach the age at which eligibility ceases under the age requirements within the state (See 34 CFR 300.102 (a)). New York Education Law specifically provides IDEA eligibility to children through the end of the school year in which they turn 21 (N.Y. Educ. Law § 4402(5) (b); (See 8 NYCRR 100.9(e)). Thus, I find that since as determined above the Student did not graduate in June of 2015, the District was responsible to provide a FAPE to the Student for the 2015-2016 school year.
Was the District responsible to provide an IEP for the Student for the 2015-2016 school year?
Since I have determined that the District was responsible to provide a FAPE to the Student for the 2015-2016 school year the District in order to provide FAPE was mandated to provide an IEP for the Student for the 2015-2016 school year. A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Board of Education v. Rowley, 458 U.S. 276, 206-07 (1982) (Rowley, (supra); R.E. v. New York City Dep’t of Educ., 694 F3d 167,18990 (2d Cir. 2012); M.H. v. New York City Dep’t of Educ., 685 F3d 217, 245 (2d Cir 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F3d 186,192 (2d Cir 2005). A denial of FAPE occurs when the procedural inadequacies either 1) result in a loss of educational opportunity for the student 2) seriously infringe on the parent’s opportunity to participate in the IEP process or 3) compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under the IDEA (Warner v. Clarkstown Central School District 363 FSupp2D 656 SDNY 2005) and W. A. v. Pascarella 153 F.Supp 2d 144 Dist. Conn 2001). Testimony indicated that no IEP was developed for the Student for the 2015-2016 school year. XXXXXXXX did not create an IEP for the Student for the 2015-2016 school year because it was XXXXXXX opinion that the Student had graduated (Transcript at pages 948 and 950-Testimony from April 13, 2016). Since the District testified that no IEP was developed for the 2015-2016 school year I cannot review the procedural and substantive appropriateness of the IEP. Since the District was responsible to provide a FAPE to the Student for the 2015-2016 school year and failed to comply with any procedures for developing an IEP under IDEA and did not develop an IEP reasonably calculated to enable the student to receive educational benefits for the 2015-2016 school year, I find that the District failed to provide a FAPE for the Student for the 2015-2016 school year.
Are the Parents entitled to tuition reimbursement for all costs associated with the Student attending the XXXXXXXXXX School for the 2015-2016 school year?
The standard for reimbursement for placement by parents of children in a private program at public expense is set forth in School Committee of Burlington v. Department of Education of Massachusetts 471 U.S. 359 (1985) (Burlington (supra)). Burlington provides a three prong test. First were the services offered by the school district not appropriate or not adequate? Second, if so did the services the parents propose to obtain provide appropriate services to meet the unique educational needs of the child? Third, if so are there equitable considerations to support the parent’s claim for reimbursement?
Were the services offered by the District not appropriate or not adequate?
New York State Education Law Section 4404(1) (c) places the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
I find that pursuant to New York State Education Law Section 4404(1) (c) the District has not met its burden of production or persuasion regarding the appropriateness of the Student’s educational program for the 2015-2016 school year. As noted above the District created no IEP and thus offered no services to the Student. Offering no services to the Student who was entitled to a FAPE is certainly not appropriate or adequate. Thus, I find that the services offered by the District were not appropriate or adequate and the District did not provide a FAPE for the Student for the 2015-2016 school year.
Was the XXXXXXXXXX School an appropriate placement in order to meet the unique educational needs of the Student?
The Parent maintains that XXXXXXXXXX is an appropriate placement for the Student (Exhibits CC-4 and HH-12; Transcript at page 33). The District maintains that XXXXXXXXXX is an inappropriate placement for the Student (Exhibit GG-1).
Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” (Gagliardo 489 F3d at 112) (See M.S.v Bd. of Educ., 231 F3d 96, 104 (2d Cir. 2000)). I find that pursuant to New York State Education Law Section 4404(1) (c) the Parent has met their burden of production and persuasion regarding the appropriateness of the Student’s placement at the XXXXXXXXXX School.
The appropriateness of a unilateral placement is based on whether the child is receiving educational services likely to produce progress not regression. (Frank G. and Dianne G, v. Bd. Of Educ. Of Hyde Park, 459 F3d 356 (2d Cir 2006)). The placement must be reasonably calculated to enable the child to receive educational benefits (Frank G 459 F.3d at 364). A “private placement is only appropriate if it provides “education instruction specifically designed to meet the unique needs of a handicapped child” (Gagliardo 489 F3d at 115 citing Frank G 459 F3d at 365 quoting Rowley, 458 U.S. at 188-89)). A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the Student (Carter 510 U.S. 7; Application of the Bd. Of Educ., Appeal No. 08-085; Application of the Dep’t of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-105). “Subject to certain limited exceptions ‘the same considerations and criteria that apply in determining whether the school district’s placement is appropriate, should be considered in determining the appropriateness of the Parents’ placement…” (Gagliardo, 489 F3d at 112; Frank G. 459 F3d at 364 (2d Cir 2006) (quoting Rowley 458 U. S.at 207 and identifying exceptions). Parents need not show that the placement provides every special service necessary to maximize the student’s potential (Frank G., 459 F3d at 364-65).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).
The Student’s Special Education needs:
The Student was diagnosed with XXXXXXXX and XXXXXXXXXXXXX XXXXXX and XXXXXXXXXX (Transcript at pages 27, 205 and 553), and classified by the District as XXXXXXXXXXXX (Exhibits 4, 6, 8 and 11). The Student was placed in a New York State approved residential placement at the XXXXXXXXX in September 2008 (Transcript at pages 144 and 194) because the Student needed a XXXXXXXX XXXXXXX (Transcript at page 265). The XXXXX School reported that the Student would XXXXXXXX students (Transcript at page 268). The Student was XXXXXXXX the XXXXXX School because of XXXXXXX (Transcript at pages 148 to 150 and 268).
The Student needs XXXXXXXX XXXXXXX (Transcript at page 294). The Student needs XXXXXXXX (Transcript at pages 154, 202 and 267, Exhibit D). An XXXXXXX XXXX was recommended to XXXX XXXXXXX the Student’s XXXXX (Transcript at page 202, Exhibit D). The Student could be XXXXX, but never XXXXXXXX (Transcript at page 203). In eighth grade the Student needed XXXXXX, XXXXX after XXX to XXXXXX XXXXX of class and XXXXX” in order to get XXXXXXXX where the Student could XXXXXXX (Transcript at page 366). When XXXX the Student would XXXXXXX, XXXXX and XXX at students and staff (Transcript at pages 319-322).
