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: February 10, 2011

March 1, 2011

March 23, 2011

April 13, 2011

May 26, 2011

July 14, 2011 Actual Record Close Date: September 23, 2011 Hearing Officer: Lynn Botwinik Almeleh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2011

Attorney — Student

Attorney — Student

Parents

Attorney, Department of Education Attorney — District

Teacher, Special Education Teacher (via telephone) — District

School Psychologist (via telephone) — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 1, 2011

Attorney — Student

Attorney — Student

Parents

Attorney, Department of Education Attorney — DOE

School Psychologist (via telephone) — DOE

Assistant Principal (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 23, 2011

Attorney — Student

Parents

Placement Officer — Student

School — Student

Attorney — DOE

Teacher, Special Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 13, 2011

Attorney — Student

Parents

Placement Officer — Student

Pathologist, School (via telephone) — Student

School (via telephone) — Student

Attorney — DOE

Teacher, Special Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 26, 2011

Attorney — Student

Attorney — Student

Parents

Placement Officer (via telephone) — Student

Attorney — DOE

Teacher, Special Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 14, 2011

Attorney — Student

Parents

Parents

Head Teacher, School (via telephone) — Student

Executive Director, School (via telephone) — Student

Attorney — DOE

Teacher, Special Education Teacher (via telephone) — DOE

Procedural Context — DOE

On November 10, 2010, I was appointed to hear the matter of . versus the New York City Department of Education pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). On February 10, 2011; March 1, 2011; March 23, 2001; April 13, 2011; May 26, 2011 and July 14, 2011, hearings on the substantive merits were conducted. On this last date, the parties were offered an opportunity to submit closing Memoranda of Law and as a result thereof, the compliance date for issuing a decision in the above-referenced matter was duly extended to September 23, 2011.

Specifically, the Parent asserts that the School District’s educational placement as memorialized by the IEP of May 8, 2009 and May 26, 2009 stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for her child. Tr. at 13; Exh. 10. As a result thereof, the Parent is seeking tuition reimbursement for the 2009-2010 school year in furtherance of a unilateral transfer to the School (hereinafter “ ”), a school setting.^{[1] [2]}

As a corollary, the Parent has defended the educational program implemented by and relies upon the rules and principles set forth in Florence County School District Four

v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. A list of persons in attendance and of evidence is appended hereto.

The School District’s Case

is employed by the Department of Education as a school psychologist and, in this capacity, testified as lead witness. Ms. served as both District Representative and school psychologist in the formulation of S.B.’s IEP, a document developed over the course of two meetings in May 2009. Ms. specifically testified that personnel had not been able to participate continuously in these proceedings, despite the Department of Education’s request that they do so. As a result, their personnel participated sequentially and separately, an arrangement agreeable to the Parent.

As a result of these proceedings, the CSE recommended extended year services in a special class enhanced by a ratio in a specialized school. Tr. at 58, 61. In addition, a number of related services were offered, including assignment of a full-time paraprofessional, (5 x 60 minutes; 1:1) and (5 x 45 minutes; 1:1). Exh.

10. Ms. testified that the CSE had generated these recommendations following consideration of various evaluations and reports submitted by both the Parent and the Department of Education. Exhs. 3-8. Although a Department of Education Observation conducted by was additionally available, Ms. could not recall discussing it although the report had been distributed earlier to the CSE’s members. Tr. at 79-81; Exh. 9. She did recall, however, that teacher “ ”3 had furnished the CSE with ’s current levels of performance as reflected within the IEP. Exh. 10 at 5.

On cross-examination, the witness noted that she had never conducted a assessment of the child and could not recall whether she had observed him prior to the CSE proceedings. Tr. at 131-132. Nonetheless, she described ’s academic profile as it was reflected within the “academic performance and learning characteristics” section of the student’s IEP. She noted that the child was words at the level while comprehension fell at late to early grade. Similarly, .’s math skills were consistent with early grade performance. Although the student had made progress in , . continued to demonstrate , deficits evidenced by inadequate skills. Given .’s management needs, Ms. testified that . required a highly structured environment with clear and consistent expectations. She noted, furthermore, that the child required along with , and opportunities for continuous positive reinforcement. In furtherance thereof, the witness opined that the Department of Education recommendation would serve .’s needs as classroom instruction would be consistently offered by the same special educator interfacing daily with .’s related service providers. Tr. at 82-84.

Beyond this, Ms. testified that the student would participate in group learning experiences as . had begun to function better within these settings. Tr. at 109.

Ms. further described the various interfering behaviors which impacted upon the student’s performance. She noted that .’s various medical issues could additionally the student’s interfering behaviors. Based upon statements offered at the CSE meeting and behaviors described in ’s IEP, Ms. prepared the Department of Education’s Behavior Intervention Plan during the CSE proceedings. She based this upon a compilation of data offered by in the form of a “functional analysis” which she acknowledged was not a “ assessment.” Tr. at 99. Ms noted that she prepared this while notes during the CSE proceedings, reviewing documents, entering present levels of performance and other information onto the IEP document, chairing the meeting and synthesizing or “taking data” on intensity, frequency and duration of interfering behaviors as reported by various personnel both during and^[3] prior to the CSE meeting. In essence, Ms. extracted the relevant material presented by and, during the proceedings, prepared a plan based upon the one utilized by . Tr. at

97-105,145-146,154, 215. She did not consider this multi-tasking problematic or difficult.

Adopting ’s strategies, Ms. incorporated , , and breaks into the text of the Department of Education’s

. Exh. 10 at 24. She noted that, during these times, the child’s paraprofessional could assist . by implementing the various management strategies articulated within the document. Ms. was, however, unaware of the requisite qualifications for behavior management paraprofessionals, but testified that would train these individuals. 4 Tr.

at 168, 223-225. In fact, Ms. testified that all of the Department of Education’s

IEP goals had largely been extracted from the 2008-2009 IEP. Tr. at 203; Exh. 5. The goals were then re-read to personnel for final approval. Tr. at 209-210. Although the IEP did not have specific provisions for a transition plan from to the Department of Education’s proposed placement, Ms. opined that the adoption of ’s goals would, in any case, provide the level of continuity reasonably necessary to facilitate S.B.’s transition to a new program and site.

