New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 128901 Student‟s Name: Date of Birth: District: 17 Hearing Requested By: Parent Date of Hearing: September 21, 2010

November 15, 2010

November 29, 2010

December 23, 2010 Hearing Officer: Edgar De Leon, Esq.

Case No.: 128901

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 21, 2010

Student

None — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 15, 2010

Student

Student

Student

District Representative — DOE

(via telephone) — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 29, 2010

Student

Student

Student

(via telephone) — Student

(via telephone) — Student

District Representative — DOE

-, (via telephone) — DOE

Classroom (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 23, 2010

Student

Parents

Parents

— Student

District Representative — DOE

CSE, Region 6 (via telephone) — DOE

CSE, Region 6 (via telephone) — DOE

— DOE

On September 3, 2010, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, regarding a dispute between the Parents of a ( ) year old student as to a public school and the New York City Department of Education (“DOE”) - District: (17), Service District: (88), concerning the student‟s special education program. After having adjournments granted on consent or for cause, the impartial hearing was held on September 21, 2010, November 15, 2010, November 29, 2010 and December 23, 2010. At the conclusion of the hearing, the Parent requested to submit a Memorandum of Law (“memo”) in lieu of a closing statement. (T-318) The Parent‟s memorandum was due on or before January 20, 2011. (T-323-4) The DOE made a closing statement on the record. (T-318-23) A list of the witnesses appearing at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND

This case involves a ( ) year old student classified as “ .” (See Parent‟s Due Process Complaint - “DPC”) The student is recommended to attend a “ class with support services”. (DPC) The Parent visited at least two programs and believes that both sites are not appropriate for the student. (Id.) At the impartial hearing, the Parent requests the following relief:

The DOE will provide the student with (20) hours per week of education

(“ ”) at a rate not to exceed $120.00

The DOE will increase the student‟s therapy to five times sixty minutes.

The DOE will increase the student‟s therapy to four times sixty minutes.

THE DOE‟S CASE

The DOE argues that the Committee on Special Education (“CSE”) worked diligently to assure that the student was offered a “free an appropriate public education” (“FAPE”). (T-14) The student was recently evaluated by a . (Id.) He needs an augmentative device. (Id.) The services on the student‟s Individualized Education Program (“IEP”) exceed the services under “pendency” in terms of “related services.” (Id.) The Parent accepted the program offered by the DOE. (Id.) After the Parents changed their minds, the DOE still offered another program. (Id.) Currently, the student has a seat available to him in two school districts. (Id.) The Parents have not fully cooperated with the DOE. (T-15)

The DOE called (6) witnesses to testify on its behalf and submitted (13) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE‟s first witness attended the student‟s Committee on Special Education (“CSE”) review meeting on June 7, 2010. (T-28) The student was not present but his was. (Id.) She is a certified school , has a license in and and has been employed by the DOE for (9) years. (T-30-1) There was another who had evaluated the student that participated in the meeting by telephone. (T-31) Also in attendance at the meeting were the general education , the district representative, the special education , the “CSE Representative”, a parent member and the student‟s . (T-32) The had tested the student about a week or two beforehand. (T-33) The student‟s pre-school also participated by telephone. (T-34)

The witness stated that the student needed an augmentative communication board. (Id.) He had an augmentative communication evaluation done on April 15, 2010. (T-34-

5) The “social-emotional” page of the student‟s IEP was done by the . (T-35) The “health and development” page was done by his and . (Id.) The student has “ - ” and has a lot of health issues related to the same. (Id.) He was not trained. (T-36) The IEP goals were discussed with the Parent and she was given an opportunity for input. (Id.)

The witness stated that they believed the “ ” program would be good for the student. (T-37) The Parent was asking about several that she had looked at. (Id.) They did not tell the Parent that they would recommend a specific school building. (T-

39) The Parent was aware that they were recommending a program when she left the meeting. (T-40) The student‟s special education did not request any additional academic program for the student at the meeting to her recollection. (Id.) She did not read any additional reports indicating that additional services should be considered. (T-41) They also reviewed the recommended related services with the Parent. (Id.) She does not recall the Parent having any concerns about the amount of related services offered to the student. (Id.) The student‟s therapies were exceeded based on the reports and the Parent‟s input. (T-44) “ ” were not recommended for the student because they recommended a small class, “ ”, and believed that would meet the student‟s academic needs. (T-45) Academics are strength for the student. (Id.) His academic level was on a - level. (Id.)