The Student has XXXXXXX with XXXXXXXXXX XXXXXXX, XXXXX
XXXXX, the XXXXXX to XXXXX and XXXXXXXXXXXXXXXXXXXXXX
(Transcript at pages 690,693 and 708). The Student XXXXXXXwith physical and XXXXXXX XXXXXX and XXXXXXXX and XXXXX XXXXXX (Transcript at page 696). The Student exhibits a XXXXXXXX (Transcript at pages 699 thru 701, 724, 742, 743 and 749).
The Student was XXXXXXXXXXXXXXXX, would say XXXXXXXX “XXXX XXXX”, and would XXXXXXXXXXXXXX (Transcript at page 336). The Student was XXXXXXXXX from the XXXXXXXXX. The Student would XXXX XXXXX and xxxxx and XXXXXXX XXXXX others at XXXXXXXXXXX (Transcript at pages 337 and 338). The Student’s ability to be XXXXXXXXXXX was XXXXXXXXX (Transcript at page 489). The Student experiences XXXXXXX and XXXXXXXX when XXXXXXXXX XXXXXX or XXXXXXXXXXX from XXXXXX or to XXXXX(Transcript at page 711).
When the Student was in tenth and eleventh grade the Student’s XXXXXX at XXXXX was XXXXXXXXX. The Student would become XXXXXX XXXXX and XXXXXX and say XXXXXXX things to XXXXXXX if the Student XXXXXXXXXX Student XXXXXXXXX (Transcript at page 570). After XXXXXXX from the XXXXXX in July 2015, the Student was XXXXXX (Transcript at pages 578, 579 and 836).
The Student requires XXXXXXX and XXXXXXXX. The Student was on XXXXXX while attending XXXXX and the XXXXXXXX XXXXXX. The Student saw a XXXXXXXXXX and XXXXXXXXX while at XXXXX (Transcript at pages 572, 573 and 574). XXXXXXXX discussed with the Parent that the Student was XXXXXXXXXXXXX and this affected the Student’s ability to XXXXXXXXXXXXX (Transcript at page 825).
The Student XXXXXXX with XXXXXXX resulting in XXXXXXX and XXXXXX XXXX being XXXXXXX by a staff member. The Student has a XXXXXXXXX XXX of what it takes to XXXXXXXX (Transcript at page 624 and 626). The Student does well with XXXXXXXXXXXXXXXXXXX and needs to be reminded that XXXXXXXXXXXXXXXXXXXX (Transcript at pages 625 and 655). The Student has XXXXXXXXXXXXXX (Transcript at page 626).
The Student’s XXXXXX and XXXXXX issues need to be XXXXXX with before working on XXXXXXXXX (Transcript at page 329). Neither the XXXXXXXX evaluation nor any testimony indicated a need for XXXXXXXXXX for the Student (Transcript at pages 945 and 946-Testimony from April 13, 2016, Exhibit P). However, in a feedback session on May 21st, 2015 (Transcript at page 858) with the doctor who performed the XXXXXXXXXXX evaluation, the doctor advised the Parent that a XXXXXX placement would not be XXXXXXXX for the Student (Transcript at pages 823 and 825). XXXXXXXXX felt that a XXXXXXX XXXXXXX would XXXXXXX the Student with enough XXXXXXXXXXXXXXXX to handle the Student’s XXXXX XXXX (Transcript at page 836). An educational consultant hired by XXXXXX recommended that the Student be placed in a XXXXXXXXXX with XXXXXXX (Transcript at page 839). XXXXXXXX believes the Student requires a XXXXXX placement because the Student requires XXXXXXXXXXXXXXXXXXXXXXX (Transcript at pages 633 and 634).
The Student is on an XXXXXXXX school level. At the end of eighth grade the Student was writing at a XXXXXXXXX level and could only XXXXXXXXX math problems with XXXXXXXXXX (Transcript at page 169, 203 and 204). The Student only scored in the XXXXXXXXXXXXXX on the WIAT (Exhibit 4). The Student XXXXXXX academically, was XXXXXXXXXXXX, did not XXXXXXXXX and XXXXXXXX (Transcript at page 321 and 327). The Student’s skills were XXXX. The Student placed in the XXXXXXXXXX in math (Transcript at page 324). The Student had XXX reading comprehension, XXXXX and XXXX XXXXXXX skills. The Student had XXXXX writing skills and XXXXXXXXXXXXX in order to write sentences (Transcript at page 326). The Student was functioning on a XXXXXXXX (Transcript at page 327). As noted in the XXXXXXXXXX evaluation the Student should continue with academics, reading and writing with XXXXXXXXXX (Transcript at page 925Testimony from April 13, 2016, Exhibit P). At the end of twelfth grade the Student was still XXXX XXXX in reading, math and problem solving and XXXXXXXX on the XXXXXXXXXXXX to assist with XXXXXXXX (Transcript page 355). The Student required XXXXXXXXXXX for all subjects and would be unable to XXXXXXXXX of XXXXXXXX to take Regents exams (Transcript at page 464). The Student could
XXXXX XXXXXXXX, XXXXXXXX, XXXXXXXXXX and XXXXXX to XXXXX
XXXX (Transcript at page 487). The Student XXXXXXXX with constructive criticism and can XXXXXXXX. The Student needs XXXXXXXXX and XXXXXXX from the teacher (Transcript at pages 622 and 658).
The Student performs XXXX when academics are XXXXXXX with XXXXXXXX skills. The Student did XXXX in cooking and academic skills such as planning, budgeting, and pricing, inventory and buying were taught through the Students cooking activity. The Student was XXXXX consumer math through cooking and Regents’ skills such as proportions and percentage were XXXXXX through cooking (Transcript at pages 340, 341 and 342). The Student XXXXXX the personal finance class because of the utility of money, and health (Transcript at pages 350, 351 and 382). The Student XXXXXX better in a XXXX XXXXX program than an XXXXXX program (Transcript at pages 709 and 710).