Ultimately, Ms. testified that the CSE had essentially created the Department of Education’s IEP from that promulgated by , developing their goals for the upcoming year as personnel presented their assessments and the Parent contributed to the discussion. Tr. at 111. Thus, a goal for counting and developed into a goal requested by the Parent. Tr. at 112. Ms. further noted that the IEP did not provide any method of measurement as she believed the professionals charged with the IEP’s implementation would be better equipped for determining quantification methodology. Tr. at 118. Ultimately, the witness testified that the Parent had not objected to either the Department of Education’s goals or its recommendations for . Tr. at 119-120. Similarly, the witness noted that grade levels and methodology would not be reflected in an IEP’s goals so that instructional personnel could tailor their approach more specifically to a student’s needs. Tr. at 158.

In formulating its recommendations, Ms. noted that both settings were considered, although the CSE never addressed the viability of the child’s current placement of two years, a placement originally secured by the . As the CSE was developing a new IEP, Ms. indicated it was unnecessary to discuss the placement. Indeed, Ms. denied that this recommendation had even been discontinued. The record follows:

Ms. The recommendation was not discontinued. We were creating a new IEP and everything is back on the table, so the question is what is appropriate at this time, and these were the options that we were considering at this time.

Ms. : So you did not consider a continuation of the previous recommendation made by the CSE?

Ms. : I don’t look at it as a continuation or a termination, I look at it as did we consider it, and we didn’t consider it. Tr. at 169.

In contrast, the witness later stated on re-direct that “the team had not recommended ” as a recommendation would be considered excessively restrictive. Tr.

at 199. As a result, the CSE never considered the child’s current placement nor did the witness recall any discussions regarding the CSE’s prior recommendation at .

The witness further testified that she viewed her note-taking during the CSE proceedings as a personal effort, separate and apart from taking CSE minutes. Although the pre-printed form upon which she took her notes leaves space for the Parent’s signature, she nevertheless maintained that this document reflected personal entries which existed for her own benefit. Consequently, she did not share these notes with the Parent or anyone from . In contrast, Ms. ’s Co-Chairperson from the Department of Education had, in fact, been invited to review these notes to determine their accuracy, the witness only acknowledged their status as “minutes” when confronted with the possibility that no minutes had been taken of the CSE’s proceedings. Tr. at 190. In fact, Ms.

indicated that she routinely shares her personal note-taking activities with who similarly takes detailed notes on academic goals, speech and occupational therapy. Tr. at 193-195.

Ms. then testified that she was unaware of any requirement that her personal “notes” be exchanged with the Parents, adding that the Parent had not actually requested a copy nor had the witness specifically offered them during the proceedings. Tr. at 193-194.

is employed by the Department of Education as an at at . As such, Ms. was aware that a placement in class had been offered in July 2009.

Tr. at 241. The witness initially testified that Mr. ’s students reflected a functional academic range from to grade , including two relying upon a system of communication. Tr. at 243, 268. The witness acknowledged that the student’s Final Notice of Recommendation did not refer to Mr. s classroom, testifying that there were 11 classes at which reflected ratio. Exh. 12. Nevertheless, she was confident that . would have been assigned to Mr. as there had been a seat available in his to

5

grade classroom at that time. Tr. at 248. The witness explained that the placement decision had been made by the placement office, a fact she recently learned from Tr.

at 249.

Describing Mr. s class, Ms. noted that . would have been more than and 2 months older than the youngest child in a class whose students functioned academically referring to chronological age only at a grade level. Referencing the Parent’s observation of the proposed school and placement, the witness indicated that personnel would generally not disclose the child’s classroom assignment as parents toured the premises. As a result, the Parent would be shown a number of classrooms with little idea as to which class would be specifically designated for their child. Tr. at 251-252.

Although Ms. admitted that she had not been involved with .’s placement, the witness had recently prepared a description of the students in Mr. classroom.6 She did not know whether any children had been assigned to individual paraprofessionals nor was she familiar with the nature and scope of their training.

additionally testified on behalf of the Department of Education. Mr. is assigned to a classroom at at as a special education teacher. Due to ongoing construction at at , Mr. class met at , a neighboring school, during the summer of 2009. Although this placement was not identified on the Final Notice of Recommendation, Mr. testified that, in any case, would have been assigned to his class during the 2009 summer session.

Tr. at 443, 449-450.

The witness has had prior training in , but utilizes at . In July 2009, six children were assigned to his classroom. Tr. at 292, 394. As one student was unavailable for the summer, a different student was placed in this seat the following day. Tr. at 354-355. He noted that related services were available to his students and that he had a wide range of professional resources, including an Impact Team, with whom he could collaborate as needed. In particular, Mr. referenced the use of (hereinafter “ ”), a cooperative effort between and classroom teachers designed to facilitate spontaneous communications. Tr.

at 287, 340.

The witness briefly described a class in which functional ranges in math ranged from to , noting that some students were capable of performing basic calculations while others had begun to assign quantitative meaning to numbers. Similarly, reading and writing skills fell within grade. While one student was a fluent reader, others were just learning to identify letters and sounds. Tr. at 291. Given the range of abilities based upon her review of student IEPs.

within his classroom, Mr. testified that he utilized differentiated instruction within every lesson in order to address the individual skill levels of his students.

In furtherance thereof, the witness testified that he would utilize New York State curriculum at the highest level of achievement within his classroom and incorporate lessons for his students as needed. Tr. at 377-380. Similarly, utilizing leveled readers reflected the range of reading skills demonstrated within his classroom. Thus, the witness described differentiated math and reading lessons in which he would provide a ten minute introduction, modeling the strategy or skill, followed by approximately 30 minutes of individual practice and a five minute summary. In this manner, individualized assignments might, for example, include practice with , Recipe for instruction.

He similarly provided detailed descriptions of how .’s individualized goals and objectives could be successfully addressed. Tr. at 319-339.

The witness admitted that he was not familiar with . but had reviewed his IEP.

Tr. at 293. Nonetheless, had the student attended his class, the witness would have assessed him at the beginning of the school year, utilizing such instruments as the , the

Quantitative Reading Inventory and the Basic Assessment for Comprehension as well as a and the Behavior Assessment Scale.

Mr. recalled . as a student whose and skills were below grade level and who demonstrated both expressive and recessive . In furtherance thereof, he believed the student’s academic, social and learning profile were consistent with the other students assigned to his classroom in July 2009. Likewise, Mr. noted that descriptions of .’s performance in terms of skills, , and were similar to another student in his classroom who had been assigned to a behavior management paraprofessional. 7 Tr. at 312. With the assistance of a , and , the other student’s behaviors had been extinguished and Mr. believed ’s could also be successfully addressed within his classroom. Nevertheless, the witness acknowledged that the paraprofessional continued his assignment with this student for the entire year. Tr. at

361.

