New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student‘s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: December 7, 2010

December 22, 2010

January 10, 2011

January 14, 2011

February 1, 2011

February 9, 2011

February 23, 2011

March 9, 2011

Hearing Officer:

CORRECTED

Hearing Officer‘s

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 7, 2010

Parents

Parents

Parents

NYCDOE

School NYCDOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 22, 2010

Parents

Parents

Parents

. NYCDOE

School NYCDOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 10, 2011

Parents

Parents

Parents

. NYCDOE

NYCDOE

Ms. NYCDOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 14, 2011

Parents

. NYCDOE

NYCDOE

, NYCDOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 1, 2011

Parents

Hearing Officer‘s

Parents

Parents

School — Parents

. NYCDOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 9, 2011

Parents

Parents

School — Parents

School — Parents

School — Parents

. NYCDOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 23, 2011

Parents

School — Parents

. NYCDOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 9, 2011

Parents

Parents

Parents

. NYCDOE

Hearing Officer‘s

HEARING OFFICER’S FINIDINGS OF FACT AND DECISION

The matter of came before me on December 7, 2010. The date of my designation as Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. s. 1415(f)(1) was November 15, 2010. The hearing was convened at the request of the parent, which was received on October 12, 2010. The hearings were held on December 7 & 22, 2010; January 7 & 14, 2011; February 1 & 9 & 23, 2011; and March 9, 2011. The parties each made a request to submit post-hearing memoranda. The compliance date is extended. Appended to the record are the lists of persons in attendance and of documents submitted into evidence.

Parent has requested this Hearing seeking (1) tuition reimbursement at the School for the 2010-2011 academic year and a medical transportation accommodation for the school year. The Parents allege the CSE (Committee on Special Education) failed to offer the student a FAPE (free and appropriate public education) (1) by not evaluating the student as to the appropriateness of the methodology (used by the NYCDOE) for this and child; (2) the NYCDOE (New York City Department of Education) placement failed to provide services consistent with that proscribed in the IEP; (3) the placement at @ failed to offer necessary to meet her sensory challenges; (4) failed to offer a designed to meet the sensory needs ( , - , - ) of the student; (5) the placement failed to meet the sensory gymnasium needs of the student; (6) the failed to provide music and listening programs to address the student‘s social/emotional functioning and promote - ; (7) lastly the Parent alleges a transportation medical accommodation was granted and thereafter rescinded without justification. See Exhibit A.

BACKGROUND

This student is currently in a grade at the school (recently funded by the NYCDOE) following an interim placement of (Exhibit 22); she is years old and classified on the IEPs (Exhibit IHO 1; Exhibit 5; Exhibit 10) as . The classification is not in contention and the student is estimated to be or so years . The School is a New York State non-approved school for the provision of Hearing Officer‘s educational services to children. Through the student was provided with -school services and subsequently has attended the School since January 2009 arising from a settlement agreement of a prior impartial hearing.

THE POSITION OF THE PARTIES

The specific complaints of the parent against the NYCDOE are previously hereinabove identified. The student is identified as - with , , and is an augmentative ( - ). The student has previously to improve her . The student is known to , ( - ) and generally may when by and may when other and / (Ex. 3). The student engages in some - through various techniques as taught to her by her to maintain availability for education instruction however when she needs the attention of a skilled/trained to apply input to avoid continued . Exhibit IHO 4 p.4. The student is capable of executing one-step instructions but needs the of an to follow instructions. The parents and staff at the School insist that this student needs throughout the day for re-direction who is capable of implementing pro-active (preventative) techniques to arrest possible . The NYCDOE had it prepared an IEP designed to provide a FAPE would have included a educational consistent with the student‘s documented needs of a preferred and her identified - . The parent also challenges the methodology employed by the NYCDOE at the placement offered at @ as . “The presumes the ability to work independently and the ability to sequence and motor-plan through a range of activities. Tr. p. 969:23-25. Tr. p. 719:17-21. The of @ , , admitted that some tasks can require a large amount of one-to-one interaction between a child and an adult in the H classroom. Tr. p. 719:25; 720:1. However, this teaching model relies heavily on independent work stations—where a child works alone; and small group instruction. Tr. p.592. The method does not rely on one-to-one instruction. has great difficulty in motivating herself, and requires a significant amount of in performing tasks from start to completion. Tr. p. 968; 971; Parent Ex. J & M. does not have the skills to be independent. Tr. p. 972:3-4.” Exhibit IHO 4 p.5. Hearing Officer‘s The NYCDOE takes the position that the parent did not dispute the student‘s classification, the levels of performance, the identification of deficits or the provided augmentative device and claims that at the April 2010 CSE meeting parents did not dispute the goals or the type of placement offered. Further, there is no complaint by the parent as to the timeliness of the FNR (Final Notice of Recommendation). Tr.p. 39-41; Exhibit 2. The NYCDOE alleges it “provided the student with a free and appropriate public education (―FAPE‖) for the 2010-2011 school year. The DOE held three IEP meetings for the student prior to the start of the 2010-2011 school year to adequately address the student‘s academic needs, socio-emotional needs, assistive technology needs, related service needs, and transportation needs. Each IEP meeting was duly constituted. All the at the meetings participated (with translation services provided to the parents) and input from the School . The placement selected by the DOE for the student was in the student‘s district and it was an appropriate setting for the student. She was placed with functionally similar students within a thirty-six (36) month age range”. Exhibit IHO 3.