The XXXXXXXXX recommended that the Student be placed in a XXXXXXXXX XXXXXXX academic XXXX with a ratio of XXXX to XXXX students with XXXX special education teacher and an XXXXXXX. The program should use XXXXXX XXXX XXXXXXX in a XXXXXXXXXXX. The Student should be provided XXXXX and XXXXXXXX services through age twenty-one (21) in order to help XXX XXXXX and XXXX XXXXXXXXX (Transcript at pages 823 and 825, Exhibit P).
The Student received XXXXX XXXXXXX in eighth grade to XXXXX with XXXXXX, XXXXXXXX, XXXXXXX and XXXX XXXXXX (Transcript at page 204). XXXXXXX also recommended that the Student receive XXXXX and XXXXXX therapy and that a XXXXXXXXXXXXXXXXXXX be created for the Student (Exhibit P-17). “The Student requires a XXXXXXXXXXX that XXXXX the Student with XXXXX tools and XXXXXXXXXXXX to function within a XXXXXXXXX as well as continued XXXXXXXXX and XXXXXXXXXXX that promote XXXXXXXXXX and XXXXXX XXXXXXXX between the Student’s XXXX and XXXXXXXXXX” (Exhibit P 16-17).
Services provided by XXXXXXXXXX:
The Student does not receive XXXXXXXXX at XXXXXXXXXX. The Student is not currently taking consumer math, economics, American literature, or fine arts. The Student is taking Health and Nutrition as part of the Student’s XXXXXXXXX (Transcript at pages 735, 987 and 988). The Student receives consumer math when shopping or budgeting. The Student does not receive Social Studies or Economics classes. On XXXXXXXXX the Student participates in a XXXXXXXXXX class (Transcript at pages 962 and 963). The Student is receiving instruction in basic math and reading, social studies and money management at XXXXXXXXXX (Transcript at pages 582 and 583).
XXXXXXXXXX provides a XXXXXXXXX environment than XXXXX. XXXXXXXXXX provides more XXXXXXX and has XXXXXXXX and XXXXX support (Transcript at page 583). The Student receives XXXXXXXX once per week with XXXXXXXX. The Student receives XXXXXX two to three times per week. The Student sees a XXXXXXXX at least once per month (Transcript at pages 586 and 688). XXXXXXXXXX the Student to be able to XXXXXXXXXX, being able to XXXXXXX in an XXXXXXXX, and being able to XXXXXXXXX with XXXXXXX without XXXXX (Transcript at page 692). The clinician, the therapist, student team manager, the homeroom teacher, house manager and, if necessary, the program director meet on XXXXXXXXXXXX to discuss what is going on with the Student (Transcript at page 694). The clinician sees the Student XXXXXXXXXXX and XXXXXXX in the XXXXXX as well as on XXXXXXX at the XXXXXXXX (Transcript at page 711). Staff meets every six months to update a student’s service plan and daily in the afternoon to discuss a student’s progress, individual meetings regarding this Student are held as XXXXXX the Student’s XXXXXX (Transcript at page 915). If something is going on with the Student the teachers, clinicians and residential house staff will e-mail, call or text the Student Team Manager any time of the day (Transcript at page 919). Staff contacts the Student Team Manager when the Student is having XXXXXXXXXXXXXXXXXX XXXXXXXXX and making XXXXXXXXXXXX (Transcript at page 920). The Student Team Manager then talks with the staff about the problem and provides staff with strategies and techniques to handle the problem (Transcript at page 929). The Student Team Manager will also speak with the Parent about once a month and the Student’s mother about once every eight weeks (Transcript at pages 921, 922 and 933). The Student team manager sees the Student XXXXXXXXX, in the XXXXXXXX or in his office (Transcript at page 923). Staff receives daily notes on how the Student did each day (Transcript at page 964).
The Student is on a XXX tract (Transcript at page 916). XXXXXXXXXX offers the Student a XXXXXX program (Transcript at page 585). XXXXX are being used to try to build XXXXX the Student will need to be able to XXXXXX (Transcript at pages 971 and 983, Exhibit L).
The Student is in a class with XXX other students, who range in age from seventeen to twenty-one and two XXXXXX teachers. The class spends XXXXXX of the time at various XXXXXX. Class time is devoted to XXXXXX and XXXX skills (Transcript at page 612 and 615). The class does not provide traditional XXXXX, but Students are exposed to money, what things cost, buying from a grocery store and budgeting (Transcript at pages 877, 878 and 879). Life skills are taught as part of XXXXX skills (Transcript at page 881). Post-secondary goals have been talked about with the Student (Transcript at page 974).
The Student volunteers at a XXXXXX where the Student is involved with shopping, inventory, meal preparation and serving the customers. The Student also XXXXXXX XXXXXXX and is involved in merchandizing and organizing. The Student also XXXXXX where the Student helps with inventory, unloading the food trucks and repackaging the food for the community (Transcript at page 621). The Student also does mopping and cleaning at the XXXX (Transcript at pages 887 and 898). At the XXXXXX with the assistance of a teacher the Student is involved in hanging up items and making sure they are in the proper location (Transcript at page 659). On XXXX the students shop for the XXXXX and learn budgeting, on XXXXXX the students go to museums and the XXXX and in warmer weather they hike, bike and fish (Transcript at page 925). XXXXXXXXXX uses a collaborative problem solving approach rather than a point system (Transcript at pages 632 and 656). If the Student is given a task the Student XXXX XXX cannot do the Student is being taught to come to the teachers for XXXX XXXXX and XXXX instead of just XXXXX. The teachers will use a lot of XXXXX, XXXXXX and XXXXXX with the Student in order to achieve the XXXXXX goals (Transcript at page 972). The student with the review and approval of the staff develops proposals and goals of what they want to achieve. A plan “B” or a repair contract is developed if the Student does not meet the proposed goals (Transcript at page 633). The Student likes to work out at the XXXXXX and that is used XXXXXXXX for the Student (Transcript at page 885). XXXXXXXXXX provides professional development trainings (Transcript at page 960). Progress made by the Student at XXXXXXXXXX:
XXXXX has visited the Student three or four times at XXXXXXXXXX and has noticed that the Student XXXXXXX and is able to be more XXXXX and XXXXX after becoming XXXXXXX and is XXXXX (Transcript at page 584). On a visit XXXX The Student was still XXXXX and had XXXXXXX XXXXXX but had XXXX XXXX XXXX (Transcript at page 586).