The witness was unfamiliar with the nature of the paraprofessional’s training. Tr. at 362-365.

The witness further noted that . had a range of academic management needs such as verbal and visual prompting, positive reinforcement, clear structure and routine and practical applications of skills. Exh. 10. Nevertheless, Mr. indicated that he did not believe in the use of prompts as these prompts were difficult to extinguish. As a result, he did not utilize these strategies. Tr. at 300. Having said this, however, Mr. noted that visual symbol “cues” relating to class schedules are posted about the room. In this manner, predictable routines may be established, facilitating transitions and minimizing student Moreover, all of his students utilized a system. Although and prompting was, in fact, utilized, the witness testified that his goal was to fade out these supports through the instructional use of modeling. Tr. at 425-427. Finally, although he relied upon methodology, Mr. testified that the use of discrete trials was not inconsistent with this technique.

The witness additionally described specific strategies within his program which were consistent with the IEP’s recommendations for frequent , systematic generalization and step by step instruction among other things. In furtherance thereof, Mr. briefly described techniques for incorporating scheduling breaks and fostering independence by teaching students to request their own breaks when needed. In terms of developing a specific generalization protocol, the witness noted that skills developed within the classroom were generalized across personnel and environments within the school building as well as within the community during weekly outings. In sum, the witness opined that, based upon his review of the ’s IEP, his classroom at was an appropriate placement for . as of July 2009. Tr. at 348-349.

On cross-examination, Mr. described the verbal abilities of his students, categorizing any student who could “ sounds and get a meaning across using ” as a child. He noted that he considered five of his students although all of them utilized a system. Tr. at 367. In this manner, even students could be prompted to utilize when challenged with difficulties. Of his five students, Mr. characterized one student’s ” while another was totally . Tr. at 367, 371, 756. Nevertheless, the unintelligible student utilized in the form of a “ ”. Mr. described a third student’s as very fluent while the remaining three students were very . None of his students had requiring daily generation of an original sentence. Tr. at 629. Later, with reference to spelling goals, Mr. noted on cross-examination that “three of my students were non-verbal so really they weren’t going to spell anything vocally.” Tr. at 628.

The witness noted that .’s sight goal for was similar to children in his class, reflecting early grade level. Tr. at 626. Likewise, four students demonstrated level skills with reading comprehension. Tr. at 627. With reference to math, Mr. observed that two of his students largely understood the concept of and shared goals similar to .’s. Tr. at 630. Two students had goals utilizing math word problems while four were working on simple numeric operations such as addition and subtraction. Tr. at 631. All of his students had individualized data-based plans, several addressing . Tr. at 636. All received although their mandates differed slightly. Tr. at 440-442. Mr. testified that one other student engaged in , but none required the regular use of therapeutic holds. Tr. at 602. Finally, Mr. discussed the individual scores obtained for some of his students. Tr. at 755-768. The Parent’s Case , Ph.D. testified on behalf of the Parent. Dr. is certified by New York State as an occupational therapist and serves as the Director of the department at the . In this capacity, Dr. has supervised, evaluated and provided direct services to ., focusing on and regulation, and skills. Exh. N. During the 2009-2010 school year, . received three to five 45 minute sessions of on a 1:1 basis. Tr. at 460. These interventions, including methodology, were developed collaboratively with the child’s teachers and other related service providers during weekly inter-disciplinary meetings. In this manner, personnel would generalize inter-disciplinary skills by incorporating goals into classroom schedules. Likewise, staff would be trained on the use of in an effort to reduce maladaptive behaviors. Tr. at 462. The witness observed that ’s facilities include a large gym in addition to a room and an area with standard gym apparatus. Referencing the use of a corner located within the classroom, the witness opined that this would be helpful only if the and the child could “ and distractions.” Tr. at 491.

Mr. described . as a child whose gross and fine motor impairments were expressed primarily through his inability to write legibly and to adequately perform many skills. In addition, . manifested deficits which were addressed through tabletop activities, such as word searches, pencil and paper “games” and puzzles. During the 2009-2010 school year . was assessed twice utilizing the . At the beginning of the school year, the witness testified that re-located to a four story building at a completely different site. Mr. testified that . regressed considerably during this transition, exhibiting resistant and behaviors along with and confusion. Notably, .’s . Tr. at 479-482, 486-490. Over the course of several months, the child adapted to his new environment with the assistance of a schedules. Nevertheless, . was only able to master approximately therapy objectives during the 2009-2010 school year. Tr. at 480-482.

additionally testified on behalf of the Parent. Mr. is employed by as a and . He has treated and evaluated . since July 2009. Exh. J. Mr. described . as a child who exhibited receptive and expressive deficits superimposed upon an . In addition, .’s was considerably delayed. Tr. at 538. Although he described the child as “ ,” .’s use of were often inaccurate. The witness noted that the student was capable of , but would generally rely on in . Within the context of therapy, Mr. testified that he frequently utilized both , particularly during game play and auditory processing drills if . were frustrated. Notwithstanding these prompts, . frequently engaged in or behaviors which interfered with his ability to remain on task. In response, the witness utilized a plan, within a strict , which was additionally implemented and reinforced by classroom personnel. Tr. at 552.

Mr. testified that although the child’s skills were significantly , did not require a system. He had, however, utilized a picture schedule in the interests of reinforcing predictability and consistency rather than facilitating the production of . Tr. at 545-546. For the most part, Mr. indicated that was provided within a model. As such, Mr. testified that he had never observed . working in the absence of a adult assigned to him and did not believe the child was capable of functioning successfully without the support of this support. Tr. at 567-568. Finally, the witness briefly described his protocol for developing ’s IEP. In furtherance thereof, Mr. indicated that session notes, progress notes and yearly assessments were utilized in the formation of .’s goals and objectives. The therapist opined that . had made progress during the 2009-2010 school year in several areas, including maintenance of performance, and following directions, categorization, receptive knowledge of and the concept . Tr. at 560-562. Mr. testified, moreover, that had developed an emerging mastery of irregular past tenses and a greater ability to respond to “ ” questions. While remained . was now demonstrating commenting skills with his peers.