On cross examination, the witness testified that the “CSE Representative” was asked to join the meeting because she knew a little about the and could provide some more information. (T-47) She believes that all the different sites were vaguely discussed. (T-48) The Parent seemed to have a general idea about the . (Id.) She does not recall if the Parent had a preference for a specific site during the meeting. (Id.) She also does not remember if the CSE Representative expressed an opinion concerning what might be an appropriate for the student. (T-49) However, she believes the Parent sounded more excited about the at . (T-50)

The witness did not remember if the student‟s was present by telephone throughout the entire meeting. (T-52) The student‟s and were not present during the meeting. (T-52-3) The “pages that came from them” were not drafted at the meeting. (T-53) Neither was the present during the meeting. (T-55) They recommended a for the student. (T-56)

On re-direct testimony, the witness testified that the IEP meeting lasted for about an hour to an hour and a half. (T-58-9) When a Parent is notified about a review meeting, he or she is advised to bring updated reports. (T-60 & D-12) There was no substantive testimony developed during the witnesses re-cross examination. (T-61-2)

When questioned by the under , the witness stated that to her knowledge, there was a at on June 7, 2010. (T-63) However, she heard that it is no longer in existence. (Id.) The DOE‟s second witness is the for CSE No. 6. (T-65) She knows that the student needed a placement. (Id.) The first placement they got for the student was at in District 14. (T-68) The Parent that placement offer and accepted it. (Id.) When she heard the student was not going to that site, they offered the Parent a seat for the student in District 20. (T-69) The Parent did not accept that seat. (T-69-70) She believes that a Final Notice of Recommendation (“FNR”) was sent to the Parent for . (T-70)

The witness stated that she is familiar with the program in in District 21. (Id.) However, they did not have a class for this current school year. (T-71) Some of the programs can be different in that some are geared more towards students with learning disabilities and some of the students are functioning lower cognitively in some of them. (T-72)

On cross examination, the witness testified that she is not 100% sure an FNR for was sent to the Parent, but she believes that she gave it to one of the clerical staff sometime in October to send it to the Parent. (T-73) The Parent did not contact her regarding a placement at . (T-74) She does not remember the exact date, but she personally sent out the FNR for . (Id.) A turning 5 student receives an FNR by June 15th. (Id.) At first, the student was not offered a class because there were no classes available at that time. (T-75) An “alternate placement” is not an ideal placement. (Id.) She does not recall being notified by anyone concerning a particular placement that the Parent preferred. (T-76)

On re-direct testimony, the witness testified that she contacted and there was no program at the school. (T-77) She does not know if the student received services during the summer of 2010. (T-78) There was no re-cross examination of the witness. (T-79)

When questioned by the under , the witness stated that she doubled checked with twice. (T-80) To the best of her knowledge, the program does not currently exist at . (Id.) She believes that she checked in October. (T-81) The DOES‟ third witness met the student once. (T-94) She is employed at as a special education in a self-class. (T-97) The grades are and grade because they did not get any “ ” students. (T-97-8) The student‟s Parents came to look at the program with the student. (T-98) Last year, they did have a class. (Id.) She did not know that the policy would change and that they would not be registering children for the 2010-2011 school year. (T-98-9) The class goes up to ( ) students and has (6) 1st or graders currently enrolled. (T-99-100) There are ( ) in the class. (T-

100) The witness stated that she was told by the Parents and the that unless the student lived in the District, he would not be allowed to register. (T-100-1)

On cross examination, the witness testified that the class is made up of children ages ( ) though ( ), grades “ ”, “ ” and “ .” (T-102) She met the student for a few minutes and felt the he was someone they could work with. (T-103) She believes she learned from the student‟s over the summer that he would not be attending the school. (Id.) She never spoke with anyone at the school administration concerning the student. (Id.) Cognitively, the student would fit in and they could work with his disabilities. (T-104)

On re-direct testimony, the witness stated that the class is composed of and graders this year, because they did not receive any incoming students. (T-105) Her students are ( ) and ( ) years old. (Id.) The student would have been the only (5) year old in the class. (T-105-6) The does not control what students are sent to her school. (T-106) She cannot say that the program does not exist because there are children in her class who are technically in the grade but functioning on a level. (T-107) She does not know the student‟s functional level. (T-108) However, in certain areas he seems higher functioning than some of the children currently in the class. (Id.) There was no re-cross examination of the student. (Id.)