Regarding the complaint concerning the transportation issue the NYCDOE claims it properly responded to the request for a ( ) by implementing what in fact is an air of and . It appears this accommodation was made on the April 2010 IEP to correspond to the programmed assignment at @ commencing July 2010-June 2011 however the request was made and received in October 2009 when student was spending in excess of hours in transit at the School.

THE PARENT’S CASE

The parent is monolingual and has sought out appropriate services for the student through many sources. They have worked with and attended each and every meeting held by the NYCDOE. At the initial annual review for the 2010-2011 school year held in January 2010 the parents attended and had the benefit of a to assist them. This IEP annual review formed the foundation for each successive IEP review subsequently held and herein challenged by the parents. Exhibit IHO 1. It is absolutely

Hearing Officer‘s clear from the January 2010 CSE minutes that the parent declared the desire to have the child remain at the School (Exhibit 16). The NYCDOE in its Due Process Response identified five out of the six possible pre-determined options of progressively restrictive class assignments yet never considered recommending a - school setting nor was the assignment of a considered (Exhibit 13) even in the face of notice concerning - . Throughout the hearing there was no mention of a functional ( ) nor was any ( ) developed despite multiple reports and documentations indicating the type and circumstances of - by the student (Exhibit 3 and 13). A year old report (Exhibit 23) indicates the student scoring in the range of cognition and the student is reported to be intellectually however there is no indication that the testing instrument was designed to examine a - child but did contra-indicate that the child was cognitively testable at that time (Exhibit 23-4). The parent maintains that within a short time of attending the School the student began to exhibit word approximations notated as pre-verbal. The parent saw this and positive attitude/affect changes as significant progress and it is clear from the documents that the stated intention of the parent was always to maintain the student‘s continued placement at the School (Exhibit 16). Parents claim this actual notice obviates any allegation that the tenday notice requirement was un-timely. “On each IEP developed for , there is no indication of any discussion of a school placement. See, e.g. Parent Ex. G. Notes taken at January 26, 2010 IEP meeting by School do not reflect any consideration of a State-approved school, even after hearing that the parent, Ms. , sought to keep at the School. DOE Ex. 16; Tr. p. 1784;

1791. This procedural violation of failing to consider a nonpublic school placement for impeded right to FAPE. The CSE did not thoroughly review the full range of programs available to significantly students like . Rather, the CSE narrowly focused on its District , despite its inadequacy to meet needs.” Exhibit IHO 4-8.

“The DOE failed to recommend any for , such as or that would address and . Tr. p. 1179. history of and is clearly

Hearing Officer‘s documented in her educational record, including DOE Ex. 3, the District Referral Form, which states ‗When she does what she , she will and her with her or up the . Has a time with her own and those of . Will when others .‘ See also Tr. p. 1006:8-12. The School testified that a - student like would not benefit from a session. Tr. p. 272. But she failed to explore services to teach her strategies to with her , in the absence of a more class staffing ratio.” Exhibit IHO 4.

The parent further alleges that the placement offered by the NYCDOE cannot provide the on the IEP. “When the parent, Ms. , visited @ in early July 2010, she was informed that would receive administered in a group of students inside the classroom, four times a week. Tr. p. 1801; Parent Ex. A-2. corroborated the parent‘s testimony—Ms. testified that, in the summer of 2010, District programs were directed to administer inside the classroom in a group setting, rather than in a separate location. Tr. p. 741:16-23; 744:13-16. ‘s IEP mandates that she receive three times a week on a one-to-one basis. Parent Ex. F & G. Therefore, @ was unable to meet ‘s needs during the summer session.

At the hearing, the Ms. , testified that her school does not have an on staff. Tr. p. 588:20-21. Based upon the testimony of the DOE witnesses, a reasonable presumption would be that whatever staff was available during the summer was no longer available during the regular school year. The recommended for at @ , , testified that there are no students receiving during the school day. Tr. p. 654. Though Ms. testified that her school generated Related Service Authorization (RSA) letters for the students to receive , Ms. was unsure whether her students were able to utilize the RSAs. Tr. p. 588. Ms. did not know of any student who was actually receiving at through use of the RSA. Tr. p. 654:6-10. Consequently, the DOE did not prove at the hearing that it could meet ‘s needs through the issuance of an RSA. Hearing Officer‘s

There was no testimony that even one child in the entire school was successfully able to utilize his or her RSA for . Tr. p. 709:10-17.” Exhibit IHO 4.