On cross-examination, the witness observed that . had not participated in formalized peer modeling during the 2009-2010 school year as the child was not “ready to commit a session to it.” Tr. at 569-570. Nevertheless, Mr. observed that peer modeling was valuable as it provided an opportunity to develop . As such, he opined that appropriate peer models for . should possess slightly higher skills than the child himself. Using these criteria, Mr. nevertheless testified that there had been at least three children in S.B.’s class whose skills, in varying ways, were consistent with .’s peer modeling needs. Tr. at 569-572. Finally, the witness opined that the IEP goals were appropriate and could be met within its programming recommendations.

additionally testified on behalf of the Parent. Mr. is employed by the Department of Education as the Officer. In this capacity, the witness testified that he reviews District referral and based upon an outline of the child’s IEP a placement is identified. He did not know and had not been a placement officer during the relevant time frame. Tr. at 647. He added, moreover, that the placement office did not possess any records for . although it was their practice to maintain the referral in “dead files.” Tr. at 648-652.

additionally testified on behalf of the student. Ms. holds a Master’s degree in special education and is a Board Certified . During the 2009-2010 school year, she was employed as .’s head teacher in a 8 classroom of students, mostly male. In addition to her supervisory duties, Ms. testified that she was generally present in .’s classroom and worked directly with him at least one 45-60 minute period per day. Tr. at 874-875.

The witness described a program in which children were evaluated at least yearly on the assessment in addition to daily assessments of discrete trial data. Using the framework, protocol does not consider any skill “mastered” until all prompts are consistently faded and generalization across environments is achieved. Based upon the profile yielded, goals are then selected from an oriented curriculum bank. Ms. noted that . was able to read and comprehend , follow written directions composed of five to seven words, recognize monetary denominations and count by . Although . had “basic number sense . . . understood more or less type of concepts, subtract meaning number goes down or things get smaller, adding means . . . quantity goes up . . . “ he did not necessarily understand their quantitative values, sometimes requiring manipulatives for accuracy. Tr. at 812-813. Ms. additionally noted that the student struggled with , and . Tr. at 813, 869. In terms of , the witness described . as a , capable of complete sentences. Nevertheless, he demonstrated word retrieval issues and often required visual or verbal prompting to communicate effectively. While was relatively independent in motor planning, skills requiring socialization or language remained challenging. Tr. at

851; Exh. P.

Beyond this, Ms. reported that the student often engaged in like behaviors, occasioned by prolonged head banging and other behaviors such as . Although exhibited severe resistive behaviors when transitioning between environments, an antecedent could not always be identified. On these occasions, personnel surmised that .’s behaviors were related to and .^[9] As a result of .’s , Ms. testified that restraint techniques such as in order to to personnel. Two staff members were required to assist the child when . Tr. at 869.

8 The pupil/personnel ratio at has been variously described as 1:1, 8:1:7 and 6:6. Each child in the classroom has his own instructor as opposed to the assignment of a paraprofessional.

Thus, while . was deemed independent with many components of , she described a significant performance deficit secondary to and occurring daily. Similarly, . was , exhibiting a . As a result, he frequently under the supervision of his paraprofessional. Even at , Ms. opined that the intensity of required instruction and supervision. In the absence of this intervention, during the 2009-2010 school year, Ms. opined that . was incapable of benefitting from group instruction. Tr. at 829, 833, 857-859.

The witness further described a number of instructional techniques utilized with . including versions of and curriculum; depending upon the target skill, a discrete trial format was required. On other occasions, a more naturalistic environment could be offered using visuals, manipulatives and hands-on activities. Tr. at 822-823. and were addressed collaboratively through a push-in model within the classroom. Ultimately, Ms. testified that all classroom and related services therapists exclusively employed an protocol.

, Ph.D. additionally testified on behalf of the parent. Dr. is the Director of Education at the School. There are 39 children presently enrolled in the program, ages . She noted that is predicated upon the tenets of ABA and offers a classroom model. As such, the School offers ongoing training and supervision in the and protocol. The School employs shifts of employees and classes run weekdays from .

The witness testified that she is familiar with . as she is in his classroom on a near daily basis. She described the student as a and “ .” In response to these , a plan incorporating both pro-active and reactive strategies had been developed. Tr. at 888-889.

The witness indicated that she vaguely recalled being contacted by the CSE to make staff available for .’s 2009-2010 CSE. She did not recall, however, being asked to provide all personnel simultaneously, but could have done so as this has previously been arranged for other students.

Ms. is the child’s mother. She provided a brief history of her son’s developmental history, commencing with . initially received at home and later at at . . attended a classroom at for at which time he was re-assigned to a classroom. Thereafter, . remained in a public school assignment but was ultimately placed by the CSE at for the 2007-2008 school year. attended during the 2007-2008, 2008-2009 and 2009-2010 school years.

On May 8, 2009 and May 26, 2009 the Parent attended CSE convenes for the 2009-2010 school year. The witness testified that she had not been asked to furnish the CSE with any documents although she had previously provided them with the by , M.D. Similarly, she testified that there was no discussion regarding simultaneous or serial presentations by personnel. Tr. at 675-676. , .’s participated, but did not remain on the telephone continuously. Tr. at 676.

The witness noted that specific evaluations, including the observation, prior IEP and Evaluation were not discussed. Significantly, the witness testified that was busy taking notes, copies of which were requested but not furnished despite Parental request. Exh. 11. The Parent noted that there was no discussion regarding the Department of Education’s recommendation that ’s services be terminated although she had specifically inquired into this. Tr. at 729, 732-733.

In June 2010, the Parent received a Final Notice of Recommendation (hereinafter “FNR”) identifying .’s 2009-2010 placement. The Parent testified that she did, in fact, visit the recommended placement and was shown several classrooms, although none were specifically identified for . Exh. 12. Tr. at 683-685. Ms. . opined, however, that none of the classes were appropriate, noting that one class was not age appropriate, another was non-verbal and a third was “very behavioral,” a description offered by the class teacher. Tr. at 686. Ms. . indicated that she was unaware that the program would during the , nor was she informed that . might be placed in a class other than the ones she had been shown. Rather, Ms. indicated that the tour guide reported that these were the only placements available at her school. Tr. at 734-735.

