New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 128556

Student’s Name:

Date of Birth:

District: 2

Hearing Requested By: Parent

Date of Hearing: October 21, 2010

October 28, 2010

December 8, 2010

March 16, 2011

April 7, 2011

Hearing Officer: Lynn Almeleh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 21, 2010

Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 28, 2010

Student

Parents

District Representative — DOE

School — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 8, 2010

Student

Student

Student

Student

(via telephone) — Student

District Representative — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 16, 2011

Student

Student

Student

Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 7, 2011

Student

Student

Student

Student

(via telephone) — Student

Physical, (via telephone) — Student

District Representative — DOE

Procedural Context — DOE

On January 19, 2011, I was appointed to hear the matter of (“ ”) versus the New York City Department of Education pursuant to the Individuals with Disabilities Education Improvement Act, (“IDEA”) 20 U.S.C. Section 1415 (f)(1). This appointment followed the recusal of a prior Impartial Hearing Officer who had conducted an earlier pendency hearing on October 21, 2010 as well as additional hearings on the substantive merits on October 28, 2010 and December 8, 2010. On April 7, 2010 the undersigned conducted a further hearing on the merits at which time the parties were offered an opportunity to submit closing Memoranda of Law. As a result thereof, the compliance date for issuing a decision in the above-referenced matter was duly extended. Specifically, it is noted that this is a Parental request for reimbursement of related services provided during the 2010-2011 school year. In furtherance thereof, the Parent has defended the related services program she has implemented privately, and relies upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993). The parties do not dispute the appropriateness of the child’s educational placement at the School (hereinafter “ ”), a placement funded by the Department of Education, (“DOE”) as a component of the child’s educational programming. A list of persons in attendance and of evidence is appended hereto. The School District’s Case testified as lead witness for the Department of Education. Ms , a Board Certified , is currently the of the ,a school based upon the protocol of (“ ”) . Her duties include both administrative and clinical responsibilities and in the latter capacity, she is familiar with through classroom observations, training and individual staff meetings. The witness testified that is assigned to a small classroom with three other whose educational profiles are similar to that of Services are delivered within a . utilizes an interactive schedule reflecting half hour segments in which rotate. Monthly clinic meetings and visits are scheduled for each child and is encouraged. In this , and which may not be apparent within the school setting may be addressed. Ms. noted that the Parent has been actively involved in these meetings. The child additionally participates in an extended school year. October 28, 2010 Tr. at 20-30.

Describing strengths, Ms. observed that the child is very motivated to be independent and is an “excellent schedule follower.” He demonstrates strengths and can readily . As a result, the child is capable of performing lengthy response chains for requiring many steps. In contrast, exhibits and challenges as well as clear / which may include , rigidities and resistance to correction. Ibid. at 44. The student engages in , but does not avail himself of appropriate materials. More significantly, relies upon scripted conversation to with .

Although the student is capable of understanding , presents with limited and . As such, is unable to effectively descriptive , including , and . Similarly, his articulation is poor and the clarity of his production compromises his . This is by the volume in tends to speak. The witness testified that this information was provided by the student’s during the May 26, 2010 CSE, and referenced within the Individualized Education Program (“IEP”). (Exh. 2 at 3)

In furtherance thereof, Ms. noted that memorialized several programs which the School had implemented in order to address these deficits. This included sequencing tasks directed at extending the length of utterances such that both and are developed. In this manner, is expected to respond in a correct manner which is articulated clearly. October 28, 2010 Tr. at 50, 58 In addition, has a program which specifically addresses his ability to modulate the volume of his . Finally, the School a protocol which addresses use of . (Exh. 2 at 7-10) Scripting is additionally incorporated into the School’s through its greeting and .