The student has clearly identified needs which ―require as part of her special education curriculum, the CSE recommended a school without a . Tr. p. 729. Furthermore, there is no one on at @ who is trained in or trained in the use of . The of @ opined that could improve her and during education, or class. Tr. p. 729:18-25. However, the was unsure whether her school‘s gym is trained in and . Tr. p. 730:1-7.” Exhibit IHO 4.

The parent complains that upon visiting the assigned placement she was informed that there was no assigned at the placement. It is the position of the parent that sensory treatment should not be limited to any particular space or environment—it needs to be generalized throughout the school and throughout the school day. Tr. p. 1274:16-21. The lack of a at @ amounts to the lack of a sensory expert to oversee the sensorimotor activities that is to be engaged in during the school day. For example, a brushing protocol is typically administered under the oversight of an , as the DOE‘s own witness, the of the proposed classroom, testified to. Tr. p. 630:17-24; 631:2-6. See also Tr. p. 1230. The , Ms. does not have experience in carrying out a brushing protocol herself. Ms. ‘ exposure to a brushing protocol is limited to her observing an carrying it out, one time. Tr. p. 631:2-6. A brushing protocol is administered through , but also involves classroom education. Tr. p. 1231. Classroom need to be trained by an to administer the brushing protocol effectively, as per the student‘s individual needs. Tr. p. 1231.

The parents point out that the assigned (Witness ) had no experience with either music or sound . Tr. p. 631. ―Ms. was unsure whether a listening could be implemented in her classroom. Id. A listening is a sensory protocol. Tr. p. 1235. It helps in processing body awareness, which is one of the goals listed on page 6.3 of ‘s IEP. Tr. p. 12:35 A listening also helps with fine and gross motor abilities as well as transitioning

Hearing Officer‘s between activities. Id. Ms. would not be able to recognize when exhibits a need for the protocol in the classroom. Such recognition would fall under the expertise of a , which Ms. ‘ school lacks. Tr. p. 1236.‖ The parent focuses on the needs and undisputed manifested by the student pointing out that the lack of an assigned to the assigned school represents a failure of FAPE which cannot be remedied by an RSA. It is represented that the student‘s needs are not mild slight nor moderate but in fact are substantial. ― current at the School, , testified regarding the importance of taking place on-site at the school. Tr. p. 1271. Through her , maintains her and her state of and awareness throughout the school day, not only during the one-to-one sessions. Tr. p. 1271:18-24. Mr. is effective in assisting in her ability to attend to academic activity throughout the day. Tr. p. 1271:25; 1272:1-3.‖ Exhibit IHO 4.

Lastly, the parent challenges the qualifications of the assigned classroom . “ , the head of the recommended class for at @ is an uncertified education . Tr. p. 613; 762. Ms. is only given permission to teach through an internship certificate issued by . Tr. p. 614. She has no prior teaching experience before working at @ . Tr. p. 615. Her prior experience in education comes from her work as a . Tr. p. 614-615.

Federal law requires that all special education be ―highly qualified.‖ C.F.R. § 300.18; DOE Ex. 30-1. ―Highly qualified‖ means that the has obtained full State certification as a or passed the State licensing examination, and hold a license to teach in such State. Id. Ms. has none of the above. In fact, she admits being ―new‖ to the method. Tr. p. 619. Ms. testified that she learned about the method, not through classroom experience, but through her graduate school courses, professional development, and information she found online. Tr. p. 619.” Exhibit IHO 4.

THE NYCDOE CASE

“The DOE held three IEP meetings for the student prior to the start of the 2010- 2011 school year to adequately address the student‘s academic needs, socio-emotional

Hearing Officer‘s needs, assistive technology needs, related service needs, and transportation needs. Each IEP meeting was duly constituted. All the attendants at the meetings participated. The placement selected by the DOE for the student was in the student‘s district and it was an appropriate setting for the student. She was placed with functionally similar students within a thirty-six (36) month age range. She would have received all the academic supports and related service she was mandated to receive. The school staff would have worked on the goals in her IEP and the student could have made meaningful progress towards meeting those goals.

