New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth: District: 2 Hearing Requested By: Parent Date of Hearing: November 9, 2010

November 17, 2010

December 3, 2010

January 19, 2011

March 8, 2011

March 31, 2011

April 28, 2011 Hearing Officer: Theresa R. Joyner, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 9, 2010

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 17, 2010

Attorney — Student

Parents

Attorney — DOE

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 3, 2010

Attorney — Student

Parents

Attorney — DOE

School (via telephone) — DOE

Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 19, 2011

Attorney — Student

Parents

Attorney — DOE

Teacher — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 8, 2011

Attorney — Student

Attorney — Student

Parents

Program Director — Student

Teacher — Student

Worker — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 31, 2011

Attorney — Student

Parents

Teacher — Student

Worker — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 28, 2011

Attorney — Student

Parents

Attorney — DOE

This matter came before me on November 9, 17, December 3, 2010 and January 19, March 8, 31, April 28,2011 the hearing was held pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.§1415(f)(1). The parents’ request was received on September 13, 2010. The compliance date was extended after each hearing day. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

BACKGROUND

The student (A) is a year old boy that has been classified with on his January 12, 2010, Individualized Education Program (IEP). In addition, the Committee on Education (CSE) recommended a class in a school with a staffing ratio of and a twelve month school year. The CSE recommended a full time, crisis paraprofessional and related services. therapy ( ) and and therapy ( ) were recommended for 5x30:1; therapy ( ) was recommended for 3x30:1 and for 1x30:1. (Exh.5) On June 15th, 2010 the Department of Education (DOE) issued the Final Notice of Recommendation for the student to attend Public School at the ’s Workshop. (Exh. 9)

The parents requested this hearing (1) to challenge the alleged failure of the CSE to provide the student with a” free appropriate public education” (FAPE) for the 20102011 school year on procedural and substantive grounds and (2) to seek reimbursement/funding for the School and roundtrip transportation.

THE DEPARTMENT OF EDUCATION’S CASE

The DOE’s case was presented by , Esq. through testimonial and documentary evidence.

, the DOE’s witness, testified that she is a New York certified school and that she has worked as such with the DOE for approximately 14 years. Her duties require her to assess students and interpret assessments from outside sources. She participates in IEP meetings, writes IEPs and does observations. She recalled that she participated in the student’s previous IEP meeting, observed him for the 20102011IEP and also participated in the January, 2011 IEP meeting. She identified all the participants at that meeting and stated that everyone was present for the entire meeting.(Tr. 104-106)

The identified all the reports that were used at the IEP meeting. She noted that the School provided an Interdisciplinary Report of Progress prior to the meeting and provided a Evaluation at the very start of the meeting. The evaluation indicated that it was difficult to test the student because he tired easily and could not sustain his to the tasks presented. His IQ score was however, the evaluator cautioned against relying on that score since the student was difficult to . On the test he was found to be in the range. (Exh. 11) She discussed the Interdisciplinary Report which detailed his functioning in the classroom, his and his limited ability to and with his peers. His academic skills were addressed as were his related service needs and objectives. (Tr. 108-110; Exh.10)

The discussed her October 28, 2009 observation of the student at the School; the observation lasted approximately 50 minutes. Upon approaching the student’s classroom, she found him in the hallway with his teacher, lying on the floor, up into the air and items. After 15 minutes of this he went into the classroom and then in self . Later, he out of the classroom; the observer noted that she did not see him leave. Eventually, she found him in the elevator, lying on the floor . He returned to his classroom, after wandering into another classroom. At no time did she observe any academics being taught to the student. (Tr. 111-113; Exh. 12)

The referenced the recommended program from the January, 2010 IEP meeting and explained why she believed it was appropriate then and now. She described the student as having significant issues, concerns and deficits. He is primarily

. He exhibits and in self . He has minimal academic skills and needs a crisis paraprofessional to keep him on task and safe. (Tr. 115-