Beyond this, the Parent was advised that was provided in the hallway, an inappropriate environment, given .’s sensory issues. In furtherance thereof, Ms.

advised the CSE as to her concerns, but received no response from Department of Education personnel. Exh. B. Although the Parent ultimately received an FNR for at she continued .’s enrollment at in the absence of any Department of Education response to her inquiries. She testified that she could not afford ’s $104,167.00 tuition, but had executed their tuition contract affirming her legal obligation. Tr. at 715; Exhs. V,

X.

Ms. . offered a brief description of her son’s conditions which include a wide range of associated with . All of this has had an impact upon .10

Nonetheless, she noted that her son had made meaningful progress during the 2009-2010 school year, a fact she attributed to ’s interventions. In furtherance thereof, the Parent observed that had become more independent and less self-injurious. Tr. at 692.

Mr. . additionally testified regarding his participation in CSE meetings convened on May 8 and May 26, 2009. At some point during the proceedings, he testified he was involved in professional emergencies which required his attention.

Rather than leave the proceedings, he remained and communicated via text. He noted additionally that although he had spoken explosively at one point during the meeting, he later apologized to the committee members. Tr. at 788. He attributed his anger to Ms.

’s suggestion that he and his wife would only consider a school placement, a fact which was historically untrue.

The witness noted that he had executed a contract with the School for tuition in the amount of $104, 167.00 for the 2009-2010 school year. Although Mr. was aware that he could not afford this amount, Dr. indicated that the school would be amenable to a payment plan.

The Department of Education’s Position

The Department of Education maintains that it has provided . with a free and appropriate public education. In particular, it maintains that the IEP developed May 8, 2009 and May 26, 2009 is valid and consistent with its mandate pursuant to both Educ.

Law 4402(2)(a) and 8NYCRR 200.6 §(a)(1). Exhs. 10.

There is no claim for reimbursement of travel expenses during the 2009-2010 school year. Tr. at 701.

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

The Parents’ Position

The Parent asserts that the Department of Education stands in abrogation of its duty to provide . with a free and appropriate public education. Specifically, counsel maintains that the May 8 and May 26, 2009 IEP reflects a number of substantive and procedural errors which, in aggregate and alone, compel nullification of the document. There is no dispute regarding the child’s classification nor is transportation reimbursement sought. As a corollary, the Parent contends that the placement is appropriate and that equitable considerations support her entitlement to an award of reimbursement (See U.S.C. § 1414 (d)(1)(A); §1401 et seq.; Board of Education of the County of Kanawha v. Michal M., et al., 95 F.Supp2nd 600 [S.D.W.Va 2000]). Exh. ii.

Discussion

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

In furtherance of this, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-207 [1982]); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). While both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 US at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 US at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (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 decisionmaking 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]).

I. Was S.B.’s 2009-2010 IEP reasonably calculated to provide educational benefits consistent with the mandate of Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982])?

A. Procedural issues

I find, ab initio, that the IEP developed during the May 9, 2009 and May 26, 2009 proceedings is invalid, based upon both procedural and substantive grounds. While it is clear that procedural errors alone do not necessarily culminate in the denial of FAPE, relief is warranted if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). Specifically, the student's right to a FAPE has been affected when the procedural violation results in the loss of the student's educational opportunity or seriously infringes upon the parent's opportunity to participate in the development of the student's IEP (Pioneer Cent. Sch. Dist, Appeal No. 04-50; 04-052, supra, citing Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]; W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]).

Perhaps unaware that the Department of Education had underwritten the tuition expenses for S.B. at for the past two years, Ms. initially testified that she could not recall discussing the child’s current placement at during the CSE proceedings. She then denied that the recommendation had been discontinued but offered this strained testimony. She stated, “We were creating a new IEP and everything is back on the table, so the question is what is appropriate at this time and these were the options that we were considering at the time. . . . I don’t look at it [the placement] as a continuation or a termination, I look at it as did we consider it and we didn’t consider it.” Tr. at 169-170. Indeed, everything was “on the table” except for the child’s current placement which had been underwritten by the Department of Education for the past two years.

While the CSE representative testified that she was aware of .’s prior and placements, she acknowledged that she was unfamiliar with the recommendation underwritten by the Department of Education during the two preceding school years. Tr. at 184-185. The IEP does not indicate it was ever discussed, nor did Department of Education witnesses address this topic. It appears nowhere in Ms. ’s “personal notes,” notes ultimately deemed to be the CSE minutes. Exh. 11. In view of the above, I find that the CSE failed to appropriately address the programmatic changes engendered by the IEP’s recommendation. Exhs. 10, 5.

Consistent with Ms. ’s testimony, the Parent similarly testified that the CSE refused to conduct any substantive discussion regarding a continuing placement at for the upcoming year. This occurred despite both Parents’ requests to do so. Tr. at 729, 732-733. Although this was clearly the Parents’ primary concern, Ms. ’s refusal to open the CSE agenda to a discussion of the child’s current placement as an option for the 2009-2010 school year effectively shut the door on the Parents’ ability to participate meaningfully. This was no trivial matter as the Parents were prevented from discussing their primary concern, an explanation for the unilateral decision of the CSE to terminate the placement and recommend a public school placement for the upcoming year. This was particularly imperative as the child had spent the prior two years attending classes in an classroom setting at the direction and recommendation of the Department of Education. Tr. at 221, 888. Ms. ’s statements and actions as the CSE Chairperson suggest that an Annual Review need not consider the child’s current placement as an option for the following year. I believe this is a distortion of the IDEIA and is inconsistent with proscriptions against pre-determination (Deal v. Hamilton County Bd.

of Educ., 392 F.3d 840 (6th Cir. 2004); D.B. v. Gloucester Twp. Sch. Dist., 751

F.Supp.2d 764 (D.N.J. 2010).

In fact, rather than addressing the Parents’ concerns regarding both program and site changes, it appears that Department of Education personnel responded with insinuations that the Parents would only consider a non-public school placement. Tr. at

788-789. Having acknowledged during the previous two years that it was unable to identify appropriate placements for ., the Parents were, at the very least, entitled to specifically address the CSE’s rationale for the termination of its placement and the dramatically less restrictive program now recommended. The testimony is clear:

Ms. : So you did not consider a continuation of the previous recommendation made by the

CSE.

Ms. : I don’t look at it as a continuation or a termination,

I look at it as did we consider it, and we didn’t consider it. Tr. at 169.^[11]

Under these circumstances, the CSE’s unilateral and arbitrary decision to preclude a substantive discussion of , notwithstanding the Parents’ attempts to do so, resulted in a procedural violation which significantly impeded the Parents' opportunity to participate in the decision-making process. The Parents were entitled to discuss the need, if any, for an program and to explore the CSE’s rationale for a site change. Ms. ’s control of the agenda foreclosed this opportunity. This is exactly the kind of due process violation recently addressed in Application of the New York City Dep’t of Education, Appeal No. 11-031. See also 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]).