―(The student) was recommended to attend a Education (― ‖) in a class in a school with a ratio of ( students, education , and classroom ), along with the related services of ( ‖) in the ratio of 3x30:1 (three sessions per week, for thirty minutes per session, in a group of one); (― ‖) in the ratio of 2:30:1 (two sessions per week, for thirty minutes per session, in a group of one); and in the ratios of 3:30:1 (three sessions per week, for thirty minutes per session, in a group of one) and 1:30:3 (one session per week, for thirty minutes per session, in a group of three) as per IEP Meetings that were conducted on the following three dates: January 26, 2010, March 2, 2010, and April 15, 2010. DOE‘s Ex. 4, 5, 10 and 16; Tr. 106, 370. On June 1, 2010, the CSE provided ‘s Parents with a Final Notice of Recommendation (―FNR‖), which stated that the CSE would be recommending placement at P. 352 at I. 201 located at 730 Bryant Avenue in Bronx, New York, for the 2010-2011 school year. DOE Ex. 2.‖

The NYCDOE at the outset attempts to disqualify the School due to its ‗for profit‘ status and seeks a ruling that the School is not an elementary school within the meaning of the statute. “Thus, as , a for-profit business, does not meet the definition of an elementary school or secondary school under the IDEA or its implementing regulations, the Parents are precluded from obtaining reimbursement for tuition at the school. We ask this be recognized a threshold issue. Where the DOE has failed to provide a student with a FAPE, the parents should be entitled to choose an appropriate nonprofit school. For-profit schools, such as , should not be available Hearing Officer‘s to the parents for consideration due to the clear statutory intent of the 1997 amendments.” Exhibit IHO 3.

The NYCDOE additionally requests that this matter be dismissed under a theory that by not raising any objection at the CSE meetings the parents have forfeited all rights to raise its claims at an impartial hearing. “Parents must raise issues of contention at the IEP meeting or risk dismissal of their claim for failure to exhaust administrative remedies. In the case at hand, the Parents failed to exhaust their administrative remedies regarding their issues with ‘s IEP. They failed to raise allegations concerning the appropriateness of the recommended by the CSE at the IEP meeting. Tr. 168174.

Ellensburg v. New Mexico Military Institute, 47 IDELR 153, 478 F.3rd 1262 (10th Cir. 2007) states that ―exhaustion begins at an IEP meeting.‖ Clearly, the parent in this case failed to exhaust their administrative remedies in that they did not, prior to the filing of their due process complaint, timely inform the DOE of any of the allegations made above prior to the first day of the hearing and therefore such claims are not properly before the IHO to be decided.” Exhibit IHO 3. The NYCDOE claims that the parent made/ voiced no opposition to the and placement designed and reiterated throughout all the IEP meetings in 2010 for the 2010-2011 school year.

In response to the requested accommodation requested by the parent the NYCDOE responds ―Ms. testified that at April 2010 meeting, the team discussed transportation and special education transportation accommodations were placed on the student‘s April 15, 2010 IEP – the final IEP for the 2010-2011 school year. DOE Ex. 4; Tr. 179-183, 192-197, 385, 398-412.” Exhibit IHO 3.

Regarding the placement complained of by the parent the NYCDOE takes the position that the parents have no role to play in placement.

DISCUSSION

At the outset the fundamental purpose of the IDEA is to provide a scheme of regulation to assure that children who are handicapped receive a free and appropriate public education. In that regard specific procedures are set forth in the IDEA to provide Hearing Officer‘s parents with an opportunity to Demand an Impartial Hearing to review and determine the propriety of the educational plan set forth for the child by the local educational agency (LEA). The local Committee on Special Education is responsible for the creation of a handicapped student‘s individual education . The foundation of an Impartial Hearing is the review of competent evidence and the taking of sworn testimony as to the facts and circumstances of the formation of the student‘s individual educational (IEP). The search for the truth under oath is one of the primary obligations of the Impartial Hearing process. One of the inherent difficulties of the process is the taking of sworn testimony by telephone. This process lends itself to significant opportunities to miscomprehend misjudge and confuse the trier of fact (and the participants) as to the forthrightness accuracy and adherence to the obligation to tell the truth when witnesses testify outside of the physical observation of the parties. It is difficult to evaluate the demeanor of a witness over the telephone. In this matter several sharp contradictions are to be noted concerning both the evidence submitted and the testimony of witnesses.

Adding to the difficulties in this matter was the failure of the NYCDOE to timely harness NYCDOE documents and timely submit them into evidence such that they would be available for the examination of the witnesses to which the documents pertain. I specifically refer to IHO 1 and 2.

The NYCDOE was sworn and initially inquired of as to which documents she had in her possession. Tr. p. 71-73. The witness indicated she had both the NYCDOE evidentiary submission package (23 exhibits) and the Parent‘s (16 exhibits). Upon further inquiry she declared she possessed no other documents. The testimony proceeded and the witness (in response to a question) began to consult a document that she had declared not to possess. Tr. p.78-87.