In terms of receptive skills, the witness testified that there is a receptive language component inherent in instruction throughout the school day even, for example, when math skills are addressed. Given the intimacy of the pupil/personnel ratio, comprehension is constantly facilitated through frequent incidental learning opportunities in a language enriched program. Ms. noted that many expressive tasks require the ability to attend to a stimulus, make receptive discriminations and follow instructions. For example, during math, is learning to count by multiples.^[1] In this manner, in may be addressed concurrently, as the student must discriminate by tasks and by materials assigned to each category of multiple. October 28, 2010 Tr. at 54. Nevertheless, in terms of articulation, the witness did not know whether the student’s were to , or the lack of has for him. Ibid. at 120-122. She added that there is no one on who is trained in “ ” or . Similarly, the School does not employ a licensed , , or .

Although the child’s IEP explicitly recites many of these goals, program includes instructional for additional skills which may not appear within the IEP document itself. Thus, each child’s program includes a program book which reflects the totality of target , descriptive criteria for successful acquisition and regarding and frequency. This data is ultimately graphed and as a for . Although the child does not require a , the includes a protocol for procedures which support his for prompting.2

Ms. additionally noted that as a her knowledge of is limited and the School does not have a . Rather, she is trained to assess the of these through quantification of observable or . In this manner, acceptable responses are identified and substituted for and - . Ms. testified that has been particularly responsive to which has been utilized as a means of introducing the student to appropriate hall . Ibid. at 71.

The witness testified that did not exhibit evidence of , although clearly were not . She noted, however, that did not have the same meaning to him as his . As a result, had not been . Notwithstanding this, Ms. testified that the student had no with , a , from and which require a “pretty level of ” and - . She noted that he was such an “excellent drawer” that personnel had made the decision to mainstream in class. Ibid. at 73-74.

In terms of his , Ms. testified that is able to a / . He is additionally able to follow an which includes and - . Although she acknowledged “. . . are there certain things that look different in him than typical ? Yes. Is it about some ? Or is it about the fact that he sort of enjoys engaging in that looks different from other ? I don’t have the answer to that. .” She added that she had not observed evidence of “ ” and, although his was not always appropriate when sitting, in fact, the student had improved in this area. October 28, 2010 Tr. at 74, 79 In addition to , Ms. testified that the school was with as well as a , and . In this manner, the witness believed would eventually facilitate the of and appropriate participation within .

Although Ms. was aware that the had objected to the reduction and/or termination of related services, Ms. opined that these needs were being addressed through the school’s and some of his IEP goals. She testified, “So it was felt that those services certainly weren’t necessary in order to continue to see during the school day.” October 28, 2010 Tr. at 83-84.

On cross-examination, Ms. acknowledged that she had never known when he was not receiving related services. She, additionally, could not determine whether had as she had not observed these limitations during the school day. She did not know whether the child from or motor planning deficits and could not attribute his to some internal disability or the absence of opportunity. Nevertheless, she did not believe required physical services, although in fact, she had never recommended for a child at . October 28, 2010 Tr. at 118-119.

In July 2010, began to demonstrate a in his . Reviewing the schedule, Ms. testified that many of now related to and, as a result, several goals had been . In reviewing the child’s schedule, the witness acknowledged that several of the student’s goals were not being addressed. This included remaining on for in a , by , and , comparing numbers for “more or less.” In contrast, other goals which were indeed being addressed on an on-going basis did not appear on the schedule. October 28, 2010 Tr. at 105-117.

On May 26, 2010 the witness participated in an Annual Review for the child. In addition, the child’s classroom teacher participated along with , of and and Committee on Special Education (“CSE”) representative . An was present during the proceedings. Although no were available, their reports were presented to the CSE and the IEP included the providers’ present levels of performance. Ibid. at 27-28,

139. As a result of these proceedings, the CSE continued its recommendation for , but terminated eligibility for the related services of and while reducing and language services. She did not recall whether the CSE had considered any formal related services evaluations at this time other than reports submitted by the Parent’s . The witness was aware, however of the and physical recommendations for continued service, a determination with which she disagreed. Ultimately, the Parents were advised that NYSC does not offer related services and that if they objected to their absence, other program models could be explored. October 28, 2010 Tr. at 143- 144 It appears that no other options were discussed, however.