The DOE‟s fourth witness is the in charge of education at . (T-

112) She has been in that position for (6) years and has worked in special education for over (25) years. (T-113) Back in October, the asked her about a placement for the student. (Id.) is in District 20. (T-113-4) She told “placement” that she did have available seats in the , .” (T-114) The class is a “ ”, „ ” and “ ” grade class. (T-

115) She does not know why her offer was not accepted. (Id.)

The witness stated that the class is “certified” and that there are ( ) students with about ( ) in the class. (T-116) The class is slated for a staffing ratio. (Id.) Some of the students in the class are and child has . (T-117) There are ( ) to ( ) in her . (T-119) There are approximately ( ) students. (Id.) She has (4) classes. (T-120) The Parents in this case visited the school back in June of 2010. (Id.) There are in the who currently students. (Id.) If they did not have a they would have searched for one. (T-121) Right now, there are in the class. (Id.) They follow the New York State alternate assessment curriculum. (Id.)

The witness stated that the student‟s profile is similar to that of other students in her program. (T-122) The academic levels in her proposed classroom are from “readiness” to “ - .” (Id.) There are two school nurses and two adaptive education s in her building. (T-123) They have three lunch rooms. (Id.) The students eat lunch in a separate area because they have “ lunches.” (T-123-4) The , and school lunch. (T-124)

The witness stated that participated in school in her . (T-125) She is not sure if has a class. (Id.) The summer participation did not include classes. (T-126) The student‟s related services could have been accommodated at the beginning of the school year, although he does have a “heavy mandate” for services. (Id.) If he could not have been accommodated, the student would have been provided with a “Related Service Authorization” (“RSA”). All of the student‟s mandates would not have been provided in school. (T-127) Students in her proposed class are classified as , other and . (Id.)

On cross examination, the witness testified that she does not have any personal knowledge that was offered to the student. (T-128) A “list notice” is something that goes out to the Parent when a child articulates from one school to another. (T-129) She does not recall seeing the student‟s name on one of those lists. (Id.) In June the “health coordinator” showed the Parent around the school. (T-130) She next heard the student‟s name from the in October. (Id.) One child in the program has an augmentative device. (T-131) There are (2) full time special education who are trained in , and one of them is trained in the use of a “ .” (Id.) There are probably ( ) student‟s in the class. (T-132) She received the student‟s IEP “a few weeks ago.” (Id.) Aside from his IEP, she has no personal knowledge of the student. (T133)

There was no substantive testimony developed during the witness‟ re-direct testimony. (T-134-5) There was no re-cross examination of the witness. (T-135)

The DOE‟s fifth witness testified as a rebuttal witness. (T-250) She was the CSE Chairperson. (T-257) She retired in 2006. (Id.) The DOE hires her as a consultant. (Id.) She has been a supervisor of educational and a . (T-258) She was called into the student‟s IEP meeting. (Id.) As a rule, she does not participate in IEP meetings. (T-

259) She was called into this case because the CSE team was with whether or not the child should be in a based program, or the District 75 program. (Id.) The concern was whether or not a District 75 program would be too restrictive. (Id.) The who saw the student was called. (Id.) The consensus was that the student would do best in a based , special education, small class. (Id.) The believed that a District 75 program would be too for the student. (T-260)

The witness stated that the Parent visited several s and wanted the student to attend . (Id.) It has never been her role to say that a child could go to a specific school. (T-261) The CSE does not offer a specific site. (T-261-2) The conferred with an on the telephone, but the did not participate in the CSE meeting. (T-

266) She does not recall speaking to the . (Id.) Later, the witness stated that she did not remember whether or not the was called as a participant during the meeting. (T-

267) The witness stated that she did say the student needs a based program, but she did not say the student would be offered . (T-268)

On cross examination, the witness testified that she was a consultant for the CSE during the summer of 2010. (T-269) There was a consensus that the student needs the , - class. (T-270) She does not recall what the specifics of the Parent‟s ‟s input and role was at the CSE meeting. (T-271) They discussed , the school in burg Brooklyn, and then District 75 at the meeting. (Id.) At the time of the meeting, the Parent had access to the IEP of the Committee on Pre-School Education (“CPSE”), not the IEP for the CSE. (Id.)