Preceding this testimony both parties had spent extensive time and diligence submitting objecting and qualifying their respective evidentiary submissions. Tr. p.8-51. The ‗missing‘ document (not submitted into evidence by the NYCDOE) that witness improperly possessed was the foundational IEP (dated January 26, 2010) that designed the student‘s and that the NYCDOE had claimed not to have been able to locate it Hearing Officer‘s in a timely fashion to comply with the 5-day evidentiary rule. Exhibit IHO 1; Tr. p. 161. As the testimony of Witness progressed it became increasingly clear to me that the witness exhibited a genuine bias concerning the School such that in concluding her testimony as to her witnessing/evaluating academic instruction at the School she replied ―once‖ out of 100 hours observing many students at the institution. Tr. p. 442-443. Later testimony offered by Witness indicated the class to which the student was programmed received no formal math or reading instruction (similar to that at the School). Reviewing the testimony of this witness in its totality I am not completely confident of its veracity spontaneity and accuracy such that I afford the testimony little weight. Tr. p.71-485.

During these extensive hearings it became clear to the record that the NYCDOE had upon settlement of a prior impartial hearing funded the student at the School beginning in January 2009. Previously the student had been instructed and was to be transitioning to a 6:2:1 (Exhibit 22). The following month (February 2009) a evaluation was completed and the student was found to be cognitively unavailable at the time in February 2009 (Exhibit 23). The parent filed for a medical transportation accommodation in October 2009. A classroom observation was performed in late November 2009 in preparation for the annual CSE meeting held in Manhattan (the location of the School) that produced the challenged IEP of January 2010. Exhibit IHO 1. On March 2, 2010 the CSE in the (responding to the Parent request for medical accommodation) met and issued /amended the January 26, 2010 IEP (Exhibit 10) to include limited time travel (commencing March 10, 2010) pursuant to parental/medical accommodation request.

Immediately thereafter the CSE in conducted another CSE meeting (April 15, 2010) and amended the March 2, 2010 IEP (itself an amendment to the January 26, 2010 IEP) obliterating the limited time travel mandated by the March 2, 2010 IEP scheduled to commence March 10, 2010 (therefore not an actual change in the IEP but in fact solely a transportation accommodation medically requested) replacing the limited time travel adjustment with a mandate for an air conditioned mini bus and adding the Hearing Officer‘s assistive technology device. The NYCDOE obtained a Physician (Exhibit 11) report sufficient to deny the request for limited travel time converting same to air conditioned mini-van. Tr. p.167-180. Parent complained that the child is traveling 1 hour and 45 minutes one way. It is further reported that parent recently received notice that the student must now be picked up at 6:30 am. Interesting to observe that the April 15, 2010 IEP was to commence July 1, 2010 however the ‗reduced‘ travel time accommodation was to commence immediately.

The NYCDOE postulates that the CSE deferred placement to District (notating that the case was a ‗Carter‘ case) after the January 26, 2010 CSE meeting (Exhibit 13) was consented to by the parents. There is an identical re-submission after the April 15, 2010 IEP meeting (Exhibit 3) and clearly throughout each meeting the NYCDOE was on notice that the parent desired a non-public school placement at the School. It is gleaned that a non-public placement was never considered as there is no record of a referral to the CBST (central based support team) for any placement action. Eventually (4 months subsequent to the annual IEP meeting January 26, 2010) the student was assigned to class at @ on June 1, 2010 to commence July 2010. Exhibit 2.

The NYCDOE Special Education next testified that the School used a methodology distinctly different from that of the NYCDOE to educate similar student with moderate to severe handicaps similar to this student. Tr. p. 553-555. She also indicated she did not have an opportunity to observe the student using the assistive technology device. It is important to note the witness‘ observation occurred in October 2010 long after the IEPs in question in this matter. While some of her testimony was germane to the issues before me, her observation was outside these matters and post these events. Tr. p. 489-457.

The next witness was the NYCDOE at @ . This witness‘ testimony was split into two sections as time constraints demanded. Her testimony was in two parts. For the convenience of the sequence I will address the subsequent witness‘ testimony first.

Hearing Officer‘s The NYCDOE Classroom Witness testified that she was provisionally certified as a special education on September 1, 2010 and commenced her duties at @ on September 7, 2010. She was not the classroom at @ in July 2010 when this student‘s twelve-month commenced and the parent inspected the placement. Her provisional certification is notated as effective from September 1, 2010 until August 31, 2012 and is based upon her internship through (Exhibit 26). There was no testimony offered as to what type if any supervision she received in connection with her internship position for maintenance of her certification although ongoing in service training was implemented by the NYCDOE. The previous two years she performed as an uncertified classroom - through placement. Her current assigned classroom - is reported to hold a certification as a classroom (there are two additional adults in the classroom serving as - , certification status unknown). Ms. testified specifically (1) that she did not instruct her students in any set reading or math (the students are programmed for );

(2) that there was no assigned to the school (the students so proscribed were issued RSAs{related services agreements} enabling parents to obtain services from the ) however she did not know how many if any of her students were successfully receiving ; and (3) that she was unfamiliar with listening as a . It is clear that was not available in the classroom or in any class throughout the school and confirmed the veracity of parent‘s complaint that when she visited the placement she was informed about the lack of appropriate at the site as well confirming the representations of Exhibits H and I as accurate and relevant.