has been a at for approximately one year and additionally testified on behalf of the Department of Education. Mr. is dually certified in general and special education. He has served as teacher for approximately one year. As such, he is familiar with the child’s program book which includes protocols for , development, math skills, social skills and fine motor coordination. December 8, 2010 Tr. at 154-155; (Exh. 12)

The witness noted, in particular, that during the summer of 2010, began to exhibit significant precipitated by error correction or direct instruction in - . As a result, had been so that could in order to deescalate the problem which would normally ensue. This programming had, by necessity, replaced other academic goals which had previously appeared on the child’s IEP. In particular, goals involving labeling rooms and places, answering “wh” questions, participating in art and completing within designated time intervals had been until the child’s could be reduced. Ibid. at 159 Mr. observed that the child’s schedule is updated on a basis.

The witness described a child with both receptive and . His receptive needs were addressed throughout the day as was consistently asked to comply with verbal instructions presented differentially along with demands for task identification. Similarly, a number of programs had addressed the student’s ability to express choice preferences, answer “yes” or “no” questions appropriately, utilize target phrases while engaged in computer play as well as initiate appropriate conversation with peers and personnel. December 8, 2010 Tr. at 162-163. The witness acknowledged that while exhibited articulation and volume issues when speaking, the child could be understood. As a result, the student’s goals were directed towards the development of language content rather than refining articulation.

Referencing the student’s October 1, 2010 Report, testified that had ed in the areas of identifying choices accurately, sequencing pictures, applying pronouns correctly and engaging in scripted conversations. He had mastered additional labeling goals and had ed with his use of checklists and employing target phrases while playing video games. Mr. additionally noted that the student had additionally made in terms of modulating volume. Ibid. at 168 In math, the child had recently reached a target goal of counting by fours to 20 without a number line. In terms of social and leisure goals, the child continued to demonstrate in working cooperatively with other children during leisure activities.

Although the witness testified that he had not observed any fine or gross motor deficits which had impeded ability to learn at school, these skills were addressed incidentally throughout the day. The witness noted that the child learned new gross motor exercises through imitation and modeling, adding that he had not perceived any motor planning deficits in nor had he observed their impact ability to learn within the classroom. Ibid. at 179. Thus, was able to successfully complete an exercise schedule which included utilizing a treadmill, exercise bike, jumping on a trampoline and playing basketball in addition to different callisthenic activities. December 8, 2010 Tr. at 169. In working with , the witness had not observed the presence of poor balance or posture as an issue for the student.

Similarly, Mr. opined that while fine motor coordination was “probably” not age appropriate, these skills were addressed generally throughout the day and specifically within programs which required the child to draw a picture from a checklist or complete written checklists and word searches. The Parent’s Case is a for . She is licensed in New York State as a and and is a Board Certified . In this capacity, Ms s, observes their sessions and meets weekly to discuss the child’s . She has known intermittently for the past 8 years. (Exh. E)

Describing the child’s , Ms. testified that his are PROMPT3 trained and utilize this approach within an framework to improve the quality of production. In this manner, “we do a lot of shaping with their hands to teach them where to place the articulation, the timing, the voicing, the nasality, all the segments that are required for production.” December 8, 2010 Tr. at 187. Articulation is addressed by teaching the child how to control the oral musculature which produces sounds and data is taken in order to assess . Although the PROMPT methodology is a projection protocol, Ms. acknowledged that it is not the only way to achieve these goals, but then stated that it was a necessary component of program.

In May 2010, the CSE convened for the purpose of developing an IEP for the upcoming 2010-2011 school year. Ms. summarized the report submitted on behalf of . (Exh. C) The witness described a “very verbal child” capable of utilizing six word sentences, who could additionally read a sentence of seven to ten words. Ibid. at 191. Notwithstanding this, continued to with reading comprehension, auditory recall and pragmatics. His intelligibility was further compromised by trunk support, his and the ability to produce clear sounds. The witness opined that articulation were additionally caused by oral motor weaknesses and, in part, a lateral lift.