118) She indicated that the CSE team addressed his management and / needs by providing a full time Para, a Intervention Plan, , small class setting and goals targeting his / needs. She stated that a Functional Assessment (FBA) was not warranted because the functions of his maladaptive were already known. The team had a clear understanding of what his triggers were and how to address them. Also, the team recommended the use of a System ( ), Go Talk 20 and therapy daily to reduce his frustration arising from his inability to communicate . She recalled that everyone participated in designing his IEP, including his teacher and worker from the School and his mother. The reviewed all of his goals and objectives identified the targeted areas of deficits to be addressed and found them to be measurable and appropriate. She noted that all the goals in the IEP were reviewed at the meeting and no one disagreed with the final draft. (Tr. 123-124;126-127 and 135-137) (Exh. 5)

She stated that the CSE team did not consider the School as an option for several reasons. She did not feel it was appropriate, the student had been there or years, there has been very little progress. The school does not focus on academics; the school focuses on increasing and ability to communicate. The school uses the Developmental Individual Differences Relationship-Based (DIR) teaching methodology. DIR focuses essentially on the -developmental processes of relating and . The DIR methodology looks at a student’s passions and uses those passions as a basis to attempt to increase and . The stated that despite the student being at the School for several years, he still functions at a very low academic level. She has yet to observe him being able to sit and in any kind of academic task. Moreover, she was recently in his class, observing another child and saw no progress. The school is not accredited and does not use New York State/New York City assessments. She opined that the School was not an appropriate placement based on her aforementioned concerns regarding minimal progress and low academic functioning.(Tr. 137-140 and 142-143)

Ms. did a comparison of a classroom versus a classroom, a clear difference is that the former is much more structured, the expectations were higher of the students and the students lived up to those expectations. Generally speaking, the TEACH methodology is used, which is more easily understood as a task analysis approach. Moreover, from her numerous observations, a teacher in a class is more flexible in her approach and is open to whatever will work for the student. The School has minimal structure and allows the student to take the lead based on what the student wants to do. Next, she discussed in detail the other programs considered and noted on the IEP; she gave reasons for why the program was deemed inappropriate. (Tr. 144-146 and 148-149) (Exh. 5)

The acknowledged on cross-examination that pages 3,4 and 5 of the IEP were drafted prior to the meeting and page 9 was taken directly from the previous IEP. She noted that page 9 of the IEP was relied on to determine the starting point for related services and other goals for the current year. (Tr. 169-170) She admitted that she was not aware whether anything in the Commissioner’s regulations that excused her from doing a Functional Assessment, even if, as here, the function of the child’s maladaptive have already been determined. Also, she addressed the student’s need for breaks. She identified some of the tools that would be used for his break, such as swinging, deep pressure, joint compression, brushing, scooter and activities. She conceded that she did know if all the aforementioned tools were available at each placement. She opined that the School was more restrictive than the recommended placement since it did not afford the student an opportunity to with nondisabled children. However, when the CSE convened in January, the team had no way of knowing whether the child’s proposed placement would be a school within a general education school or not.(Tr. 163-164; 169-172 and 175-177) (Exh.5)

, testified that she is a education teacher in at ; she teaches a class for children only. This is the beginning of her sixth year teaching this class. She reviews the student’s IEPs, conducts assessments and collaborates with service providers and other teachers who work with her students. Also, she works with the student’s parents. Her school offers training to the teachers, five times a year. The training covers ABA, , TEACCH and handling FBAs. In July, 2010, the classroom paraprofessional (para) was , who has 24 years experience with the DOE. She provided a class profile of her class, from the beginning of the school year. There are five students, their ages range from to years old. Their reading levels are from

st

to grade. Math levels are between and grade for two students, the remaining students are on a pre-level. (Tr. 216-218; 220-222 and 223-224)

The teacher discussed in detail the curriculum used for the class, materials used and the various methodologies employed. She noted that TEACCH is highly structured and that the children respond well to it. They like having their own work station and visual schedule. Several students were using when they started. However, none are using it now. The school is housed in a five story building; there are three schools in the building. Two of the schools are general education schools; the three schools have common areas, such as the cafeteria, auditorium and gym. In addition there is a room available to the children.(Tr. 226-230 and 232-234) The school day begins at 8:10 AM and ends at 2:45pm.(Tr. at 237) Ms. stated that some of the topics covered at her school ,are parent training, toilet training, , ABA, TEACCH and how to handle al issues that arise. She noted that the District also offered parent training and that some of the DOE contracted agencies provide parent training. When parent training is offered the school sends the information to the parents and the parents respond letting the school know if they are available to attend the training. (Tr. 238-240)

