New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth: District: 2 Hearing Requested By: Parent Date of Hearing: March 22, 2011

March 30, 2011

April 11, 2011

May 31, 2011 Hearing Officer: Edgar De Leon, Esq.

3RD CORRECTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 22, 2011

Attorney — Student

Attorney — Student

Parents

Attorney — DOE

School Psychologist (via telephone) — DOE

Assistant Principal, (via telephone) — DOE

Observing: — DOE

Impartial Hearing Officer — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 30, 2011

Attorney — Student

Attorney — Student

Parents

Attorney — DOE

Pupil Accountancy Secretary (via telephone) — DOE

Ed Teacher (via telephone) — DOE

Observing: — DOE

Impartial Hearing Officer — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 11, 2011

Attorney — Student

Attorney — Student

Mother — Student

Director of School — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 31, 2011

Attorney — Student

Mother — Student

Attorney — DOE

Parent Coordinator, (via telephone) — DOE

On November 19, 2010, I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, Section 504 of the Rehabilitation Act of 1973 and the No Child Left Behind Act, concerning a dispute between the Parent of a (6) year old student attending private school and the - Department of Education (“DOE”) - District: regarding the student’s education program.

BACKGROUND

This case was initiated as the result of a Due Process Complaint (“DPC”) filed by the student’s Parent through her attorney(s), the Law Offices of , and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about November 17, 2010. (DPC) The DPC is carried under New York City (“NYC”) Case No. 131002.

The Parent’s DPC alleges that for the 2010-2011 school year, the DOE has failed to offer the student a “free and appropriate public education” (“FAPE”) in that the student’s May 27, 2010 Individualized Education Program (“IEP”) is procedurally and substantively flawed. (Id.) The May 27th IEP classifies the student as “ ” and recommends placement in a class in a school with related services and a “ ” class size/staffing ratio. (Id.) The “offer of placement” is dated June 14, 2010. (Id.) The Parent has rejected the DOE offered placement and has unilaterally placed the student in a private school. (Id.) At the impartial hearing, the Parent seeks “funding/tuition reimbursement” for the student’s placement at the private school for the 2010-2011 school year, and a “declaratory finding” that the Committee on Education (“CSE”) failed to provide the student with a FAPE for the 2010-2011 school year. (Id.)

After having adjournments granted on consent or for cause, the impartial hearing was held on March 22, 2011, March 30, 2011, April 11, 2011 and May 31, 2011. The parties opted to file written closing statements which were to be filed on June 27, 2011. (T-427) A list of the witnesses appearing at the hearing and the documents received into evidence is annexed hereto.

THE DOE’S CASE

The DOE filed an answer to the Parent’s DPC which denies the Parent’s allegations. (D-2) The agency declined to make an opening statement at the impartial hearing. (T-49) The DOE filed a (37) page closing statement dated June 28, 2011, wherein the agency argues the following:

(a) The DOE complied with the IDEA’s procedural requirements in the formulation of the student’s IEP. (DOE Closing Statement, pg. 21)

(b) The student’s IEP is reasonably calculated to enable the student to receive educational benefits in the least restrictive environment. (Id.)

(c) The recommended DOE placement could have “substantially implemented the student’s IEP. (Id., pg. 22)

(d) The student’s mandates would have been fulfilled through a combination of services provided on-site and by the issuance of Related Service Authorizations (“RSA”). (Id.)

(e) The recommended DOE placement would have been able to provide the student with a Transitional Paraprofessional. (Id.)

(f) Even if the recommended DOE placement could not have provided the student with a Transitional Paraprofessional, discrepancies between services actually provided by a placement school and those mandated by an IEP do not necessarily violate the IDEA. (Id., pg. 23, citations omitted here)

(g) The Parent received more than adequate notice of the IEP meeting scheduled for May 27, 2010. (Id., pg. 25)

(h) The IEP alerts an experienced Education Teacher as to the student’s instructional levels in , writing and problem solving by noting that the student “has not developed any pre-academic skills.” (Id., pg. 25)

(i) The IEP goals are more than adequate to facilitate the student’s progress and achievement in that it contains (15) annual goals and (43) short term objectives to address the student’s deficits in pre-academic skills, the majority of which were proposed by the student’s private school. (Id., pg. 25-6)

(j) The IEP goals are measurable in that they include evaluative criteria, evaluative procedures and/or schedules that can be used to measure progress.

(Id., pg. 26, citations omitted here)

(k) The IEP describes the student’s and provides supports and strategies for addressing any deficits, and as such, the DOE’s failure to conduct a Functional Assessment (“FBA”) and/or create a

Intervention Plan (“BIP”) is not a deprivation of FAPE. (Id., pg. 27, citations omitted here)

(l) The IDEA and its implementing regulations only require that a BIP be “considered”, not that it actually be created if reasonably unnecessary. (Id.)