Ms. noted that intelligibility when reading words fell at 58%, but opined that this number would likely fall if assessed during spontaneous . Although is directed at developing fluidity, the witness acknowledged that “he does have a big component of in his because again he gets agitated and will and has his .” During these times, an protocol is implemented.

Ms. noted that the are additionally incorporating programs for and reading comprehension for which sequencing cards are utilized. Lastly, the testified that a greeting protocol is incorporated into the child’s session along with teaching how to request a break as a means of developing pragmatic skills. She described a which, , included a or , and the of for “wh” questions, sequencing and a greeting. Ibid. at 196-197. Although some of these goals appeared duplicative of those addressed at , Ms. believed it important to reinforce and generalize these skills across settings. December 8, 2010 Tr. at 208.

Although Ms. described as “ ” at the beginning of the school year, the witness opined that his had eventually subsided and the child had

An acronym for “PROMPTs for Restructuring Oral Muscular Phonetic Targets”. demonstrated in many of the areas described earlier. Nonetheless, while his had developed significantly, his and remained and now included “ that we have to address.”

Ms. testified that she had not been consulted by anyone regarding the decrease in the Department of Education’s recommendation for and . In furtherance thereof, Ms. opined that the decrease in services from five (30 minute) sessions per week to two (30 minute) sessions per week would probably result in a higher of as would experience frustration when unable to express his needs. December 8, 2010 Tr. at 201, 203-204. She noted that the child’s management issues consumed a great deal of time and, in actuality, would benefit from a longer session, a recommendation which was ultimately made. Nevertheless, the witness testified that required , at the very least, as originally mandated, an opinion shared by the with whom he works. Ibid. at 211.

The witness further opined that IEP did not sufficiently address the child’s needs as it did not address , , or . She further opined that the IEP had not included goals for nor had it included provisions for expressing , i.e. through with .

- additionally testified on behalf of the Parent. She is the at . As such, she does not service directly, but with his . During the 2010-2011 school year, she had only observed once. This occurred approximately three weeks prior to her testimony. On other occasions, she has informally observed the child while delivering services to another student. She has never serviced the child directly nor has she spoken with personnel from . April 7, 2011 Tr. at 292, 295.

She described as a child with and , / and . An is utilized as an adjunct to more . exhibits which affect his ability to copy materials, follow directions and write, all of which exert an impact upon his in general. April 7, 2011 Tr. at 280-283. As an example, when writing and this reduces his and . As previously testified by Ms. , Ms. - also noted that certain goals had been while the School addressed negative . Ibid. at 285. During this time, the child has spent an increasing amount of time in the as a means of -.

The witness further noted that has - in terms of his ability to maintain an of . Specifically, the child requires in order to his needs. In furtherance thereof, avails of the for - , an which his to or . - and are additionally supported through the use of and .

In reviewing the May 26, 2010 IEP, Ms. - opined that the of goals rendered the IEP inappropriate. As such, the witness noted that she would have included a goal of - , and a / , all of which would to independently. In the absence of these goals, Ms. - did not believe would be able to meet his IEP goals. Ibid. at 289-290. Nonetheless, the witness acknowledged that she had not spoken to , had not the and was not familiar with program. In reviewing the child’s IEP, however, Ms. - observed that none of the were addressing / or goals. If anything, the was addressed indirectly through a .

additionally testified on behalf of the Parent. is a who holds a in his . He has worked directly with since 2009. The witness described a child with , endurance and , all of which the child’s . In addition, noted that exhibits planning . (Exh. 11) Although the is able to many , he does them in an form which is not age appropriate. April 7, 2011 Tr. at 313. The witness testified that these did not compromise his ability to function at a , but would have an impact upon his ability to within and as well as during playground activities. He noted that utilizes a which could be in close or during . Ibid. at 313-315.

additionally noted that exhibits poor -, and easy which contribute to and form when engaging in activity. Finally, the witness described a number of techniques in which the child’s and are addressed through various courses and games.

is . She provided a brief history of educational experiences and the he has received since early . Since entering , her has always received (5 x 30), and .