The teacher reviewed the student’s January, 2010 IEP, she addressed several sections of the IEP, including academic performance and learning characteristics, management needs, / performance and needs, health/ management needs. She explained how she would address them through different strategies, ABA, use of visual and prompts and collaboration with the services providers. She stated the student’s academic, / needs were similar to other students in her class and that he would have been grouped within the three year academic range mandate. (Tr. 242-244 and 246 to 248) The teacher reviewed the goals and stated how she would have implemented them. She was not able to recall if his parents visited the school, but, was aware of the visit through the lab book. Ms. opined that based on the student’s IEP her school would have provided the student with a free appropriate public education. ( Tr. 261-263 and 277-278)

During cross-examination, the teacher acknowledged that her testimony regarding the child is solely based on her read of the IEP and that she did not review any reports or evaluations. She agreed that she had no way of knowing whether the information contained in the IEP was accurate or not. Moreover, she admitted that she never met the student and that she never assessed him. (Tr. 282-284) Her current class consists of 5 students, herself and a class para. On a typical day she will spend 20-30 minutes providing instruction, for each student.(Tr. 290-292) The teacher stated that she did not have a swing in her class nor did she recall if the gym had one. She described the room as the size of a big classroom with balls, scooters, tables and hula hoops. (Tr. 294-296) PS 94 is a education school with self-contained classes only; it is housed in a general education school. (Tr. 299-300)

THE PARENTS’ CASE

, program director of the School, testified that she is a New York State licensed clinical worker and is New York State certified as a (SAS) school administration supervisor as an SDA, which is a school district administrator certification. Prior to coming to the School, from 1993 to 2005, she worked with children with or with needs. She started at the School in July, 2005, it was the beginning of the start up of the School. The School caters to “children with -developmental delays in relating and , “which includes children on the spectrum.” (Tr. 316-318 and 319-321) Ms. discussed the various methodologies that are used to educate children with and the underlying philosophy associated with each. (Tr.322-323)She spoke in depth about the developmental individual indifference relationship (DIR) methodology; she explained it is a model based on thirty years of research. It views children on the spectrum as presenting issues that arise from basic developmental delays as opposed to being in nature. She explained that under the DIR model there are six basic levels that all children go through.(Tr. 324-326) The level is regulation which addresses the child’s ability to process information and apply it effectively. The next level is shared attention, the ability to look at something and share attention with someone. The third level is turn taking in . “The fourth is shared problem solving. The fifth is symbolic thinking and the sixth level is building logical bridges between ideas. (Tr. at 327)

She explained that Floor time is an intervention under the DIR umbrella; it is designed to help the child progress up the developmental ladder. She opined that DIR is effective and she has seen progress under it over the four years and half years the School has been existence. She noted that there are a group of DIR schools throughout the country that she collaborates with. Those schools have done research have seen students progress against all domains. The School’s population consist of students from ages to ; all the students have developmental delays in relating and . Some of the students are diagnosed on the spectrum, others with ’s syndrome, Fragile X, and disorders, motor or motor . There are 107 students at the school this year. She described her day to day duties as program director as entailing hiring, interviewing and training of staff. She makes sure the school is in compliance with all governmental agencies. She meets with the teachers and service providers; she is involved with day to day operations of the school. She described the school’s staff as all having New York State certification in their particular field. The school follows New York State standards and adapts them as needed to meet their student’s needs.(Tr. 332-334 and 335-337)