Beyond this, the parties agree that the CSE proceedings did not include the simultaneous participation of its CSE members. 20 U.S.C. § 1414 (d)(1)(B) provides that all members of the IEP team must attend the entire meeting unless the parent and local education agency agree that the attendance is unnecessary and the parent consents to the excusal in writing. While teleconferencing is permissible, the parameters within which this may occur are clearly defined. See Letter from Thomas B. Neveldine to the District Superintendents, et. at. (June 1992); Letter to Heldman, 19 IDELR 930 (1932); Application of a Child with a Disability, Appeal No. 01-044.

In support thereof, the Parents cite a June 1992 State Education Department field memo entitled, The Use of Teleconferencing to Ensure Participation in Meetings to Develop the Individualized Education Program (I.E.P.), which provides that: "Participants in the telephone conference must be given every opportunity for active involvement throughout the entire Committee meeting" and "…individuals who participate through teleconferencing must have access to the same material available to all others involved in this process….". A field memo, however, does not have the force and effect of a regulation and must be viewed as advisory in nature (Application of a Child Suspected of Having a Disability, Appeal No. 03-063; Application of a Child with a Disability, Appeal No. 00-043)

The record at bar establishes that the off-site CSE members participated at length, in serial fashion, by telephone. Tr. at 50-52. Although Ms. , the child’s special education teacher, participated on both days, she too contributed serially by telephone and was not present for the entire process. It is clear from Ms. ’s testimony that each discipline offered extensive guidance into the formulation of short-term goals and annual objectives. It is, likewise, clear that none of the teachers or therapists anticipated the change in programming contemplated by Ms. , nor does it appear that anyone from ever saw the Department of Education’s final IEP. The record is silent on these facts.

While the goals developed for the 2009-2010 IEP are appropriate, it is probable that personnel believed they would be implementing them at their school within the framework of S.B.’s current supports. Ms. was unaware of the materials made available to and there is no testimony suggesting that a draft IEP was ever distributed to them. Having been uniquely responsible for providing .’s education for at least two years, there is nothing in the record to even suggest that was aware of the “CSE’s” new recommendation, a recommendation promulgated chiefly by Ms. in the absence of any discussion with . Unaware of the programming modifications incorporated into the IEP by Ms. and their implications for skills acquisition, it is doubtful that personnel would have generated the same recommendations. As such, ’s involvement was compromised by their lack of knowledge regarding Ms. ’s anticipated programmatic changes. As Ms. herself was unaware of the pupil/personnel recommendation, it appears that the development of the IEP was based upon , on behalf of both Ms. and personnel. The lack of simultaneous discussion deprived CSE members of the inter-disciplinary discussions and collaboration necessary to knowledgeably and meaningfully address the dramatic programming changes sought by the Department of Education.

In furtherance thereof, I note the following testimony in connection with which documents were in the CSE’s possession during its proceedings:

MS. : Were the people from the Center given a copy of the report?

MS. : You're asking me?

: Yes, I'm asking you.

MS. : I don't know what the people at were given.

MS. : Okay, do you know what documents the people at had when they participated in the review meeting?

MS. : As far as from the parent, no, I don't.

MS. : Did you ensure that they had whatever document you were discussing at the time?

MS. : As far as the documents that they were providing us, they had.

MS. : My question is, did you ask them--

MS. : (Interposing) I didn't provide with documents.

Ms. : My question was, did you ask them if they had whatever document you were discussing at the time during the meeting?

MS. : I don't recall. Tr. at 216-217

Although the CSE representative indicated that had requested serial presentations by its personnel in order to avoid removing multiple staff members from the classroom, Dr. did not recall this. In fact, she testified that, if asked, she could have provided staff simultaneously as this had occurred previously with other districts. She noted, moreover, that .’s meeting had occurred on a staff training day rendering simultaneous participation far less burdensome. Tr. at 890-891. While the testimony on this issue is in conflict, it is clear that the Parent did not sign a waiver pursuant to 20 U.S.C. § 1414(d)(1)(B), notwithstanding Ms. ’s testimony that she had explained to the Parent that “we wanted everybody to participate in the meeting at the same time.” Tr. at 137-

140. This explanation, however, does not place the Parent on notice as to the negative consequences of isolated presentations lacking shared discussions and experience. The CSE is a proceeding in which professionals offer insights, guidance, observations and opinions with the goal of incorporating multi-disciplinary and multi-modality interventions; simultaneous participation is imperative, especially for the special educator or classroom teacher.

Beyond this, the Behavior Intervention Plan (hereinafter “BIP”) does not comport with the requirements of 8 NYCRR §200.22. The Commissioner's Regulations explicitly note that a BIP shall identify:

(i) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors. Such baseline shall, to the extent practicable, include data taken across activities, settings, people and times of the day. The baseline data shall be used as a standard to establish performance criteria and against which to evaluate intervention effectiveness;

(ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s)

and alternative acceptable behavior(s); and

(iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals.

A quick review of the indicates that there are no methods of quantification or response criteria. It offers no specifics as to frequency, duration or intensity nor is it clear as to how progress will be monitored. Incredibly, Ms. testified that, as she co-chaired the proceedings, she simultaneously wrote the child’s goals, intermittently typed the minutes, contributed to the discussion, synthesized data and developed both a “functional assessment”12 and for the child. Tr. at 92-95, 97-98, 164. I find that the is inadequate as is Ms. ’s “functional assessment.” Exh. 11 at 3. The verbal reports offered by do not constitute the predicate evaluations upon which an must be based nor does the record establish that personnel intended them to be so.

Finally, I find Ms. ’s testimony regarding her type-written “note-taking” disingenuous. Clearly, these self-serving notes, prepared most likely in contemplation of litigation, were intended to serve as the CSE minutes. Her description of them as “just taking notes for myself” was a distortion of the truth and a clear mis-statement of her intentions, particularly in view of her minute by minute notations regarding ’s participation and Mr. .’s texting. Indeed, when confronted with the suggestion that the CSE had failed to maintain a written record of the proceedings, Ms. suddenly referred to her “notes” as “minutes.” Tr. at 163; Exh. 11. While the Department of as opposed to a “Functional Behavior Analysis”

Education’s representative, Ms. , was asked to confirm their accuracy, the Parents were not. The testimony of Ms. . and Ms. is diametrically opposed on the issue of whether Ms. . had requested and been denied a copy of Ms. ’s notes. Tr. at 680-681,

187-188. In light of Ms. ’s evasiveness on many issues13 I believe these type-written notes constitute the fundamental material upon which the CSE minutes were based.