The Student is attending classes and is XXXXX than the Student did at XXXXX. The Student is in a XXXX environment and is interacting with other students XXXXX. The Student now expresses an interest in being able to work and may want to go into the clothing or contracting businesses (Transcript at pages 587 and 588).
The Educational Supervisor at XXXXXXXXXX feels the Student has XXXXXX in XXXXXXX XXXXXXX with staff members since being at XXXXXXXXXX (Transcript at pages 671 and 672).
The Student’s ability to XXXXXXXXX but is dependent on the Student’s XXXXX in the task (Transcript at page 712).
The Student shows respect to the homeless people (Transcript at pages 887 and 898).
The Student is working harder at the XXXXXX, XXXXXXX with classmates and seems XXXXXX (Transcript at page 892). The Student had XXXXXX in the XXXXXX but is doing XXXXX and is an XXXXX participant at the XXXXX activities (Transcript at page 937).
The Student has been able to XXXXXX and XXXXXX teacher and the Student’s XXXXXXXXX since coming to XXXXXXXXXX, but the Student XXXXX XXXXX (Transcript at page 943). The special education teacher at XXXXXXXXXX testified that the Student’s XXXXXXXXXX. The Student requires XXXXXXXX, XXXXXX and is XXXXXXXXX. The Student’s XXXXXXXXX when doing XXXXX the Student does XXXXXX (Transcript at page 952).
The Student has filled out mock job applications and created a mock resume, but requires XXXXXXXX (Transcript at page 973). The Student had XXXXXXXX XXXXXX and had to XXXXXXXXX and XXXXXXXXXXX XXXXXXXX s with them. As of March 2016 the Student is XXXXXXXXX in this area (Transcript at page 974).
Based on the Student’s progress and the totality of the circumstances, I find that XXXXXXXXXX is an appropriate placement for the Student because the XXXXXXXXXX program addresses the Student’s unique educational needs in a manner that has produced progress and not regression. As stated throughout the testimony the Student presents with XXXXXXX and XXXXX needs that XXXXXX with the Student’s academic abilities. The Student needs XXXXXX (Transcript at page 294), and a XXXX class size (Transcript at pages 154, 202 and 267, Exhibit D). The Student is in a class of XXX at XXXXXXXXXX with XXXXX special education teachers (Transcript at page 612 and 615).
XXXXXXXXXX provides the following XXXX supports: Around the clock XXXXXXX and XXXXXXXX support (Transcript at page 583). XXXXX counseling XXXXXXXX with more being available if needed. XXXXXX therapy XXXXXX times per week. The Student sees a XXXXXXXXX at least once per month (Transcript at pages 586 and 688). XXXXXXXX sessions focus on XXXXXX the Student to be able to XXXXXXXXXX, being able to XXXXXXX, and being able XXXXXXXXX XXXXXXXXXXX (Transcript at page 692). The XXXXXXXX sees the Student XXXXXX week XXXXXXXX and XXXXXXXXXXX as well as on XXXXXX at the XXXXXXX (Transcript at page 711). The Student team manager sees the Student XXXXXX, XXXXXX or in his office (Transcript at page 923).
Class time is devoted to XXXXXXXXXX (Transcript at page 612 and 615). A collaborative problem solving approach rather than a point system is used (Transcript at pages 632 and 656). If the Student is given a task the Student XXXXXXXXX Student is XXXXXXX and XXXXXXXXXX XXXXXXXXX. The teachers use XXXXXXX, XXXXXXX and XXXXXX with the Student (Transcript at page 972). The Student with the review and approval of the staff develops proposals and goals of what the Student wants to achieve. A plan “B” or a repair contract is developed if the Student does not meet the proposed goals (Transcript at page 633). The Student likes to work out at the XXXXXX and that is XXXXXXXXXX the Student (Transcript at page 885).
The District argues that the XXXXX provided to the Student is not individualized (Exhibit GG-19; Transcript at pages 927 and 936-Testimony from April 13, 2016). I find that the XXXXXXXXXXXX is individualized towards the Student. The Student receives XXXXXXXXXXX once per week and it is XXXXXX the Student’s XXXX XXXXXXXX the Student XXXXXXXXXXX, XXXXXXXXXX, and XXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX (Transcript at page 692). The Student and staff also develop specific goals that the Student wants to achieve (Transcript at page 633).
XXXXXXXXXX also provides XXXXXXXX to the Student by constantly reassessing the Student’s progress. The clinician, the therapist, student team manager, the homeroom teacher, house manager and, if necessary, the program director meet on an as needed basis to discuss what is going on with the Student (Transcript at page 694). Staff meets every six months to update a student’s service plan and daily in the afternoon to discuss a student’s progress, individual meetings regarding this Student are held as needed based on the Student’s behavior (Transcript at page 915). If something is going on with the Student the teachers, clinicians and residential house staff will e-mail, call or text the Student Team Manager any time of the day (Transcript at page 919). Staff contacts the Student Team Manager when the Student is having XXXXXXXX with XXXXX XXXXXXX and XXXXXXXXXXXX (Transcript at page 920). The Student Team Manager then talks with the staff about the problem and provides staff with strategies and techniques to handle the problem (Transcript at page 929). The Student Team Manager will also speak with the Parent about once a month and the Student’s mother about once every eight weeks (Transcript at pages 921, 922 and 933). Staff receives daily notes on how the Student did each day (Transcript at page 964). XXXXXXXXXX provides a XXXXXXXX program which includes academic skills to meet the Student’s specific needs. The Student is on a XXXXXX (Transcript at page 916). XXXXXXXXXX offers the Student a XXXXXXXX program (Transcript at page 585). The XXXXXXXXXXXXXXX the Student XXXXXXXXX (Transcript at pages 971 and 983, Exhibit L). The class does not provide traditional academics, but Students are exposed to money, what things cost, buying from a grocery store and budgeting (Transcript at pages 877, 878 and 879). Life skills are taught as part of XXXXXX skills (Transcript at page 881). The Student XXXXXXXXXXXXXX XXXXXXXX where the Student is involved with shopping, inventory, meal preparation and serving the customers. The Student also XXXXXXXXXXXX and is involved in merchandizing and organizing. The Student also XXXXXXXXXXX where the Student helps with inventory, unloading the food trucks and repackaging the food for the community (Transcript at page 621). The Student also does mopping and cleaning at the XXXXXXXX (Transcript at pages 887 and 898). At the XXXXXXXXXX with the assistance of a teacher the Student is involved in hanging up items and making sure they are in the proper location (Transcript at page 659). On XXXXX the students shop for the XXXXXX and learn budgeting (Transcript at page 925).