She provided a description of the school, the school occupies five floors; it has two elevators, a rooftop playground, a regulation size gym and therapists offices. The school has a nurse’s office with a full-time registered nurse and there are two gyms. She explained the difference between a regular gym and a gym. A gym has hooks in the ceiling so that different swings may be hung from them. Swings are a major component of integration therapy because they address a child’s vestibular system. The vestibular system is the system in our bodies that determines how we read movement, such as standing upright or walking. Also, there are mats, hooks and equipment designed to address the system. (Tr. 339-340 and 342-343)The director stated that the school has two gyms, one is for the therapists and the other is to train the classroom staff to provide input for the children throughout the day. (Tr. 344345)

The classrooms are equipped with wireless FM units so that the children who need FM units are not singled out, because walking around with headphones makes that child standout apart from the rest of the children. Class size runs from five to eight students; one adult is assigned to every two students. The head teacher oversees the curriculum for each child and is the team leader of all the staff that works with the child including therapists, , worker and assistant teachers. There is one head teacher per class, whether there are five students or more, up to eight students. (Tr. 350-353) There are weekly team meetings for each child; the director attends a couple a week. Every family is assigned a worker who provides training and as well as making referrals to other professionals. (Tr. 354-355)

She identified the student’s class schedule and mentioned that schedules routinely change due to changes in related services. The schedules are kept in a folder and on the server so that teacher and administrative staff may access them.(Exh. N) The director reviewed the enrollment contract and her affidavit, she stated that the undated enrollment contract was signed June 23, 2010 because her affidavit indicated that was when the payment was made for the current school year. Moreover, if the parents fail to obtain full payment from the DOE, the parents are legally responsible for any unpaid balance.(Tr. 365-367 and 375-376) (Exhs. S and Y)

The director stated that she has known the student since September, 2006 when he started attending her school, she stated that she sees him on a regular basis throughout the school. She noted that he spends a lot of time in the gym which is near her office. The student presents as a typical child diagnosed on the spectrum; he has - delays in and . His weakest areas are , processing and his system. The student for the most part is non- ; he has delays where the s in his mouth fail to produce intelligibly, making it very difficult to understand him. Due to his severe processing issues, it takes a lot of time for him to process information. The student struggles with processing information he hears so oftentimes if he is given a command with a , he can follow it, without a he is not able to understand. His low tone makes it difficult for him to hold himself upright and navigate his body. (Tr.391-394)

The student is easily distracted in the classroom, simply by students or teachers moving around in a room. An open door or light on can be distracting because he will have to go to it. is visual system is strong and can be helpful in learning new words/tasks, however, it can also be over stimulating for him. When it becomes over stimulating he can become very distracted, deregulated and needs input to become regulated. The most effective input for him is swinging, he is able to use swings effectively to get regulated. Other interventions to help him become regulated are deep compression, where he is given joint compressions at his shoulders and his elbows and sitting on chair. Depending on his system, when he is regulated and calm, the student can attend for five to ten minutes. His highest level of attention or ability to relate occurs when he is on a swing or getting receiving some kind of vestibular input. (Tr. 395397)The director discussed in detail how the school addresses the student’s needs, sequencing and motor planning. (Tr. 407-409)

Ms. reviewed the student’s progress report dated May, 2010, which was written at the end of the 2009-10 school year. She did a comparison of his progress from May, 2010 to where he is now. She recalled that in May, 2010 he did not have any sight words, now he has at least . He is using more approximations more spontaneous throughout the day. He has more ability to remain regulated for extended periods of time. He has a greater ability to recognize when he needs input and will request things that will help to keep him regulated. His focus on reading and answering questions has improved. His self- and have decreased. His with his peers have improved; he has more awareness of his peers and is sensitive to their needs. (Tr. 413- 415; Exh. R)

The director testified that she was not at the January, 2010 meeting for the student. She stated that she has substantial familiarity and experience in reviewing IEPs and culling out important information. She reviewed ’s IEP and concluded that it did not provide sufficient information about the student’s present performance and / performance. The IEP failed to indicate that the student has significant global delays, his deficits, processing delays and needs. It does not identify which based activities are needed nor does it indicate which oral protocol is required to address his oral needs. She found the goals to be lacking since oftentimes they did not specify what the student’s ability was was at the time the IEP was written.(Tr. 424-426 and 428-429) (Exh. 5)