Given (1) ) the CSE’s failure to discuss as a placement alternative as well as its rationale for a new programmatic recommendation, (2) the absence of simultaneous CSE participation (3) the lack of certainty as to what materials were before the CSE members,

(4) the non-continuous telephone presence of Ms. , the child’s special education teacher,

(5) the failure to confirm or exchange the CSE minutes with the Parents, (6) the failure to designate any methods of quantification or grade levels within the IEP and (7) the inadequacy of the child’s , these procedural infirmities stand in abrogation of the Parents’ due process rights.^[14] Tr. at 676; Exh. 11 at 3. Indeed, the lone failure to consider any substantive discussion of the placement reinforces the notion of impermissible determination.

B. Substantive issues

While the proceedings were lengthy, extending over the course of two sessions, the CSE’s agenda prevented any dialogue concerning the specific termination of

S.B.’s current placement at and the CSE’s rationale for doing so. This was particularly disturbing as the evaluation by , ., was used by the Department of Education to validate recommendations for both an 8:1:7 at during the 2007-2008 and 2008-2009 school years and a District placement classroom enriched by assignment of a paraprofessional. Tr. at 62, 670-671, 728-729, 732-743; Exh. 3. To the contrary, the

Neuro-Developmental Evaluation conducted by , . specifically states, “For the upcoming 2007-2008 school year . . . . . will require an educational placement, in

13

(i.e. her prior observation of ; the records shared with ; the value of simultaneous CSE participation, and whether an placement was discussed), which he is provided with teaching using the principles of .” Exh. 3 at

6. It, in no way, addresses the 2009-2010 school year.

Although Ms. indicated that the CSE had relied on Dr. s evaluation and others, this is the only -developmental evaluation in the record.

Curiously, while Ms. ’s notes reference minute by minute efforts of the CSE to contact along with detailed information regarding .’s diet and Mr. .’s texting, her “meeting notes” do not indicate any discussion about Dr. s recommendation or any other evaluations. Exh. 11 at 1. Whether a placement enriched by the assignment of a paraprofessional or an setting were considered, there is no basis in the record for the CSE’s dramatically less restrictive recommendation, nor is it evidenced in the child’s IEP. Exhs. 3,4,6-10,15,H-O.15

I note, moreover, that progress reports were uniformly prepared by and either support the 8:1:7 recommendation or do not address the appropriateness of a less restrictive environment. The Observation conducted by the Department of Education does not reflect any recommendation at all, nor does the Social History. Exhs. 9,4. Both of ’s teachers, , professionals who knew the child best, opined that required the intense programmatic structure offered by . In particular, Ms. , the Head Teacher in .’s classroom, consistently reiterated that . required intervention he was receiving at due to the intensity of his . In the absence of this intervention she believed S.B.

could not effectively participate in group instruction. Tr. at 829, 857-859.

Similarly, in her January 2009 Educational Progress Report, , .’s teacher during the 2008-2009 school year, clearly opined, “Continued individualized education with one-to-one staff support is necessary for Sean to make meaningful educational gains and to ensure a low rate of challenging behavior and safety. Exh. 7 at 5. Finally, , the child’s , opined that . would not be able to function in the classroom without the benefit of assistance. Tr. at 567-568. Nevertheless, there is no specific testimony establishing whether this assistance could be met with the assignment of a paraprofessional as opposed to an instructor.

Exhibit 14, entitled “ ” references a different child.

In contrast, , the special educator assigned to .’s proposed classroom during the 2009-2010 school year, did not know the student and based his opinion upon the 2009-2010 IEP as did , the Assistant Principal. Tr. at 292-293, 241. , the Department of Education Placement Officer, did not know the child at all as he had recently been assigned to his position. He had no records for the child, however, and suggested that the child’s file had been shredded although this is not the usual custom and practice for his department. Tr. at 648-650.

While the CSE team reflected the serial participation of personnel, only two individuals from the Department of Education participated. Ms. indicated she had personal knowledge of the student, testifying that she had conducted a formal assessment of the child and participated in his IEP meetings during the last two years. She could not, however, recall when she had formally evaluated the child and acknowledged that she had not conducted a psycho-educational assessment. As such, there is no evidence in the record to suggest that Ms. ’s observation of . reflected anything more than casual glimpses in the classroom when present for other purposes. Her testimony was somewhat circuitous.

MS. : Okay. Can you please tell me, have you ever evaluated

MS. : I'm not certain as a fact as to whether I did the observation or not on either of the years, but I did do a formal assessment and I've done an observation with that.

MS. : Okay, the observation in evidence is signed .

MS. : Right.

MS. : Is it your testimony that you believe you did an observation as well?

MS. : Well, you asked me if I have ever done one, and I worked with the school and the students in the school for two years, but iI'm not certain as to the following year as to whether I did the observation or not.

MS. : Okay, so--

MS. : But you're asking if ever, and I'm certain as if ever.

MS. : Okay, but you've never done a , correct?

MS. 1 : Correct.

MS. : And do you recall ever meeting ?

MS. : Yes.

MS. : Okay, and when was that?

MS. : I have been in the classroom many times.

MS. : Okay, can you remember when that was? Was it prior to the CSE meeting held on May 8th or the CSE meeting held on May 26th of 2009?

MS. : I don't recall. Tr. at 131-132.

In the same line of testimony, Ms. then indicated that, while she recalled meeting . previously, she did not know whether this had occurred prior to or subsequent to .’s CSE. Tr. at 132.

In fact, the Observation submitted into the record was conducted by . Exh. 9. Ms. did not testify but her Observation describes several educational activities with intermittent episodes of self-stimulatory and off-task behaviors. It is unclear how much time was spent at as it is not noted on the report. Moreover, one cannot make any specific programmatic conclusions regarding staffing ratios based upon this Observation, nor does the document attempt to do so. There is nothing in the record to even remotely suggest that was aware of Ms. ’s recommendation, either by testimony or in the CSE minutes. I believe this occurred by design.