Witness additionally testified as to (4) all of her students receive (during different times some pull-out and some push-in); (5) the presence of a sensory gym with equipment; (6) she explained her cursory knowledge and implementation with the methodology; (7) the availability of parent training and assistance to parents from the parent coordinator at @ ; (8) conducting weekly group cooking exercises (jointly with a push-in ) permitting students introduction to new

Hearing Officer‘s foods (9) with training she was confident she could implement a brushing protocol. Tr. p.611-672. Essentially this placement is effectively a 6:1:4 classroom.

The testified that in her opinion the would not be inappropriate but that the independent workstation segment might not be appropriate for this student. Tr. p. 689-690. Her further testimony indicated that all students mandated to receive (20 total) were receiving their mandated services and that any students programmed for had all received RSA (confirming prior testimony of Special Education and substantiating claims of the parent). The witness indicated that she was unaware if any of the students were receiving their services (Tr. p.717). Witness went on to explain the various services and parent training providers that are available in addition to describing how @several buildings is organized in a configuration totaling approximately students that the combined staff service providers and administrators are responsible for all. Tr. p. 708-715. This school (@ ) has an that is available one day per week.

Witness indicated that each of the adults in the classroom (specifically designated included) is tasked to work with every child in the classroom notwithstanding their 1:1 specific assignment. Tr. p. 732-734.

Evidentiary submissions 24, 25, 26, and 27 submitted on the fifth day of testimony became a further challenge to the concept of a fair hearing to be afforded to the parties. NYCDOE Special Education Witness testified that she was not permanently certified in September 2010 when she was appointed head of class at @ . Exhibit 26 further confirms the accuracy of her testimony that she possessed a two-year provisional intern license issued under the auspices of . Exhibit 24 is the Organization Sheet for @ for the summer session 2010. It identifies the classroom of as with shown as the classroom for class . Exhibit 25 is a NYSED Office of Teaching Initiatives document purporting to validate that has a permanent teaching license K-6. Exhibit 27 is a note written by the of @ purporting to ‗testify‘ that in fact was the of contrary to the documentary evidence put forth by the NYCDOE (Exhibit Hearing Officer‘s

24). This document is not an affidavit (in form or substance and clearly prepared for litigation) neither the author nor the subject ( ) were declared to be unavailable nor were either brought forth to testify and present for cross-examination. This effort appears a desperate attempt to prove that the assignment of the student to class was a proper valid placement (consistent with FAPE) and that the was a properly certified licensed and or a highly qualified meeting the federal mandate; all of which is contrary to the facts presented. I afford Exhibits 24 and 27 to be of little (if any) probative value and unreliable as to the veracity required from substantiating evidence and documentation. As to Exhibits 25 and 26 I find them reliable in all respects and uncontroverted by the testimony. Tr. p.906- 924.

The for the School testified as to the type of and researched methodology designed and implemented to provide educational services to the student. Witness (highly credentialed and NYSED certified in several categories) testified that the ) and its appropriateness as applied to the severe handicaps exhibited by the student. Tr. p.943-

975. The testimony described the frequent detailed scheduled contact and weekly interactions between the teaching and the related service attending to the student‘s education. Tr. p. 981-988. Prior testimony (of NYCDOE witnesses) acknowledged that the information used to create each NYCDOE IEP during 2010 was formulated and designed directly from the Interdisciplinary Report of Progress authored by the school personnel (Exhibit C; Exhibit IHO 1; Exhibit F; and Exhibit G). Said Report of Progress is highly detailed specific and comprehensive as to the child‘s developmental levels, conditions and the curriculum employed to deliver educational services. It details with specificity the and goals tasks and objectives to be employed educating the student. Witness further testified that the related services provided at the School used the NYCDOE IEP as a guide but services were determined by the individual providers according to their own clinical determinations. Tr. p. 987-988. Further testimony revealed the student adjusting well Hearing Officer‘s resulting in her episodes of decreasing both in duration and frequency. Tr. p. 1006.

Witness catalogued the credentials certifications and educational backgrounds of each of her (10 NYS certified; 1 certified awaiting NYS action; 1 NYS certified in General Education; 2 uncertified pursuing Masters in Special Education); 43 (42 non-certified each with a Bachelor degree; 1 pursuing a Bachelor degree); all mandated - are provided by the NYCDOE. school also employs 7 7 and (Tr. p. 1103). At the School the student‘s assigned is the certified having a compliment of and 1 - (assigned as a 1:1 by the NYCDOE) teaching students. Effectively a with

1. Testimony thereafter explained in depth the methodology the weekly assessment notes and the standardized testing instruments used periodically to measure the students performance. Tr. p. 1030-1053. The witness the offered a clear description of this student‘s learning and the methodology the School employed to address her several separate handicapping conditions and explained how and what the educational accomplishments were. Tr. p. 1120-1179.