The witness stated that the Parent said she had visited the program in . (T-

272) She visited the program before the student was evaluated and stated that it would not be good for the student. (Id.) She remembers telling the Parent that the students would not be the students in the program next year. (T-272-3) The Parent said that she was told by the school in burg that their program would not be good for the student. (T-273) The CSE team was not familiar with . (T-274)

The witness stated that at the CSE meeting she said that “globally” the is excellent. (Id.) She told the Parent that there are students that go to that are successful. (Id.) She also said the same thing about the school in burg. (Id.) District 75 was ruled out at the meeting, but the Parent kept bringing it back. (T-275) She does not remember discussing whether the student was trained, or talking with the Parent‟s at the meeting. (Id.) The Parent did speak with her at the meeting. (T-277) She remembers saying that they did not know what specific site would be available. (T-279) She does not remember if the IEP team inquired about a placement at . (Id.) She does not know if the was consulted with after the meeting. (T280)

The witness stated she believes the Parent was advised of the placement process at the meeting. (T-281) The witness was not present for the entire CSE meeting, but she was there when they were discussing the program recommendation. (Id.) She believes that at the meeting she did tell the Parent that they would try to accommodate her, but that they did not know what would be available in September. (T-282) The Parent requested for the student. (Id.)

On re-direct testimony, the witness stated that she believes a program offer is received over the summer. (Id.) The site was not available for the student for the 2010-2011 school year. (T-283) The most that she could have done was to suggest the placement to the who then connects with the region. (Id.) On re-cross examination, the witness stated that she called the Parent over the summer that there was a “phase one” going into effect and that the was not going to be available as it was in the past school year. (T-284) The Parent was calling all the time that she wanted and the said that it was not available as a site for the . (Id.) She does not know what the discussed with the Parent. (T-286)

On re-re-direct testimony, the witness stated that she did not tell the Parent she had to the “FNR” for the school in burg. (T-287) There was no substantive testimony developed during the witness‟ re-cross examination. (T-287-9)

The DOE‟s sixth and final witness also gave rebuttal testimony. She was called in as the “ ” liaison for the District. (T-290) She has worked for the DOE for (32) years and is licensed as a general and special education . (T-292) She is the Assistive Technology Liaison for Districts 17, 18 and 22. (T-293) She participated in the student‟s IEP meeting on June 7, 2010. (Id.) The meeting went on for about (2) to (3) hours and the discussion was almost entirely about the student‟s placement. (T-294) The student needs to be evaluated yearly because the he has is not very well known. (Id.)

The witness stated that the had conducted extensive research. (T-295) They went through a list of “NPS” programs that they thought might be good for the student. (Id.) The IEP team is not allowed to offer placement. (T-297) The IEP team did not suggest to the Parent what school the student would be attending in September. (T-298) The Parent e-mailed her in July telling her that she received a District 17 offer. (Id.) She spoke with a colleague who told her to tell the Parent not to because they were going to make the offer. (Id.) The Parent‟s might have called the Parent, but the did not participate at the meeting. (T-299) No one suggested to the that was going to be offered. (T-299-300)

On cross examination, the witness testified that the Parent went to visit all three s. (T-301) The Parent wanted a District 75 program. (Id.) The was best for the student because it is a 12:1:1, the thought a program would be appropriate for the student and it is in a school setting, not a restrictive District 75 setting. (T-303)

They wrote “ ” on the IEP, but did not give the Parent a placement letter or offer a specific placement. (T-304) training was probably discussed at the meeting because the student was as ed a paraprofessional. (Id.) The consultant was asked to come in because this is the area of her expertise. She does not recall the number of the program the Parent was requesting. (T-308)

The witness stated that she did not discuss her testimony with anyone prior to testifying. (Id.) She does not remember the program being discussed at the meeting. (Id.) There was no re-direct testimony taken from the witness. (T-309-10)

THE PARENT‟S CASE

The Parents argue that the student suffers from “ - ” and a history of surgeries. (T-18) It was the Parents‟ understanding at the CSE meeting held on June 7, 2010 that the DOE would place the student in a program in “ .” (T-18) Later in the summer, the student‟s received a call from the DOE telling her that the student would have to attend a school in burg, Brooklyn. (Id.) She ed the Final Notice of Recommendation (“FNR”) for the school in burg, only because she believed there was nothing else she could do. (T-19) The student‟s visited the school in burg. (Id.) She believes that is the appropriate special education placement for the student. (Id.)