Reviewed in their totality, I believe the procedural defects and the absence of evaluative material supporting the Department of Education’s recommendation compel a nullification of the child’s IEP for the 2009-2010 school year.

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

Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir.2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential ( ., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" ( ., 459 F.3d at 364; see also 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate ( , 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides ”education instruction specifically designed to meet the unique needs of a handicapped child)” ( , 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction ( , 489 F.3d at 112; see 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]).

The ABA program at is based upon empirical research in the field of autism and others. Its staff is certified by individual New York State licensing divisions. Training and feed-back are offered on an on-going basis. The program offers a small, structured and intense opportunity students to learn skills. Programming reflects a dynamic, data-based approach to acquisition which is responsive to the individual needs of its students. While I am not convinced that the pupil:personnel ratio is necessary for ., neither is it inappropriate. Clearly, . displays an unusual degree of behavior which effectively frustrates the acquisition of many substantive and cognitive skills. It is suspected that much of this is related to the conditions, both , from which the child The testimony of several clinicians and teachers, individuals duly credentialed and knowledgeable about the child, indicates that unless these are brought , instruction within the classroom environment is a gesture. Nevertheless, progress has been achieved and the extent to which .’s preclude meaningful instruction has declined.

In furtherance of this, the child’s providers have uniformly observed areas of significant achievement, particularly in the area of speech. Given this testimony, I believe the parent has credibly established the appropriateness of .

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

The record does not indicate any equitable factors which militate against an award of reimbursement, nor are any claimed. The Parents have shared evaluations, participated in CSE meetings, visited recommended placement sites and attempted to communicate with the Department of Education when concerns arose regarding those very same placement sites. Although the parties acknowledge a single outburst by Mr. ., his apology was duly noted by Ms. in her “minutes.” Under these circumstances, there is no reason to believe the Parents have not met their equitable obligations.

Conclusion

The parent’s request is granted. Wherefore, it is hereby ordered that:

Upon submission of a duly sworn affidavit from the School, the Department of Education shall make direct payment to the School for any and all outstanding tuition fees incurred by the . family for the ten month period during the 2009-2010 school year in which . was enrolled as a student. Dated: September 26, 2011

__________________________________

LYNN BOTWINIK ALMELEH, ESQ.

Impartial Hearing Officer

LBA: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 Hearing Request, 11/9/10, 5 pp. B Letter to M. with Fax Transmission Report, 6/25/09, 3 pp. C IEP, 6/9/08, 23 pp. D School Description, 2 pp. E Upper School Teaching Staff List, 1 pp. F Room 6 Classroom Schedule, 2009-2010, 1 p. G School IEP, 2009-2010, 10 pp. H Educational Progress Report, 1/15/10, 6 pp. I Educational Progress Report, 6/23/10, 6 pp. J Progress Report, 6/2010, 3 pp. K IEP goals, 9/2009-8/2010, 6 pp. L Report, 1/15/10, 7 pp. M Report, 6/15/10, 6 pp. N IEP Goals, 6/20/10, 2 pp. O Tracking System, Various Dates, 3 pp. P Data Graphs, Various Dates, 28 pp. Q Skill Tracking Sheets, Various Dates, 30 pp. R Affidavit of , 10/23/08, 1 p. S Enrollment Contract, 9/2/09, 3 pp. T Record, 2008-2009, 1 p. U Affidavit of , 1/7/11, 1 p. V Enrollment Contract, 8/4/09, 3 pp. W Report 2009-2010, 1 p. X 1040 Income Tax Return, 2009, 3/22/10 Y Special Education Service Delivery Report, 5/28/10, 1 p. Z Subpoena to , 1/12/11, 3 pp. AA Department's Response to Subpoena, 2/2/11, 13 pp. BB Progress Report, 8/14/09, 7 pp. CC Letter to with Fax Transmission Report, 1/7/11, 3 pp. DD Letter to with Fax Transmission Report, 1/14/11,^[2] pp. EE . Profile, 2/2011,^[1] p. FF CCP9 Minutes of CSE Meeting GG DOE Response to Subpoena, 3/11/11, 3 pp. HH NYSED/NYC Teaching Assistant Qualifications, 5 pp. II Profile, 7 pp. JJ Testing, 6 pp.

DEPARTMENT OF EDUCATION

3 Evaluation, 3/9/07, 7 pp. 4 , 10/20/09, 2 pp. 5 Individual Education Plan, September 2008-2009, 10 pp. 6 Progress Report, 1/2009, 4 pp. 7 Educational Progress Report, 1/16/09, 5 pp. 8 Progress Report, 1/24/09, 5 pp. 9 Classroom Observation. 4/28/09, 2 pp. 10 Individualized Education Program, 5/8/09, 5/26/09, 24 pp. 11 Meeting Notes, 5/8/09, 5/26/09, 5 pp. 12 FNR, 6/11/09, 1 p. 13 Letter from , 12/12/10, 1 p. 14 , 1/5/10, 1 p. 15 Department Progress Report, 1/2010, 3 pp. 16 Signed and Notarized Affirmation of Mr. , 2/17/11 17 Meeting Notes, Various Dates, 2009-2010 School Year, 21 pp. (excepting page 17-9)

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Footnotes

[1] The extended school year begins in September and continues through August. The Department of Education extended school year begins July and continues through June. The 2008-2009 tuition contract and calendar overlap with July and August of the Department of Education’s 2009-2010 school year. Therefore, payment is only being sought for 10 months. Tr. at 15.

[2] Tuition was previously underwritten by the Department of Education. Ms. repeatedly referred to as the child’s teacher. The teacher’s name is actually .

[3] The witness testified that she “took a break” from writing notes while she was writing goals. Therefore, the meeting notes were not complete. Tr. at 164; Exh. 11. The witness did not know the details of this training. Tr. at 225.

[9] Ms. indicated that . would engage in such that a minimum of three, were required to the child. On these occasions, a third staff member would implement while other employees held the child. Tr. at 824, 866.

[11] The “we” referenced by Ms. appears to be herself and Ms. as it is unclear if was even aware of the new recommendation for a public school placement.

[14] Ms. ’s notes indicate, “ : we really need to have the teacher present to explain the behavior reduction program . . . . . . We will reschedule.” Exh. 11 at 3.

[1] Due Process Complaint, 11/9/10, 2 pp.

[2] Due Process Response, 11/19/10, 4 pp.