FINDING OF FACTS AND CONCLUSIONS OF LAW

At the outset I address the issue of the School being barred from receiving IDEA funds for the purpose of educating students. Exhibit IHO 3.

―Returning to the arguments in the instant case, the district argues that the impartial hearing officer erred in determining that the IDEA and its implementing regulations do not bar the parent from seeking tuition reimbursement at a for-profit institution like the School (IHO Decision at p. 11). I disagree with the district's contention and note that the district has previously asserted this same legal argument that has been rejected in prior State Review Officer decisions, which I decline to reconsider (see Application of a Student with a Disability, Appeal No. 09-085; Application of a Student with a Disability, Appeal No. 09-080; see also A.D. v. Bd. of Educ., 690 F.

Supp. 2d 193, 215 n.16 [S.D.N.Y. 2010]). The district offers no persuasive argument for departing from the reasoning set forth in Application of a Student with a Disability, Appeal No. 09-085 or

Application of a Student with a Disability, Appeal No. 09-080.‖

Application for review of a determination of a hearing officer Hearing Officer‘s relating to the provision of educational services to a student with a disability SRO Appeal No. 10-104.

The NYCDOE has failed to demonstrate it provided a FAPE to this student by a preponderance of the evidence in that the class assignment at @ did not meet the standard set forth in 34 CFR 300.18 b(ii) of a highly qualified education . Further the absence of an at the site able to assist and train staff on how attend the regulation of this student during the school day is a failure of FAPE (for this individual student) resulting from a failure to place the student in its public school able to execute the IEP as proscribed. The NYCDOE argues that the provision of an RSA for satisfies the student need and the NYCDOE‘s responsibility to provide the proscribed related service. The promised provision of an RSA for in this instance fails as a substitute to accomplish the goal intended by the IEP (service) during the school day; an RSA in this instance is not sufficient support service for this child. Exhibit 5-4,5,7, and

8. The NYCDOE was clearly noticed by the Interdisciplinary Report of Progress (Exhibit

C) used in the creation of the IEP of January 26, 2010 of this student‘s specific need and the context for implementation. Exhibit C-4.

Similarly the NYCDOE was on early notice that the parents requested the School as a non-public school placement as of January 26, 2010 and cannot now be heard to complain that the written 10 day notice of September 20, 2010 was untimely. Exhibit16. Both of these two failings separately and individually each constitute a failure of Prong 1 by the NYCDOE of the Burlington/Carter analysis.

The NYCDOE attempts to find fault with the parents for not advising the CSE team wherein or how the IEP failed to provide a FAPE during any of the IEP meetings (herein reviewed) however it was not until after June 1, 2010 that any possibility existed for parents to discover/identify either the specific failure of qualifications of the classroom or the total absence/failure of any services (during the school day) at the placement selected solely at the discretion of the NYCDOE. The NYCDOE position on this issue is untenable and without merit. Hearing Officer‘s

Throughout this matter the parents have attended each and every IEP meeting and issued every consent form requested of them by the NYCDOE. There is no allegation that parents failed to produce any document or failed in the presentation of any requested information. They offered no objections to the goals or student functioning assessments nor the related services proscribed when they were drafted/assimilated from School document into the student‘s IEP. Tr. p. 117-122. The closing brief of the NYCDOE acknowledges this fact; ―The IEP Team relied on this report during the IEP meeting. Tr. p. 105.‖ Exhibit IHO 3-7. The parents clearly identified their intention to have the student return to the School. They raised no objection to the twice deferred placement actions of the NYCDOE. I find the parents have met their responsibility to cooperate with the NYCDOE CSE and thereby met their Prong 3 equity obligations according to the Burlington/Carter analysis.

As for the measure of evidence determining whether or not the parents have sustained their Prong 2 burden of demonstrating that their alternative educational plan with related support services are reasonably calculated to provide an educational benefit to the student and which will avoid and provides the opportunity for educational advancement commensurate with those goals and standards proscribed by the student‘s IEP I find in the affirmative on behalf of the parents by a preponderance of the evidence..

“2. The School Was An Appropriate Placement for D.A.

Plaintiffs bear the burden of demonstrating that the School was an appropriate placement for ., 459 F.3d at 364. Although a unilateral parental placement need not satisfy IDEA‘s definition of a FAPE, see id., and need not meet state education standards or requirements, see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 (1993), ―the same considerations and criteria that apply in determining whether the School

District‘s placement is appropriate should be considered in determining the appropriateness of the parents‘ placement.‖ ., 459 F.3d at 364. In short, ―the issue turns on whether a placement – public or private – is ‗reasonably calculated to enable the child to receive educational benefits.‘‖ Id. (quoting Rowley, 458 U.S. 176, 207 (1982)).‖ Mr. and Mrs A, o/b/o D.A. v. New

York City Dept. of Education et.al., 09 Civ. 05097 (PGG) (S.D.N.Y.

dated 2/1/11).