She opined that the TEACCH and ABA methodology were not appropriate for the student. She explained that TEACCH methodology focuses on developing independence; the child is expected to learn the skill and progress to the next skill with reduced adult support, this would be difficult for the student to accomplish. The ABA approach is to focus on , however, the student’s needs are based, not . The student cannot correct his on a command and reward system, he has to be regulated to control his and requires input. (Tr. 430-432) The director discussed her knowledge and familiarity with the DOE’s program and opined that it was not suitable to meet ’s needs. She noted that the class has a mix of children with development deficits, not all are . The type of children in the class, the class size and the adult ratio would collectively be very difficult for him to navigate. Also, she opined that he does not need a paraprofessional because their training generally is in crisis prevention intervention and not necessarily focused on integration and needs. She stated that the school was appropriate because it was able to individualize his program to meet his needs; it provided family support via the worker and teachers. The program developed at addresses his academic needs, integration deficits, skills and motor planning. (Tr. 430-431; 435-437 and 444-446

On cross-examination, the director stated that her school does not implement the DOE IEP, they do their own assessments when the child starts school and review all the documentation on the child, including the IEP. Generally speaking, the school does not use a functional assessment (FBA) and/or a intervention plan (BIP) (Tr. 501-

502) She acknowledged that the last time she visited a placement was about five years ago; she has visited a 10-12 placements. She stated that the student does not need a para because he has been successful without one. (Tr. at 508 and 511-512)

During redirect, Ms. explained that her school views differently from the way public schools do, the public schools look at as either something that is to be extinguished or developed. Whereas, the School looks at as a form of , they try to understand the reasons for it and then try to remove the need for the as opposed to just extinguishing the unwanted . The student is provided protocols as well as input to reduce his aggressive or self- . Those interventions have been successful as evidenced by the reduction of the negative .(Tr. at 517) The director admitted that she did not visit the proposed public school recommended for the student.(Tr. at 525)

, testified that she is the student’s head teacher; she has two assistant teachers. She has completed her Masters at New York University and is in the process of obtaining New York State certification as a education teacher.(Tr. 538-539) She started working at the School in June, 2010 as a teacher assistant and was promoted to head teacher in September, 2010. (Tr. at 542 and at 545) Her principle duties as a head teacher are to manage the children’s individual programs, manage the assistants and work with the parents and providers. She, her assistants and providers function as a team to help the students achieve their goals. They have weekly meetings; communicate through emails and phone calls. Daily reports are provided to the parents via the notebooks.(Tr. 547-549)

The teacher described her students as being pretty much on the early part of developmental spectrum, which makes it hard for them to sit for long periods of time and/or to attend. She explained that all the children struggle with regulation, with adults and peers, skills and . She described in detail how the School addresses these delays and creates an individual program for each child. (Tr. 558561 and at 563) The students placed in her class were selected based on being on the same developmental level. It was deemed to be more efficient to group the students based on the same developmental level with similar goals instead of integrating them into different developmental levels.(Tr. aat 570)

The teacher described the student as being affectionate, non- and very based. . He is able to effectively communicate through approximations, and gesturing. (Tr. 572-573) When frustrated he in aggressive and self . She has reduced some of his undesirable by making him aware of his schedule, he knows what is going to happen next, so he is better able to handle transitions. He requires a diet; he goes to the gym once or twice daily to use different swings. He has , and , which all address some of his needs. In he does protocols; scooter boards, activities and deep pressure are all part of his diet to help keep him regulated.(Tr. 620-621) She described the various strategies that are employed to address the student’s integration needs, to improve his skills and skills. She discussed in detail the effectiveness of the strategies and the improvement that has occurred as a result of same. (Tr. 624-626 and 627-628) Also, she noted his growth in the area of activities of daily living (ADL) and mentioned areas that are currently being worked on. She noted that he has made academic progress this year in the areas of colors, shapes, identifying body parts and in reading as well as math. The supports used in reading have helped him to attend longer, motivated him to initiate reading and be more d in the enjoyment of reading.(Tr.636-637)