The Parents called (3) witnesses to testify on their behalf and submitted (2) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parents is as follows:

The Parent‟s first witness is the student‟s . (T-149) She stated that the student has a rare diagnosis of “ - - .” (Id.) About (1) in (125,000) children have the . (T-149-50) It is not just a , but and the student‟s make up is entirely different. (T-150) The student has over all delays in all areas. (Id.) Children with the have a lower I.Q., but it varies. (T-152) The student had in September of 2006 when he was (13) months old. (Id.) The student started at an “ ” at about

(6) weeks old with , and . (T-153) In 2007-2008, he attended a - called “ by ” which is a “ and ” . (T-153-4) There he received and . (T-154) The witness stated that the student went to a great -school for two years between the ages of ( ) and ( ). (T-156) He was in a special education class there with , and and an . (Id.) In the summer of 2010, the student could not speak. (Id.) The witness started to search for an appropriate school for the student after pre-school and looked at a lot of different schools. (T-157) She first visited . (Id.) She provided the school with the student‟s IEP. (T-158) There was no one at the school who used a “tech talk”, “assistive device” or a and they did not know if anyone used . (Id.) She felt that the school was not appropriate for the student. (T-159) The of the program called her a couple of days later and told her that she did not think the program was appropriate for the student. (T-159-60)

The witness stated that she next visited the program at . (T-161) The there asked to see the student‟s IEP. (Id.) She brought the student to the school and he related to the children for about (10) minutes in a conversation by just using s and grunts. (T-162) The evaluated the student and said that she was impressed by him. (T-163) She also visited the room. (Id.) Everything was in “PECS” (pictures). (T-

164) The , who has worked with , also evaluated the student. (T-164) The came in and said that she can see the student needs the “bike.” (Id.) The told her that she believed the student was very appropriate for the school because he is so academically inclined. (Id.) However, they had an issue with the fact that the student was not trained. (Id.) Their program is very academic and the students must be trained. (Id.)

The witness also stated that she visited but she felt that the structure was not good for the student. (T-165-6) They were doing shapes and colors at the school, which the student already knew. (T-166) She also visited a non-program. (Id.) She liked the school very much, but the told her that she did not know if there was going to be a placement. (T-166-7) She also told her that the student was more advanced than the typical ( ) year old so she would put him in the ( ) and ( ) year old class. (T-167) The school is a District 75 school where most of the students are “ ” (Id.) The school was an option for her when she attended the meeting on June 7, 2010. (Id.)

The witness stated that throughout the entire of the meeting, she was in contact with the from the student‟s pre-school by telephone. (T-168) They went through all of the “ ” programs at the meeting and unanimously agreed that was the appropriate program for the student. (T-170) They told her at the meeting that they could not guarantee a school and that the student would be placed in the school that was closest to his . (T-171) However, when she left the meeting, she believed that the student would attend in September of 2010. (T-172) She agreed with most of the related services on the student‟s IEP. (Id.) The was recommended for the student. (T-173)

The witness stated that she also agreed with the staffing ratio at and wanted the “ ” services to continue from the year before. (T-174) She was told that they could not give her services. (Id.) The “ ” for districts 17, 18 and 22 (T-

293) told her that if she got a notice in the mail that said the student was accepted in a public school, she should just ignore it because she is going to receive the papers for the program at . (T-175) When she received the papers, they said the student was going to be placed in a “ ” program in , . (Id.) The now told her that she could not give her . (Id.) A couple of days later she was called by the DOE and told that it was July and school started in September, so she had to take the school in because there was no other placement available. (T-177) She had just given birth three weeks earlier and very hesitantly ed the paper for , the school in burg. (Id.) One day after ing the document, she made the decision that she could not send the student to . (T-179)

The witness stated that the student was taught to by his and a program that they brought for the . (T-180) The student knows about (100) to (150) s. (T-181) It is important for the to work with the student using a . (Id.) She had the student (100%) trained before September of 2010. (T-182)

On cross examination, the witness testified that she discussed the augmentative device with the and waited a couple of weeks for the evaluation. (T-183) She was trained on the through the augmentative device specialist that works with the student. (T-184) She did not call the when she received the placement because she had originally been told not to worry about it. (T-185) She did have a conversation with the person who ed the FNR at some point. (T-186) She did not speak with the placement officer. (T-187-8)

The witness stated that she visited after she visited . (T-188) That was sometime in April or May. (T-189) She has a regular education background and taught a grade class. (Id.) She taught general studies in a secular, and a regular program. (T-190) She ed accepting because she was told that she did not have an option. (Id.) The DOE called her about two or three days in a row to get her to for . (Id.)