The District argues that XXXXXXXXXX is not appropriate as it is a XXXX school that provides educational services to high school students and the Student has already earned a high school diploma and is not entitled to further high school education (Exhibit DD-11). However, as determined above the Student was not eligible to graduate in June 2015 and thus did not earn a high school diploma. The Student as noted above is thus eligible to further education until graduation or age twenty-one.
The District argues that XXXXXXXXXX is inappropriate because it provides no academics to the Student (Exhibit GG-pages 9-13 and19; Transcript at pages 927 and 936-Testimony from April 13, 2016). Indeed testimony revealed that The Student does not receive formal academic classes at XXXXXXXXXX (Transcript at page 735). However, I find that the Student receives functional academics through the XXXXXXX. The Student receives consumer math when XXXX goes shopping or is do budgeting. The Student receives Health and Nutrition and physical education classes by going to the XXXXXXXX program (Transcript at pages 978 and 988). On XXXXXXX the Student participates in a XXXXXX class (Transcript at pages 962 and 963). On XXXXX the students shop for the XXXXXXX and learn budgeting (Transcript at page 925). Testimony further indicated that until the Student’s XXXXXXXX are addressed the Student will be XXXXXXXXXX an academic program. The Student has XXXXXXXX academics because of the Student’s XXXXXXXXXX issues. XXXXXXXX discussed with the Parent that the Student was XXXXXXXX and this affected the Student’s ability XXXXXXXX and XXXXXXXXXX (Transcript at page 825). The XXXXXXXXXX special education teacher testified that the Student’s XXXXX and XXXXXXX would have to be dealt with before working on XXXXXXXXX (Transcript at page 329). Thus, I find that the XXXXXXXXX academics the Student receives are appropriate while the Student’s XXXXXXX issues that XXXXXX with academics are addressed.
The District argues that XXXXXXXXXX is too restrictive a placement for the Student (Exhibit GG-16). Testimony differed as to whether the Student should be in a XXXXXXX setting. In September 2008 (Transcript at pages 144 and 194) the Student required a XXXXXX environment (Transcript at page 265). The XXXXXXXX evaluation did not indicate a need for a XXXXXXXXXXX for the Student (Transcript at pages 945 and 946-Testimony from April 13, 2016, Exhibit P). However, in a feedback session the doctor, who performed the XXXXXX evaluation, advised the Parent that a XXXXXX placement would not be inappropriate for the Student (Transcript at pages 823 and 825). XXXXXXXXX felt that a XXXXXXX setting would not provide the Student with enough academic or XXXXXXXX support to handle the Student’s XXXXXXX (Transcript at page 836). An educational consultant hired by XXXXXXXX recommended that the Student be placed in a XXXXXXX setting with academic support (Transcript at page 839). XXXXXXXXXX’s educational supervisor believes the Student requires a XXXXXXX placement because the Student requires XXXXXXXX through XXXXXXXXX (Transcript at pages 633 and 634).
The IDEA requires that a student's recommended program must be provided in the Least Restrictive Environment (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 Newington, 546 F.3d at 111; Gagliardo, 489 F.3d at 105; Walczak, 142 F.3d at 132; Patskin, 583 F. Supp. 2d at 428). In determining an appropriate placement in the LRE, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the general educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily ( See 8 NYCRR 200.6 (a) (1); Newington, 546 F.3d at 112, 120-21; Oberti v. Bd. of Educ., 995 F.2d 1204, 1215 (3d Cir. 1993) J.S. v. North Colonie Cent. Sch. Dist., 586 F. Supp. 2d 74, 82 (N.D.N.Y. 2008); Patskin, 583 F. Supp. 2d at 430; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 144 (N.D.N.Y. 2004); Mavis v. Sobel, 839 F. Supp. 968, 982 (N.D.N.Y. 1993)). The continuum of alternative placements includes instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions; and the continuum makes provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement (34 C.F.R. § 300.115(b)).
To apply the principles described above, the Second Circuit adopted a twopronged test for determining whether an IEP places a student in the LRE, considering (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate (Newington, 546 F.3d at 119-20; See North Colonie, 586 F. Supp. 2d at 82; Patskin, 583 F. Supp. 2d at 430; See also Oberti, 995 F.2d at 1217-18; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048-50 (5th Cir. 1989). I find that the placement at XXXXXXXXXX is not too restrictive for the Student. Testimony indicated that the Student had XXXXXXXXX XXXXX in a regular academic classroom and XXXXXXXXXXXX classroom (Transcript at pages 366, 337, 338 and 1005; Exhibit G-4). In 2008 the Student was in a XXXXXXXXX placement (Transcript at pages 144 and 194). The Student is exposed to the XXXXXXXX as all the XXXXXXXXXX are in the community, the Student goes to the XXXXXX and the library and on XXXXXXXX there are trips to museums (Transcript at pages 621 and 925). Because of the Student’s XXXXXXXX it would be harmful to other students for the Student to be in a regular classroom (Transcript at pages 319-322). The District argues that XXXXX, the school the District originally disapproved of (Transcript at pages 773, 851 and 865) would provide a less restrictive environment (Exhibit GG- 17). While XXXXX may have been an appropriate placement when the CSE met on May 7, 2015, it is noted that in July of 2015 the Student had a XXXXXXXX, after which two educational consultants recommended an XXXXXX XXXXXXX (Transcript at page 839) signaling a need for a more XXXXXXX environment. For all of the above reasons, I find that XXXXXXXXXX is not too restrictive a placement to meet the Student’s XXXXXXXX and educational needs.