She opined that ABA is not appropriate for the student because it lacks a relationship basis and focuses too much on sitting and attending. The student thrives on relationships, he is highly motivated by preferred adults and peers. ABA’s focuses on trials and data, not the individual. This approach would be very frustrating to the student because he is more relationship orientated in his learning process. (Tr. 645-647) She opined that based on her experience in a District 75, class setting and working with ABA that the proposed would not be appropriate for the student because it is not focused on the individual needs of the student and does not discriminate in its curriculum regarding the students’ different levels of abilities. (Tr. 649-650)

On cross examination, the teacher acknowledged that the teacher assistants are not certified to teach education and that she must apply for her certification. She admitted that when she worked for District 75, it was as a para and that she never taught a . The teacher stated that she never visited the proposed class or proposed school. Her involvement with DIR has been for less than a year. (Tr. 652-654 and at 683) All of the students in her class are reading on a pre- to pre-reading level and are the same for math. None of them can read; some have sight words. The students’ ages range from and all are . (Tr. 655-656) Ms. reviewed the student’s school’s schedule of classes and admitted that the school had failed to provide as recommended on the IEP. (Tr. at 669, Exh. N) The staff maintains data on the student’s and academics.(Tr. at 673) There are no textbooks, no workbooks and no computer programs used in the classroom.(Tr. at 681) The school is self contained, there are no opportunities for mainstreaming. Her students do not visit with other students nor do other students visit at her school.(Tr. at 687 and 709)

testified that she is a New York State licensed worker and is a licensed clinician. She has worked as a worker at the school since September,

2008. Her duties at the school require her to act as a liaison between the parents and the classroom staff. She provides individual services for some of the students; she does parent groups and sibling groups. She is available to provide support for the classroom staff. (Tr. 717-719) She was the student’s worker last year, for the 2009-10 school year. She was in his class on a daily basis and provided support to his mother. She stated that the student’s greatest need would be based.

She visited with his mother in June, 2010 to provide support for the mother. She described the school visit and expressed her concerns, mainly she found that the school lacked the necessary equipment, no swings and the gym is a shared space. Also, the room was used as a classroom sometimes, the student needed access to output throughout the day, to remain regulated. She opined that the placement was inappropriate because it would not meet his needs which have to be addressed throughout the school day. (Tr.725-727 and 731-732) (Exh. CC) On cross-examination, she admitted that she never counseled or taught the student. She explained that when she visited his class last year, she would sit with him, play with him and or help with activities he was d in. (Tr. 740-743)

The mother stated that she had concerns regarding her son’s development when he was approximately a and years old. She explained that her son was fine up to one old. However, after he received his shots he was sick for 14 days. After the shots, he did not in eye contact and was not responsive; he stopped . He was evaluated through the City’s Early Intervention Center, he started pre-school. He remained in DOE placements until the summer of 2006; she placed him at the School in September, 2006. She has kept him there through impartial hearings and/or through settlement with the DOE. (Tr. 751-753 and 757-759) She discussed the January, 2010 IEP meeting and her opposition to the proposed placement because it lacked sufficient support for her son. She acknowledged receipt of the Final Notice of Recommendation (FNR) dated June 15, 2010. She visited the proposed school, she thought it presented safety issues and did not have enough support. The proposed class was too advanced, it consisted of and graders. The school did not have a gym and she did not see any swings.(Tr. 762-763 and 765-767) (Exh. 9)

She has seen substantial improvement in her son this year, he is more, he is able to handle his frustrations better and he is better. He is more able to express his wants and needs. Overall, he is a happier child. He used to run away if the door was open, without any sense of danger and now he does not in that . (Tr. 775-776) She wrote a letter in January, 2010 to CSE requesting information on the proposed program, teaching methodologies and qualifications of the staff. She received no response. (Exh. I) On June 16, 2010, she wrote another letter to the CSE, informing them that her child was not offered a FAPE and her intention to keep him at the School. (Exh. H) She received no reply. Subsequently, on August 16, 2010, the parents’ attorney wrote a letter to the CSE; he received no response. (Tr. 779-780) (Exh. F)