The witness stated that during this impartial hearing, the DOE called her and offered her . (T-192-3) At the IEP meeting she was offered . (T-192) She was told that whatever “ ” program she wanted, they would be able to give it to her. (T-

193) No other “ ” programs were discussed at the IEP meeting other than . (T-

194) Later, the witness stated that they discussed the basic programs that she had visited. (Id.) She never received an FNR for . (T-196) During this impartial hearing, we heard that there is a seat available for . (T-197) The DOE told her the school was available. (T-197-8) The at also told her that there were a nice amount of slots available. (T-198) Until this hearing, she had no knowledge that there was no class available at for the 2010-2011 school year. (Id.)

The witness stated that she does have a problem with the student being with (6) and (7) year olds as long as they are bring up his academic level. (T-199) Of the three programs she observed, is the only one she felt was appropriate for the student. (Id.) The student is not following his “pendency program” is because she is having a hard time getting because they are claiming that he is going to be in school and some of their therapy is going to be taken away. (T-200) The student is getting some therapy. (Id.) He is not getting therapy during the school hours of 9:00 AM to 3:00 PM because she does not have anyone who wants to take over those sessions. (T-201) His previous school said they did not have room for the student and the school year had already begun.

(Id.) At she spoke to the and but the was not present that day. (T201-2) They had not seen a “ ” at . (T-202) She felt that the students at the school were learning things the student already mastered. (Id.) She was at the school for approximately one hour. (T-203)

The witness stated that she had the student‟s IEP with her when she visited . (Id.) She had the student‟s “pre-school IEP” with her. (T-204) The evaluations with the current IEP were not seen by . (Id.) They told her that the IEP was not appropriate for . (Id.) The DOE very hesitantly told her that the student was appropriate for . (Id.)

On re-direct testimony, the witness testified that she believes is appropriate for the student because she feels that they were able to relate to him with the and with s. (T-206) At , they told her they would learn some s if she needed them to do so. (T-207)

On re-cross examination, the witness acknowledged that there is nothing in the reports that states her son utilizes “ s.” (T-207) The drafter of the augmentative report said the student‟s needs a because she has been working with him since he was three years old. (T-209 & D-6) She does not work with s. (Id.) Her specialty is . (Id.) She took the student to all three schools she visited. (T-210)

The Parent‟s second witness has never met the student but has spoken with the student‟s many times. (T-212) She participated in the CSE meeting held in July of last year for the student. (T-215) She works as a consultant for the student‟s -school. (T-

217) She conducts workshops for parents of children who are ( ) and teaches them how to navigate the CSE process. (T-217)

The witness stated that she spoke to two people at the CSE meeting. (T-218) was the only school that was discussed as a placement for the student. (Id.) One of the persons she spoke to felt that it would be possible to arrange the placement for the student. (Id.)

On cross examination, the witness testified that she did not know how long the IEP meeting lasted for. (T-219) She participated for approximately a half hour. (Id.)

She did not have any documentation at the IEP meeting. (T-220) She wrote notes at the meeting but did not save them. (Id.) There is a placement office that offers the Parent a placement in a school consistent with the IEP. (T-221) One of the persons she spoke to at the meeting is the Chairperson which means that the placement office is under her jurisdiction. (Id.) The witness indicated that she was not aware of the “Office of Student Placement & Enrollment.” (T-222)

On re-direct testimony, the witness stated that placement at was discussed with her but the placement office was not discussed. (T-223) She was told that they did not anticipate a problem with the placement and that it has been done before. (Id.) On re-cross examination, the witness testified that other school where discussed at the meeting, but they believed that was the appropriate placement for the student. (T-

224) She can‟t say that the DOE said the student would “definitely” get , but they did not anticipate a problem. (Id.) She is not “recently” familiar with because she saw the school probably (10) years ago. (T-225) She saw all of the “ ” programs probably anywhere from (5) to (15) years ago. (Id.)