The District argues that XXXXXXXXXX does not provide a BIP, speech therapy, occupational therapy or academic modifications and accommodations as recommended by the XXXXXXXXX evaluation (Exhibits GG-17 and P-17). While XXXXXXXXXX does not provide these services, it is noted that the Student is receiving real life XXXXXXXX therapy through XXXX XXXXXXXX. As stated above a unilateral placement need not provide all the services recommended in an evaluation. (Frank G., 459 F3d at 364-65). The District also argues that XXXXXXXXXX’s therapists and counselors are not certified (Exhibit GG-11 and 12). However case law holds that the private school need not employ certified special education teachers or have its own IEP for the Student (Carter 510 U.S. 7; Application of the Bd. Of Educ., Appeal No. 08-085; Application of the Dep’t of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-105). Testimony indicated that XXXXXXXXX, the clinician has a Master’s degree (Transcript at page 680), and both of the Student’s special education teachers have Master’s degrees. XXXXXXX has a Master’s degree (Transcript at pages 946) and XXXXXXXXX was to complete his Master’s degree by August 2016 (Transcript at page 874). Also, XXXXXXXXXX is approved by the State of Massachusetts as a special education school (Transcript at page 607).
The appropriateness of a unilateral placement is based on whether the child is receiving educational services likely to produce progress not regression. Frank G. and Dianne G, v. Bd. Of Educ. Of Hyde Park, 459 F3d 356 (2d Cir 2006). Testimony revealed the Student has made the following progress: the Student’s XXXXXXXXXX have XXXXXXX (Transcript at page 586); the Student is XXXXXXXX (Transcript at page 587); the Student has XXXXXXXXX with staff members (Transcript at pages 671 and 672); the Student’s ability to XXXXXXXX; the Student is working harder at the XXXXXXXXXXXXX, XXXXXXXXX with classmates and XXXXXXX (Transcript at page 892); the Student XXXXXXXX and is XXXXXXXX; the Student’s XXXXXXXXXXXXX the Student does not want to do (Transcript at page 952); the Student has learned to XXXXXXXXXXXXXXXXX (Transcript at page 974).
The District argues that evidence of the Student’s improvement in XXXXXXXXX areas does not satisfy the Parent’s burden to show that the Student made progress and the placement was appropriate. The District cites to Hardison v. BOE of the Oneonta City Sch. Dist., 773 F3d 372, 64 IDELR 161 (2d Cir 2014) (Exhibit GG-13). I distinguish Hardison in that the student in Hardison was placed in academic program (773 F3d 380, 382, and 383) unlike in this case where the Student has been placed on a XXXXXXXX. As noted above the Student has made progress in the XXXXXXXX program. While the Student’s progress XXXXXXXXXX (Transcript at pages 741, 983, 1005 and 1006), there was no testimony indicating that the Student had regressed while at XXXXXXXXXX. I find that pursuant to New York State Education Law Section 4404(1) (c) the Parent has met their burden of production and persuasion regarding the appropriateness of the Student’s placement at XXXXXXXXXX and that based on the “totality of the circumstances” the Student’s placement at XXXXXXXXXX for the 20152016 school year was appropriate to meet the unique educational needs of the Student (See Gagliardo, 489 F.3d at 112; and Frank G., 459 F.3d at 364).
Who do the equities favor?
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 (Cir. 2000); see Carter, 510 U.S. at 16 ("Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412 (a) (10) (C) (iii)); see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 (S.D.N.Y. March 30, 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005, aff'd, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 (S.D.N.Y. 2005); (See also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 (N.D.N.Y. 2001); Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).
I find that the Parent’s actions in not informing the District that the Student would not be eligible to graduate in June 2015 create an equity factor weighing against full tuition reimbursement for the Parent, especially when the Parent was aware that the Student would not graduate and did not share this knowledge with the District (Transcript at pages 780,781,788, 790 and 791). The District maintains that the Parent and XXXXX mislead the school district completely with respect to credits earned, the fact that the courses at XXXXX were XXXXXXXXXX, the fact that the Student did not take sequences, and the fact that the Student did not take Regents as none of these facts were disclosed to the District until the May 7, 2015 CSE meeting (Transcript at page 930Testimony from April 13, 2016, Exhibit BB-9). I agree with the District’s equity argument. Testimony revealed the following: The Student’s mother gave no indication that she did not believe the Student would graduate in June 2015 (Transcript at 64 and 65). At the June 21, 2013 CSE meeting the Parents gave no indication that they did not believe the Student would earn a diploma at the end of the 2014-2015 school year (Transcript at 73).
At the July 10, 2014 the CSE meeting the Parents gave no indication that the Student was not on track to graduate in June 2015 (Transcript at pages 271 and 272). At this meeting XXXXX did not indicate that the Student was not completing sequences needed for a high school diploma or that the courses the Student was taking were not high school credit courses or that the Student was learning on a XXXXXXXXXX (Transcript at pages 913 and 914, Testimony from April 13, 2016). At the May 7, 2015 CSE meeting XXXXX did not indicate that the Student was not completing sequences needed for a high school diploma or that the courses the Student was taking were not high school credit courses or that the Student was learning on a XXXXXXXXXXXX (Transcript at pages 914 and 919, Testimony from April 13, 2016). XXXXX never discussed with
XXXX. XXXXXX about the Student earning a Regents diploma or taking Regents courses (Transcript at pages 109,110 and 247). No one from XXXXX stated that the Student was lacking the necessary Regents credits or sequences to earn a high school diploma (Transcript at page 938-Testimony from April 13, 2016). The Parents neither before or after the May 7, 2015 CSE meeting ever told XXXXXXX that the Student had not taken the proper sequences or Regents exams necessary for a diploma (Transcript at pages 939 and 940-Testimony from April 13, 2016). The special education teacher from XXXXX did not mention that the Student did not have the proper credit and subject sequences and had not taken any Regents or Regents Competency tests in order to graduate (Transcript at page 362).