On May 26, 2010 the Parent attended a CSE meeting in the of a , although she did not believe she had executed a waiver. December 8, 2010 Tr. at 232. During the course of the meeting, the child’s present levels of performance were discussed along with a review of the , and reports. Although efforts to contact the individual were made, none were available. The witness indicated that Ms. believed a reduction in was indicated as the School was addressing these goals within their day. When the IEP was ultimately reviewed, Ms. testified that it had not included all of the goals which had been recommended by the various service .

At some point during the 2010-2011 school year, began exhibiting which with his ability to function within the classroom. At this time, testified that advised the Parent they would be reducing academic demands until they could address his management issues. Ibid. at 239-240. Although some of these al to private sessions, Ms. believed their had enabled them to continue with certain goals previously discontinued by . In addition, these services generated opportunities for generalization. In particular, the PROMPT methodology had successfully addressed oral motor planning and articulation.

Similarly, opined that continued to exhibit , , , and which could only be addressed by a or . In particular, she noted that does not have a sensory gym, a key component of needs and his ability to - . Ultimately, the Parent did not feel the placement was appropriate unless related services could be restored in full. Ibid. at 256-257. The Department of Education’s Position

The Department of Education maintains that it has provided with a free and appropriate public education. In particular, it maintains that the IEP of May 26, 2010 is valid and consistent with its mandate pursuant to both Education Law 4402(2)(a) and 8NYCRR 200.6 §(a)(1).

In furtherance thereof, the School District asserts that the IDEA simply requires the School District to provide a Free and Appropriate Public Education (hereinafter referred to as a “FAPE”) and is not compelled to maximize or optimize the child's educational benefits. In view of the foregoing, the School District maintains that compliance with its IDEA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits. Its duty is simply fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child” (Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her parents, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 [2d Cir.1998]). In further support, the Department of Education maintains that “A school district fulfills its substantive obligations under the IDEIA if it provides an IEP that is Likely to produce , not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement (emphasis added) (Cerra v. Pawling Cent. School Dist. 427 F.3rd 186, 195 [2nd Cir. 2005]). The Parent's Position

The parent asserts that the Department of Education stands in abrogation of its duty to provide G.P. with a free and appropriate public education. Specifically, counsel maintains that the May 26, 210 IEP reflects a number of substantive and procedural errors which, in aggregate and alone, compel nullification of the document. Although there is no dispute regarding the child’s classification or day school placement, the parent contends that the supplemental program of related services, provided after school hours to G.P,. is a necessary and integral component of the child’s education. In the absence of these related services, the Parent contends that the placement is inappropriate.

Beyond this, the Parent contends that equitable considerations support her entitlement to an award of reimbursement. See U.S.C. § 1414 (d)(1)(A); §1401 et seq.; Board of Education of the County of Kanawha v. Michal M., et al., 95 F.Supp2nd 600 [S.D.W.Va 2000].

Discussion

It is clear that the legislative intent of 20 US Code Section l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible. (20 U.S.C.Sx.1400 [d][1][A]; see , Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987)]. A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington School Comm. v. Dep't of Education, 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability.(20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 NYCRR 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction (20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a]).

In furtherance of this, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-207 [1982]). The recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

While both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 US at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 US at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free School Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. School Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. School Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

I find, ab initio, that the IEP of May 26, 2010 is invalid, based upon both procedural and substantive grounds. While it is clear that procedural errors alone do not necessarily culminate in the denial of FAPE, relief is warranted if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). Specifically, the student's right to a FAPE has been affected when the procedural violation results in the loss of the student's educational opportunity or seriously infringes upon the parent's opportunity to participate in the development of the student's IEP (Pioneer Cent. School Dist, Appeal No. 04-50; 04-052, supra, citing Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]; W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade School Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]).