The Parent‟s third and final witness is the student‟s current “ ” . (T-27) She has worked for about ten years as a special education . (T-229) She has worked with the student for about (2) years. (T-230) She sees the student (12) hours per week for the last (2) years. (Id.) When she began to see him, the student had and . (Id.) She currently works on letter recognition with the student. (T-231) He is able to recognize all of the letters of the alphabet. (Id.) He is also able to recognize all numbers from (1) to (10) and all the colors. (Id.) He can match colors. (Id.) The student is working on following two-three step direction and they communicate by . (Id.) He is using a and has about (100) s in his vocabulary. (T-231)

The witness stated that the student‟s relatedness is great. (T-232) She has been working on his training for the last few months. (Id.) He is able to what he needs to do in the and is showing ificant progress with bowel movements. (T232-3) However, it is difficult for him when he goes to a different setting. (T-233) She was not able to visit any of the schools the Parent visited. (T-233-4)

On cross examination, the witness testified that the student‟s is academically a pre-schooler. (T-235) She has been trained to work with a , but not this particular one. (T-236) The taught her how to use it. (Id.) She sees the student late in the evening because she has her internship from Monday through Friday, 8:00 AM to 3:30 PM. (Id.) She believes the student will definitely need to continue to afternoon program. (T-237)

The witness conceded that most students would benefit from a one-to-one, especially the student with self help skill like feeding and chewing. (Id.) She works for about (1) hour with the student on instruction and cognitive skills. (T-239)

On re-direct testimony, the witness stated that the student has difficulty going up and down stairs because his balance is off. (T-240) He needs “prompts” to transition. (T-241) On re-cross examination, the witness stated that she is not sure if the student receives therapy, but he does receive therapy. (Id.) She interacts with the and . (T-242)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

SRO Decision 06-037 states in relevant part:

One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1482)5 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]). A FAPE includes special education and related services de ed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347).6 A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch.

Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id. at pp. 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir.

2000]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b)

the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Bd. of Educ., Appeal No.

06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The central issue in this case is that Parent‟s desire to have the student specifically placed at . (T-50, 170, 192, 199, 206, 282 & 284) The June 7, 2010 CSE team that conducted the student‟s review was composed of the general education , the school /the district representative, the special education , the “CSE representative”, a Parent Member, the that had evaluated the student a week before, the student‟s pre-school who participated by telephone and the student‟s . (T-28-34) Accordingly, the CSE team was properly constituted under law. (See 8 NYCRR § 200.3(a)(1))

The CSE team received input from the student‟s who had recently evaluated him, his and (via reports only - T-52-3, D-5, D-10 & D-11)) and his augmentative communication evaluation that had been done on April 15, 2010. (T-34-5 & D-6) The Parent indicated that she was ok with the amount of related services offered, which were in fact increased based on the reports reviewed and the Parent‟s input. (T-41, 44, 172, D

8 & D-13) A “ ” was also recommended for the student. (T-173 & D-6) Although “ ” (“ ”) were not recommended for the student (T-45 & 174), the Parent accepted the program offered, all be it at and not . (T-68 & 177)

The CSE classified the student as “ ” and recommended placement in a class with a “ ” staffing ratio and related services. (D-4) The student was recommended to be placed in a (“ ”) program, with adaptive education, and education . (Id.) The Parent‟s DPC request that the student‟s therapy be increased to (5) times sixty minutes per week. (DPC) The IEP created by the June 7th CSE team mandates that the student receive and therapy in , “5 x 30 x 1” and “3 x 60 x 2.” (D-4) The Parent‟s DPC also request that the student‟s therapy be increased to four times sixty minutes per week. (DPC) In fact, his June 7th IEP mandates that he receive “3 x 30 x 1” and “2 x 60 x 2.” (D-4) The DOE states that at the time of the impartial hearing, the agency had a seat available for the student in two school districts. (T-14)

Witnesses for both the DOE and the Parent testified that the student needs a “ ” program. (T-37, 170 & 268) The DOE did indeed offer the student a “ ” program. (D-3 & D-14) The Parent also the important for to work with the student using a“ .” (T-181) The DOE school also stated that the student needed an “ . (T-

34) As noted above, the June 7th IEP recommends that the student that the student received “assistive technology.” (D-14) The Parent alleges that at one of the DOE recommended schools, , there was no one who used a “ ”, , or a “ .” (T158)

However, I find that there is sufficient basis in the record to find that the DOE‟s second offered school, , does provide a “ .” (T-70) The DOE did have a seat available for the student at in the program. (T-114) The student could have been placed there and been taught by a certified in a class with only ( ) students and about ( ) . (T-116) There is one student in the class already that uses an and two full-time special education , both trained in “ ” and one of which is trained in the use of a . (T-117 & 131) also has (4) classes (T-120), -

(T-121), school and education s (T-123), and the school follows the New York State alternative assessment curriculum. (T-121) The Parent stated that she visited the school and liked it very much, although the told her that she did not know if there was going to be a placement available. (T-165-7 & 188) She was also told that the student was more advanced than the typical (5 ½) year old at the school. (T-167) However, the school was still “an option” for her when she attended the June 7th IEP meeting. (Id.)