In the spring of 2015 XXXXXXX, the XXXXX guidance counselor advised the parents that the Student did not have the necessary course sequences to graduate and had not taken any Regents (Transcript at pages 449, 450 and 469). XXXXXX never communicated this or any other information to anyone in the District (Transcript at pages 453, 454 and 470). XXXXXXXX recognized that the Student might not have had enough credits or XXXXX to graduate at the end of the 2014-2015 school year but XXX never discussed this or the fact that the Student had not taken any Regents exams with the District (Transcript at pages 780,781,788, 790 and 791). The District argues that there should be a negative inference from the fact that the Student’s mother did not testify (Exhibit GG-25). However, it is clear from District Exhibits 23 and 24, the XXXXX Service Tracking Sheet and Note from XXXXX records about a Parent contact that the Student’s mother knew that the Student would not graduate in June 2015 and that this information was never shared with the District. All of the above evidence and testimony indicates that the District was never told that the Student would not be eligible to graduate in June 2015, creating an equity argument against full tuition reimbursement for the Parent. I note that the above testimony also indicates that XXXXX was aware that the Student would not graduate in June 2015; however, XXXXX is not a party to this action.
Testimony also revealed that the Parent failed to advise the CSE that a XXXXXXXXX evaluation was being done on the Student which had started in April 2015 (Transcript at pages 792 and 921, Testimony from April 13, 2016, Exhibit P). The Parent never sent a copy of the XXXXXXXX evaluation, which was received by the
XXXX. XXXXX about eight weeks after the May 7th, 2015 CSE meeting (Transcript at pages 850, 859 and 870), to the District (Transcript at page 793).
The Parents also did not provide the required ten day notice. XXXXXXXX never received a ten day notice from the Parents indicating that they were placing the Student in a XXXXXXXX placement for the 2015-2016 school year (Transcript at page 278), although XXXXXXXXX testified that notice was provided to the District of the Student’s placement at XXXXXXXXXX (Transcript at page 580). The Parent’s Amended Due Process Complaint (Exhibit CC-4) states that the Parent sent a ten day notice on July 24, 2015 of the Parent’s intent to place the Student at XXXXXXXXXX. However, the Parent did not submit the ten day notice as evidence which also weighs strongly as an equitable consideration against granting an award of full tuition reimbursement. The XXXXXXXXXX Treatment Plan lists the Student’s enrollment date as August 10, 2015 (Exhibit L). It is well settled that the IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412 (a) (10) (C ) (iii) (I); see 34 C.F.R. § 300.148 (d)(1)). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a FAPE can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004)). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 (6th Cir. 2003); Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 (1st Cir.2002)); See Frank G. v. Bd. of Educ., 459 F.3d 356, 376 (2d Cir. 2006); Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007) I, therefore find that based on the Parent’s actions the Parent is not entitled to full tuition reimbursement, but only a partial award of tuition reimbursement for tuition at XXXXXXXXXX for the 2015-2016 school year. Based on all of the above and in the exercise of my discretion in fashioning equitable relief, I find that the parents are entitled to partial tuition reimbursement of $6,500 per month for the months of August 2015 through June 2016 for a total of $71,500 ($6,500 X 11 months) this being the amount the District was required to pay pursuant to the parties stipulation while the Student was at XXXXX. The District recognizes that despite the Parent’s actions the Student is entitled to a FAPE and request that I remand the case to the CSE to develop an IEP for the 2016-2017 school year and I shall order same (Exhibit GG-30 and 31).
However, I also find that the District’s actions in never asking at any CSE meeting if the Student had taken Regents exams creates an equity argument against the District’s request for an award of no tuition reimbursement. I find that even if the District was not told that the Student did not have the proper credits, sequences or Regents to graduate in June 2015 and did not know that XXXXX only issued Regents or local diplomas (Transcript pages 417, 420 and 469), the District should have asked XXXXX if the Student was ready to graduate and what XXXXX required to issue a diploma (Exhibit FF-24). XXXXXXX, a very experienced director of special education services (Transcript at pages 34 through 42) in a top ranked school district (U.S News and World Report in 2016 ranked Manhasset#21 in High Schools in New York State), gave extensive testimony about the Student earning twenty two credits (Transcript at pages 91 92, 94, 95,106,107,119, pages 226 through 231 and Exhibits 12, 13, 17 and 20). However, the Student would have required twenty two credits and Regents exams. XXX XXXXXXX never explored whether the Student was taking Regents exams and in fact stated that XXX never asked XXXXX staff if the Student was sitting for Regents exams. XXXXX did not ask why Regents were not listed on the XXXXX transcripts because XXXXX is a private school (Transcript at pages 958,965 and 959-Testimony from April 13, 2016). If XXXXXXXXXX determined that the Student would receive a diploma from XXXXX then it is unclear why as stated in testimony she never asked XXXXX what their diploma requirements were and if the Student was meeting them. The District never called XXXXXXX about what XXXXX required for a diploma nor was XXXXXX asked to attend any CSE meetings to talk about what XXXXX required for a diploma (Transcript pages 420, 421 and 463). It would not have been a hardship on the District or cost the District any time or money to have asked the following two questions at any of the CSE meetings: Was the Student taking Regents exams and what were the requirements for a XXXXX diploma? This would have clarified for all involved the status of the Student and when the Student would graduate. I, therefore, rule against the District’s argument for no tuition reimbursement.
Reimbursement sought must be reasonable (See Florence County Sch. Dist. V. Shannon Carter, et.al. 519 U. S. 7, 114 S. Ct. 361, 29 IDELR 532 (1993). Reimbursement may be denied if the cost of the private placement is unreasonable. The District argues that the Parent has presented no evidence of tuition costs at XXXXXXXXXX or deposits or payments made to XXXXXXXXXX (Exhibit GG-18). Indeed the only evidence about tuition was the XXXXXXXX testimony that tuition at XXXXXXXXXX is twelve thousand ($12,000) per month (Transcript at page 586). It is noted that this tuition covers a XXXXXXXX school with a class size of XXXX students and two teachers (Transcript at pages 612 and 615). It is also noted that the District presented no evidence arguing that the $12,000 per month tuition is unreasonable. However, since I have denied the Parent’s claim for full tuition, I need not reach the question of whether the $12,000 per month tuition is reasonable. I will require the Parent to submit tuition bills and proof of payments made before the District reimburses the Parent for partial tuition reimbursement.
Does the Parent’s request for tuition reimbursement violate the 2012 Stipulation of Settlement between the Parties?