Hearing Officer‘s

Here it is clear and agreed between the parties that the educational and criteria were substantially developed from the School document then incorporated by the NYCDOE and concretized on the IEP. However I determine the then failed to be properly implemented by the NYCDOE placement/assignment of the student to at @ . It is my determination from a preponderance of the evidence that this placement caused a deprivation of educational benefits sufficient to deny a FAPE to this student.

―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]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.

2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19,

2008]).

The IDEA directs that, in general, an 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 Hearing Officer‘s provide "an IEP that is 'likely to produce progress, not ,' 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 must also be provided in the 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]).‖ Application of a Child with a Disability, SRO Appeal

No. 07-10.

I hereby Order the NYCDOE pay prospectively the tuition of the School in the amount of $ ( ) as tuition for the 2010-2011 year to the School and to reimburse parents $ for partial tuition previously paid. Exhibit L. Said payments to be made no later than the 36th day following the date of this decision.

The remaining issue is the challenge to the changed of the accommodation regarding . As aforementioned the parents requested limited time and their made the appropriate medical request as of October 2009. It was not acted upon until March 2, 2010 at which time it was granted by the CSE (the parent‘s CSE district). The CSE (the location of the school) reconvened in April and changed the granted request to an - . Taking the representations as true that the current travel time of hour and 45 minutes and understanding rush hour midtown traffic patterns I can agree that mandating a 45 minute maximum travel window is difficult to accomplish but simultaneously recognize the concern for the child due to the length of the bus ride I find that the reversal in IEP of April 15, 2010 was unwarranted and unilaterally imposed without the benefit of parental comment or participation which denied parent the opportunity to be heard therefore I hereby Order that the accommodation granted on the March 2, 2010 IEP be re-instated thru and including June 2011 to commence Hearing Officer‘s within ten days of the date of this decision. Dated: April 20, 2011

Corrected Date: May 19, 2011 (Corrections made to Evidence List)

___________________________

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(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. Hearing Officer‘s

DOCUMENTATION ENTERED INTO RECORD

1. Due Process Response 10/22/10 3 pages

2. FNR 6/1/10 1page

3. Dist. Referral 4/15/10 1 page

4. IEP meeting Minutes 4/15/10 1 page

5. IEP 2010-2011 4/15/10 15 pages

6. IEP meeting notice 4/7/10 1 page

7. 3/23/10 9 pages

8. IEP meeting notice 3/17/10 1 page

9. Req. for 3/9/10 5 pages

10. IEP 2010-2011 3/2/10 14 pages

11. Review 2/12/10 1 page

12. Notice of CSE Review 1/29/10 1 page

13. Dist Referral 1/26/10 1 page

14. Notice of Deferred Placement 1/26/10 1 page

15. 12 month Consent form 1/26/10 1 page

16. IEP meeting minutes 1/26/10 1 page

17. Notice of CSE Review 1/17/10 1 page

18. School Report of Progress 12/09 11 pages

19. Classroom Observation 11/24/09 3 pages

20. Consent for Observation 11/1/09 1 page

21. Consent for Observation 9/29/09 1 page

22. Social History 2/7/09 2 pages

23. Report 2/7/09 4 pages

24. Summer 2010 - schedule undated 6 pages

25. Certification undated 2 pages

26. Provisional Cert undated 5 pages

27. Letter fro Ms. 1/20/11 1 page

28. 20 USC sec 1401 6 pages

29. 34 CFR 300.18 2 pages

30. 34 CFR 300.18 Fed Register Commentary 10 pages

A. Request for Impartial Hearing 10/21/10 5 pages

B. 10-day Notice 9/20/10 4 pages

C. School Report of Progress 12/09 11 pages

D. -social 1/16/10 5 pages

E. Request/ Accommodations 10/2/09 1 page

Hearing Officer‘s

F. IEP 2010-2011 3/2/10 14 pages

G. IEP 2010-2011 4/15/10 15 pages

H. Delivery Report 5/20/09 1 page

I. Delivery Report 5/28/10 1/page

J. Classroom Observation 11/24/09 3 pages

K. School Progress Report 5/10 13 pages

L. Enrollment Contract 6/30/10 5 pages

M. Classroom Observation 10/21/10 2 pages

N. 11/30/08 8 pages

O. Letter from 4/16/10 2 page

P. Photos of Student undated 2 pages

Q. School Report 12/10 12 pages

R. Resume undated 1 page

S. 20 USC 1412 (a) (10) (c) 2 pages

T. Information 1/10/11 2 pages

IHO1 IEP 2010-2011 1/26/10 14 pages

IHO2 Handwritten Notes from IEP meeting 1/26/10 1 page

IHO3 NYCDOE Closing Brief w/ exhibits 4/8/11 23 pages

IHO4 Parents Closing Brief w/ transcript 4/8/11 28 pages

3/9/11