The Parent holds that is the only appropriate placement for the student, but acknowledges that that the school requires he be trained. (T-164) The DOE holds that the student is not trained. (T-36) The Parent claimed that she had the student (100%) trained before September of 2010. (T-182) However, the student‟s current “ ” testified that the student “is showing progress with bowel movements”, but “it is for him when he does to a different setting. (T-233)

The Parent also claimed that was the only “ ” program discussed and offered to her at the IEP meeting. (T-175 & 192-4) The Parent‟s “consultant” also testified that P.S. 19 was the only school discussed as a placement for the student at the meeting. (T-218) However, she later acknowledged that the DOE did not “definitely” say the student would be placed in , although the agency indicated that they did not anticipate a problem with placing the student there. (T-224) There is ample evidence in the record that the program was not specifically offered to the Parent at the IEP meeting. (T-39, 261-2, 282, 298 & 299-300) What‟s more, the record also evidences that the program is not available this year. (T-63, 71, 77, 80-1, 283-4)

The as of a particular school is an administrative decision, provided it is made in conformance with the CSE's educational placement recommendation. (See White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 [5th Cir. 2003]; Veazey v. Ascension Parish Sch. Bd., 2005 WL 1119496 [5th Cir. Jan. 5, 2005]; A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 [4th Cir. 2004]; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 [2d Cir. 1980]; Tarlowe, 2008 WL 2736027, at *6; K.Y. v. Dep't of Educ., 2008 U.S. Dist. LEXIS 89827, 51 IDELR 78; SRO Nos. 08-103, 07-049, 99-90, 96-51, 93-5; but see also A.K. v. Alexandria City Sch. Bd., 484 F.3d 672 [4th Cir. 2007]).

The United States Department of Education (USDOE) has noted that it "referred to 'placement' as points along the continuum of placement options available for a child with a disability, and 'location' as the surrounding, such as the classroom, in which a child with a disability receives special education and related services." (See Placements, 71 Fed. Reg. 46588 [August 14, 2006]). This view is consistent with the opinion of the USDOE's Office of Special Education Programs (OSEP), which indicates that the as ment of a particular school is an administrative decision provided it is made in conformance with the CSE's educational placement recommendation. (See Letter to Veazey, 37 IDELR 10 [OSEP 2001] and SRO No. 07-049)

Here, I find that the CSE did offer the student a FAPE in the IEP it created on June 7, 2010. As indicated above, the recommended program offers everything the Parent wants for the student and it was the consensus of all of the attendees at the IEP meeting. (T-259 & 270) What‟s more, the Parent agreed with the program. (T-14, 177 & D-3) So long as the student is placed in a school that conforms to the CSE's educational placement recommendation, the DOE has done what is it required to do under the law.

I find the testimony indicating that the DOE made efforts to accommodate the Parent‟s desire, but that the agency did not promise a specific placement is credible. I find the testimony to the contrary not credible. There is a sufficient basis in the record to find that the Parent‟s requested placement in the program is no longer a possibility because the program no longer exists. In either case, I find that the law does not require the DOE to place the student in the specific school the Parent demands. In all other aspects, the student is receiving more related services than the Parent‟s DPC request.

NOW, therefore, it is hereby

ORDERED that the Parent‟s requested relief in the DPC dated September 2, 2010 is DENIED. DATED: February 23, 2011

______________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED:jj

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 SEPTEMBER 21, 2010

PARENT

A Impartial Hearing Request, 9/2/10, 4 pp. B IEP, 5/24/10, 42 pp.

DOCUMENTATION ENTERED INTO THE RECORD NOVEMBER 15, 2010

1 IEP, 5/24/10, 41 pp.

2 A-1 Form, 8/6/10, 1 pp.

3 FNR, 7/26/10, 1 pp.

4 CSE IEP, 6/7/10, 26 pp.

5 Psycho-Educational Report, 5/26/10, 4 pp.

6 Augmentive Report, 4/15/10, 5 pp.

7 Observation, 3/9/10, 2 pp.

8 Social History Update, 12/15/09, 1 pp.

9 Progress Report, 12/15/09, 3 pp.

10 Therapy Report, 1/4/10, 2 pp.

11 therapy Report, 12/1/09, 3 pp.

12 Letter from CSE, 5/27/10, 1 pp.

13 Speech & Report, 11/30/09, 2 pp.