A. Does the absence of a parent representative establish a denial of FAPE?

In furtherance thereof, I will address the procedural issues first. In the instant matter, I do not believe the absence of a parent member constitutes a deprivation of FAPE. Clearly, the Parent has participated in multiple CSE meetings as has received special education services beginning with early intervention. The record indicates that the student’s present levels of performance were duly discussed as were the proposed goals and mandated level of services. December 8, 2010 Tr. at 229, 234-235. Consistent with Application of the New York City Dept. of Education, App. 09-024 and Application of the New York City Dept. of Education, App. No. 07-120, the mere absence of a parent member does not translate into the denial of FAPE. Given the Parent’s sophistication with these proceedings, knowledge garnered over the course of nearly ten years, I do not believe the failure to provide a parent representative establishes a denial of FAPE.

B. Did the District sustain its burden of proof regarding the appropriateness of terminating or reducing the child’s related services?

The Department of Education maintains that programmatically addresses the child’s , and physical needs. Notwithstanding this, neither Ms. nor Mr. possesses any specialized expertise in these areas. October 28, 2010 Tr. at 20-21; December 8, 2010 Tr. at 152. Moreover, there is no indication that such expertise was ever sought by the Department of Education. Rather, it relied upon the private assessments of the Parent, all of whom support continued .

For example, while the testimony is clear that, in the area of and language , several goals are , Ms. nevertheless opined that continued to require many of the offered through for the purpose of strengthening the child’s and . Although a CSE is not required to adopt the recommendations offered by , it must, at a minimum, establish that their recommendations have been addressed by duly licensed individuals with expertise in the field. The record simply does not indicate any clear rationale for the termination of and and the reduction of services appears to have occurred arbitrarily. Rather, Ms. testified that the CSE had considered the child’s present levels of performance and developed goals to meet these needs, noting that for the vast majority of students,4 she did not believe were indicated at all. October 28, 2010 Tr. at 82-84, 92, 95-96. In furtherance thereof, Ms. indicated that she “would only be guessing” as to the of and opined that purposely engaged in ,” a view she later recanted. Ibid. at 120-121. There is, moreover, no indication that the Department of Education ever obtained any independent evaluations and a mere assertion that these issues are addressed programmatically does not meet its burden. It is undisputed that the CSE did not include the participation of a , or . Significantly, the Parent was asked to provide their reports and did so in a timely fashion. credibly testified that she was unaware of the CSE’s interest in their actual participation during the CSE proceedings and described a “last minute” effort to contact the at . December 8, 2010 Tr. at 235-236. The record does not indicate whether any prior notice was given to nor does it indicate whether anyone from the CSE attempted to contact after the convene. In fact, Ms. testified that no one was contacted. October 28, 2010 Tr. at 130. While I believe many of the Department of Education’s assertions are valid, in the absence of expert testimony in support of their claims, one cannot automatically draw the conclusion that the termination or reduction of related services was appropriate.

C. Is 8 NYCRR § 200.3[a][1][ix] discretionary?

The regulations specifically provide that a CSE shall include “persons having knowledge or special expertise regarding the student, including as appropriate, as the

Presumably referencing those - . school district or the parent(s) shall designate. Th determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual.” Under these circumstances, the Department of Education maintains that it was under no obligation to include the participation of any related service providers. In support of this, it contends that Ms. extensive experience as a and combined with Mr. limited educational experience militated against the need for the expertise of individuals certified in the areas of , and .