The Parties entered into a stipulation on October 23, 2012 in which the District agreed to reimburse the Parents Six Thousand Five Hundred Dollars ($6,500) per month for tuition at XXXXX for the September through June school year. The Stipulation covered September 2012 through June 2015 as June 2015 was when the Student was expected to graduate (Transcript at 57 and 59, Exhibit 3). The District argues that the Parent’s request for tuition reimbursement for the 2015-2016 school year violates the Stipulation (Exhibit BB-12 and 13 and DD-14 and 15; Transcript at page 26). I disagree and find that the Parent’s request does not violate the Stipulation. The Parents are not seeking further tuition reimbursement for any of the years covered by the Stipulation, but rather reimbursement for the year after the period covered by the stipulation. Furthermore, the Stipulation recognizes that the Student might have educational needs after June 2015 as indicated by paragraph twenty (20) of the Stipulation which states that the Stipulation is not to be relied upon to “establish or support the position that XXXXX is, or should be considered as, the then pendent or status quo placement for the period following the end of the 2014-15 school year” (Exhibit 3-8). Additionally, as argued by the Parent, Parent’s cannot bargain away a student’s right to a FAPE (Exhibit FF-23).
Order
I find that that under New York State Regulations the Student was not ready to graduate in June 2015 and did not qualify for either a Regents or local diploma or a Diploma from XXXXX.
I find that since the Student did not graduate in June of 2015, the District was responsible to provide a FAPE to the Student for the 2015-2016 school year. I find that the District failed to provide a FAPE for the Student for the 2015-2016 school year because no IEP was developed for the 2015-2016 school year. I find that based on the totality of the circumstances XXXXXXXXXX was an appropriate placement for the Student for the 2015-2016 school year because XXXXXXXXXX addressed the Student’s unique educational needs in a manner that has produced progress and not regression. I find that the Parent’s request for tuition reimbursement does not violate the parties Stipulation dated October 23, 2012 since the Parent is seeking reimbursement for the 2015-2016 school year which was not covered by the Stipulation. I find that the District’s actions in not asking at any CSE meeting if the Student had taken Regents exams creates an equity argument against the District’s request for an award of no tuition reimbursement I find that the Parent’s actions in not informing the District that the Student would not be eligible to graduate in June 2015 create an equity factor weighing against full tuition reimbursement for the Parent.
I find that the Parent is entitled to partial tuition reimbursement of $6,500 per month for the months of August 2015 through June 2016, for a total of $71,500 ($6,500 X 11 months) this being the amount the District was required to pay pursuant to the parties Stipulation.
It is ordered that by August 26, 2016 the Parent is to submit copies of the contract with XXXXXXXXXX, the tuition bills for August 2015 through June 2016 and proof of payment for these months to the District.
It is ordered that within forty-five (45) days from the receipt of the Parent’s proof of payment the District is to issue a check to the Parent for seventy-one thousand five hundred dollars ($71,500) representing partial tuition reimbursement.
It is ordered the CSE reconvene by August 26, 2016 to develop an IEP for the Student for the 2016-2017 school year.
It is ordered that the Parent provide to the CSE in advance of the CSE meeting the Student’s records from XXXXXXXXXX and any and all evaluations of the Student performed between August 2015 and August 2016.
Dated August 8, 2016 Ellen Abberbock, Esq. Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department 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 seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35- day period.” (8 NYCRR 279.2 [b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
.
Exhibit List
Parent’s Exhibit Date Name of Document # of Pages A 8/25/11 IEP for 9th grade 16 B May 2015 NYSED Diploma 15
Requirements C 12/18/15 NYSED Continuum 13
of Services
Regulation D 12/9/10 IEP for 8th grade 12 G 5/28/11 XXXXX 8th Grade 6
Academic Annual
Review H 5/1/14 XXXXX 11th grade 3
Academic Annual
Review I 4/1/15 XXXXX 12th grade 6
Academic Annual
Review J 5/7/15 XXXXX Annual 2
Review Worksheet K 4/17/15 XXXXX Social 2
Emotional Annual
Review
L 10/10/15 XXXXXXXXXX 8
Treatment Plan
M 1/8/16 XXXXXXXXXX 6
Response to
Subpoena N 12/15/15 Report 8 O 1/4/16 Report 8 P 5/21/15 Evaluation 20 District’s Exhibit Date Name of Document # of Pages 1 11/13/15 Letter to XXXXX 1 regarding subpoena 2 10/30/15 Subpoena to 3
XXXXX
3 10/23/12 Stipulation of 10
Settlement 4 1/8/13 Student Information 17
Summary and Three
Year Re-evaluation
Review IEP 5 1/18/13 Prior Written 3
Notice to 6 6/21/13 IEP for 11th grade 17
7 8/30/13 Prior Written 3
Notice to 8 7/10/14 Student Information 18
Summary and IEP
for 12th grade 9 8/13/14 Prior Written 3
Notice to 10 8/13/14 Prior Written 3
Notice to 11 5/7/15 Student Information 20
Summary and
Three Year Re-evaluation Review
IEP
12 4/28/15 Third Quarter 12th 1
grade Report Card
2014-2015 13 4/28/15 Official transcript 1
class of 2015 14 3/10/09 NYSED Letter to 1
XXXXXXXX
15 Undated Fourth Quarter 11th 1
Grade Report Card 16 Undated Fourth Quarter 10th 1
Grade Report Card
for 2012-2013 17 Undated XXXXX 12th grade 1
2015 Transcript 18 12/2/14 Letters to XXXXX 2
Confirming
Referral to
XXXXXXX
19 3/31/15 Written Notice 6
upon graduation or
Aging Out 20 Undated Fourth Quarter 12th
Grade Report Card
2014-2015 21 7/2/15 Prior Written 3
Notice 23 2/15 XXXXX Service 1
Tracking Sheet 24 11/12/14 Note from XXXXX 1
records about a
Parent contact 25 11/5/15 E-mail String 2 Hearing Officer’s Exhibits AA 6/15/15 Due Process 4
Complaint BB 7/11/15 District Response to 15
Due Process
Complaint CC 8/9/15 Amended Due 6
Process Complaint DD 9/8/15 District Response to 16
Amended Due
Process Complaint EE 12/9/15 Second Subpoena 2 FF 5/10/16 thru E-mails Requesting 2
7/25/16 and Granting an
Extension GG 6/24/16 District’s Closing 32
Brief HH 6/24/16 Parent’s Closing 29
Brief