She acknowledged on cross-examination that the contract for the School was signed at home, by herself and her husband; it was not dated. She was unable to estimate when they signed the contract. (Exh. S) She stated that if she fails to obtain payment from the DOE; they are responsible for the unpaid balance. She provided documentation to the school upon signing the contract.(Tr. 789-791 and 793-795) She acknowledged that she entered into a loan agreement with the Dickinson Corporation to borrow the $7500. Deposit payment for the school. The loan agreement was signed only by the mother and it did not indicate any payment schedule. The mother stated that she illegally responsible to pay the loan back. This is the only loan she has secured from the Dickinson Corporation. There is no additional paperwork, only the one page. (Tr. 801-804) (Exh. Z) The mother admitted that her son was not receiving all the related services recommended on the IEP. She stated that the is now provided daily and that will be provided. (Tr.820-822 and 823-824)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a free appropriate public education (FAPE)4 that emphasizes education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd.

of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

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

F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). Also, a FAPE must be available to an eligible student "who needs education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade" (34 C.F.R. § 300.101[c][1]; 8 NYCRR 200.4[c][5]). program for the next school year" (34 C.F.R. § 300.324[b][1]; 8 NYCRR 200.4[f]; see 20 U.S.C. § 1414[d][4][A][i]; Educ. Law § 4402[1][b][2]). A district must have an IEP in effect at the beginning of each school year for each student in its jurisdiction with a disability (34 C.F.R. § 300.323[a]; 8 NYCRR 200.4[e][1][ii]; Cerra, 427 F.3d at 194; Tarlowe, 2008 WL 2736027, at *6 [stating "[a]n education department’s delay does not violate the IDEA so long as the department 'still ha[s] time to find an appropriate placement … for the beginning of the school year in September'"]; Application of the Bd. of Educ., Appeal No. 10-006; Application of a Student with a Disability, Appeal No. 09-111; Application of a Student with a Disability, Appeal No. 08-157; Application of a Student with a Disability, Appeal No. 08-088). ]). As a matter of State law, a school year runs from July 1 through June 30 (Educ. Law § 2[15]). Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't 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). Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087).

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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008].

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her 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 parent's 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 (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073). The 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). This relief was extended to prospective payment for services. Connors v. Mills, 34

F. Supp. 2d 795(NDNY 1998)

I have reviewed all the testimonial, digital and documentary evidence. Clearly, the central issue here is whether the CSE provided this child with a FAPE for the 2010-11 school years when it convened an IEP meeting on January 12, 2010. The CSE recommended a class setting with related services of , OT, PT, and a crisis management paraprofessional. The record shows that this is a student with severe global delays; he has -developmental delays in relating and . His weakest areas are , processing and his system.

It is abundantly clear that this student has severe problems pertaining to his vestibular system which requires a significant amount of integration therapy. Swings are apparently a major component in addressing his needs (Tr. 340-341). The proposed site has a makeshift gym that alternates as a classroom and there are no swings to address the student’s needs.( Tr. at 731 and Exh. CC) The absence of any swings and appropriate equipment is a fatal flaw of the proposed site. The record is replete with testimony establishing the importance of swinging to assist the student in regulating himself so that he may be available for learning. In fact, Ms.

stated that “his greatest need would be based” . (Tr. at 727) His mother testified that she takes him to the park on week-ends, for 15- 20 minutes so that he can swing and calm down. (Tr. at 768) Each person who testified on behalf of the student has discussed in detail his need for a diet and breaks throughout the day on a daily basis. (Tr. 340-341; at 621; 624-625 and 767-768)

Also, the record clearly indicates that the CSE held the January, 2010 meeting with the expressed intent of placing the child in a placement; it did not give due consideration to the parent and team members who stated the ABA and TEACCH approach was not appropriate for the student. TEACCH focuses on developing independence and expects the student to move on to the next skill with reduced adult support, which would be difficult for to do. He requires a lot of adult support and repetition. The ABA methodology focuses on ; the student’s needs are based. The student is incapable of correcting his on a command and reward system. He has to be regulated to control his , which requires input throughout the day.(Tr. 430-432; 636-637)

The Supreme Court has held that parental participation was a central principle of the IEP process. The Court held that” the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation in every stage of the administrative process.” see Rowley, 458 U.S. at 205-206. The Court held that the “core of the statute, however, is the cooperative process that it established between the parents and the schools” Schaffer v. Weast, 126 S.Ct. 528 at 532(2005) The parents were denied an opportunity to meaningfully participate in the decision making process. Based on the foregoing, I find that the District failed to meet its burden and that there was no FAPE for the 2010-11 school years.