In fact, the appropriate provision is 8 NYCRR § 200.4 (b)(4) which contemplates the need for re-evaluation “if the school district determines that the educational or needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student’s parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representative of the school district . . . agree otherwise . . . . The reevaluation shall be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the students’ disability.” Clearly, the reduction and termination of services compel the need for reevaluation, as it presumes a level of which may be in dispute. This is precisely the scenario at bar. Absent the expertise and insight of providers in the various disciplines in which services have been truncated or terminated, the Department of Education has failed to establish the existence of FAPE in its May 26, 2010 IEP. In fact, the record does not indicate when was evaluated last in the areas of , or physical although the need to do so is underscored by the Department of Education’s opinion that no longer require related services. Although focus is ally driven, even Ms. acknowledged that there might be circumstances in which supplemental related services might be indicated. Absent the consideration of such circumstances by experts in their respective fields, the termination and reduction of related services is, at best, arbitrary. This is particularly so, given an IEP which vaguely indicates, “increase quality of ” as one of its goals. (Exhs. 2 at 10, 3) Under these circumstances, I believe the CSE was not duly constituted and so lacked the necessary expertise to develop a FAPE.

D. Has the parent met her prong two burden pursuant to Burlington School Comm. v. Dept. of Education, 471 U.S.359 (1985)?

Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d 356, 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 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City School Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, 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; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]).

The child’s service testified uniformly that had made . Specifically, Ms. indicated that had addressed the of and as a means of improving the of and in particular, the clarity of his and . In addition to these , the child’s and had continued to work on as a means of and like .

Similarly, the towards , - and - are specifically toward the demonstrated by as are the goals articulated by . Indeed, the clearly distinguished the needs in terms of and education. Specifically, testified that in , , , and . Significantly, the witness credibly testified that -based would be in and even in the event of a or . As the child has never been without these , one cannot assess whether or not his improvement is related solely to the provision of or the IEP program as a whole. This, in fact, is the Department of Education’s burden. In the absence of this information and given the “extraordinary needs” of , the child’s improvement must be viewed as a function of the IEP as a totality (Application of a Child with a Disability, App. No. 97-30).

E. Has the parent met her equitable burden pursuant to Burlington School Comm. v. Dept. of Education, 471 U.S.359 (1985)?

The record does not indicate any equitable bar to the parent’s right to recovery, nor is one claimed. Conclusion

The parent’s request is granted.

Wherefore, it is hereby ordered that:

The IEP of May 26, 2010 shall be deemed invalid. Within thirty (30) days of the date of this Order, the Department of Education shall reimburse the Parent, upon due of , for the of ( ), ( ) and ( ) provided through during the 2010-2011 school year. If no payment has been made, the Department of Education, upon submission of an affidavit from and invoices for the 2010-2011 school year, shall make direct payment to on the basis of , and Dated: May 17, 2011

_______________________________

LYNN ALMELEH, ESQ.

Impartial Hearing Officer

LA:dl

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.”

(8NYCRR279.2[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.

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 21, 2010

PARENT

A Impartial Hearing Request, 8/11/10, 2 pages B Findings of Fact and Decision, dated 8/6/10, 17 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 28, 2010

PARENT

C Report and Goals, dated 4/27/10, 7 pages D Student Report for , Undated, 5 pages E Report and Goals, dated 5/17/10, 4 pages F Daily Schedule, Undated, 2 pages

DEPARTMENT OF EDUCATION

1 Due Process Complaint, dated 8/11/10, 2 pages 2 IEP, dated 5/26/10, 14 pages 3 CSE Meeting Minutes, dated 5/26/10, 4 pages 4 M2 Meeting Notice for EPC/CSE Review, dated 4/19/10, 1 page 5 Final Notice of Recommendation, Annual Review of Reevaluation, dated 5/26/10, 1 page 6 School Report, dated 4/1/10,

12 pages 7 School, List of , dated 10/1/10, 2 pages 8 School Report, dated 7/1/10,

13 pages 9 for , Report, dated 5/17/10, 3 pages 10 for , Student Report for , dated 4/20/10, 7

pages

11 for , Report for , Undated, 4 pages

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 8, 2010

PARENT

None

DEPARTMENT OF EDUCATION

12 School Report, dated 10/1/10,

9 pages

Footnotes

[1] i.e. by fives, tens and hundreds The Parent does not object to the lack of a . October 28, 2010 Tr. at 60.