Next, I must consider the appropriateness of the parents’ placement at the School. The record shows that the student has progressed academically, and . He has learned at least 15 sight words, he is able to regulate himself better and he his ability to stay focused has improved. He is able to express his needs through approximations and . There has been a substantial decrease in self- and . He is more attuned to his peers and more connected to them. Overall the student is a happier child. (Tr. 413-415; 627-630 and 775-776)

In conclusion, I find that the equities favor the parents; the parents have cooperated with the CSE by providing relevant documents, participating at the IEP meeting and visiting the proposed site. They expressed their concerns via letters and gave the CSE ample time to address those concerns.(Tr. 762-764) (Exhs. F, H and I) The parents are entitled to reimbursement for payments made directly to the School and have met Connors criteria to receive prospective funding. (Exh. T)

ORDER

The Department of Education shall reimburse the parents for all tuition payments made to the School, for the 2010-11 school years, upon reasonable proof of payment and shall continue funding the remaining tuition balance for this school year. Dated: June 10, 2011

_________________________

THERESA R. JOYNER, ESQ.

Impartial Hearing Officer

TRJ: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

PARENT

A Impartial Hearing Request and Proof of Transmission, 9/13/2010, 19 pp. B Findings of Fact and Decision, 7/30/10, 24 pp. C Omitted D E-mail with , 9/22/10, 2 pp. E Omitted F Letter to , 8/16/10, 3 pp. G Letter to , 6/17/10, 2 pp. H Letter to , 6/16/10, 2 pp. I Letter to , 1/14/10, 2 pp. J Omitted K Omitted L Omitted M Multidisciplinary Progress Report, 5/12/09, 15 pp. N Updated Weekly Schedule, 1 p. O 2010-2011 Attendance Report, 2 pp. P School Brochure, 2 pp. Q School. Org Printout, 12 pp. R Interdisciplinary Progress Report, 5/10/10, 11 pp. S 2010-2011 Enrollment Contract, 5 pp. T 2009 New York State Resident Income Tax Return, 2 pp. U E-mail from New York City Department of Education, 7/19/10, 2 pp. V Letter to with Enclosure, Undated, 3 pp. W Affidavit Reflecting Payment, Undated, 1 p. X Letter to , 11/23/10, 3 pp. Y Affidavit Reflecting Payment, 1/3/11, 1 p. Z Loan Agreement, 6/22/10, 1 p. AA Authorization to Conduct Observation and Evaluations and Proof of

Transmission, 12/14/10, 2 pp. BB Letter and Proof of Transmission, 12/7/10, 2 pp. CC School Visit, 6/22/10, 1 p. DD Omitted EE Progress Report from School, December 2010, 12 pp.

DEPARTMENT OF EDUCATION

1 Amended Due Process Response, 1/12/10, 5 pp. 2 Due Process Response, 9/22/10, 4 pp. 3 Notice of IEP Meeting, 1/4/10, 1 p. 4 12-Month Consent Form, Undated, 1 p. 5 IEP, 1/12/10, 18 pp. 6 Minutes of CSE Meeting, 11/12/10, 18 pp. 7 SBST Material Checklist, 1/12/10, 1 p. 8 Notice of Recommended Deferred Placement, Undated, 1 p. 9 Final Notice of Recommendation, 6/15/10, 1 p. 10 Report, 12/9/09, 15 pp. 11 Evaluation, 11/30/09, 12/1/09, 12/2/09, 9 pp. 12 Classroom Observation, 10/28/09, 3 pp. 13 Email from , 3/31/11, 2 pp. 14 DVD Without Sound, 12/1/10