(m) The student’s private school does not provide the amount of related services that the Parent thinks the student needs and is not the “least restrictive environment” (“LIRE”). (Id., pg. 28-31)

(n) The Parent never seriously intended to place the student in a public school and executed a contract with the private school the exact day she was to visit the recommended DOE school. (Id., pg. 33)

(o) The Parent is an interested witness as a matter of law. (Id.)

(p) The private school’s cost is unreasonable when compared to the Parent’s ability to pay and this should result in a denial of tuition reimbursement. (Id., pg. 34-5, citations omitted here)

(q) There is no evidence of a valid contract between the Parent and the private school, in that the “contract” incorporates by reference a document that was not produced. (Id., pg. 36)

(r) The Parent did not provide any “consideration” for the contract. (Id.)

(s) The private school is artificially inflating the price of its service and there is no objective evidence as to the value of the private school contract. (Id., pg. 36, citations omitted here)

The DOE called (5) witnesses to testify on its behalf and submitted (13)

documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness conducted an observation of the student and participated in his IEP meeting on May 27, 2010. (T-50) She is a school psychologist. (T-52) In November of 2009, she sent consent forms to the Parent to observe the student and called her a few times, but did not receive a response. (T-54) After the Parent’s attorney was contacted, she conducted the student’s observation. (Id.) She prepared drafts of certain

IEP pages prior to the meeting from reports she had received from the student’s private school. (T-55)

The witness stated that a education teacher acting as the district representative, sat in on the IEP meeting, as well as a parent member, a worker from the student’s private school and the student’s teacher. (Id.) The Parent was advised of her due process rights at the end of the meeting. (T-56) At the time of the IEP meeting, the student was functioning at a level in all areas. (T-58) He was considered for a PECS book (“Picture Exchange Communication System”), but he was not yet able to recognize and identify that a picture can reflect something that he wanted. (T-58-9) The student was working on the pre-curser of PECS and pre-academic skills. (T-59) At that time, the student needed input in order to remain engaged and focused and on task. (Id.) The student needed manipulatives and prompting. (T-59-60) The student was classified as having , non- and had significant and . (T-60)

The witness stated that at times the student would spit or yell at others. (T-61) As a , management need, they added access to a quiet unstimulating space to his IEP so that when he became over stimulated he was able to re-regulate fairly easily and quickly. (T-61) The student was able to engage with adults and peers. (Id.) The student is diagnosed with “ ”, which refers to poor development. (T-63) He also has significant global developmental delay and was not trained. (Id.) The student required continued “ ” and “ .” (Id.) He also needed support in and . (Id.)

The Witness stated that the student’s goals came from his private school reports dated May of 2010. (T-64) No objections were voiced at the meeting concerning the IEP goals. (Id.) Goals were included to get the student y for to specifically

(T-65), pre-academic skills for math (T-66), processing information (Id.), planning skills (T-67), processing goals (T-68), to improve the student’s strength and endurance (T-70), for balance and mobility (Id.), and goals referring to the s of the mouth (T-72) and general classroom goals. (T-73) The student was delineated a one-on-one paraprofessional to support him throughout the school day. (T-74) The consensus was that the student needed a -month school year. (T-75)

The witness stated that a and a placement were ruled out for the student because they did not provide enough one-on-one support to address his specific needs. (T-76) They also felt the student needed more support than a placement and therefore provided the student with a one-on-one paraprofessional. (Id.) They agreed with the Parent that the student needed an increase in his mandated related services. (T-77) They also gave the student a transitional paraprofessional. (Id.)

On cross examination, the witness testified that she did not see any communications from the CSE to the Parent in the student’s CSE file concerning whether there was an available seat in the recommended DOE class. (T-79-80) Neither did she see communications as to whether there would be a paraprofessional for the student. (T-80)

The witness conceded that the class without the one-on-one transitional paraprofessional would really only offer a students to staff ratio. (T-81) She has only done one formal evaluation of the student. (Id.) The student’s “ and ” would interfere with the student’s , but according to the teacher, not to the point where the teacher could not address it. (T-82)

The witness stated that the CSE did not do an FBA and did not develop a BIP. (T-83) A finalized copy of the IEP was sent to the Parent about one week after the CSE meeting. (T-86) “ supports” are unequivocally necessary for the student. (T-87) She cannot say for certain that all programs have a component or focus. (T-88) The team did not indicate a level for the student, but you can’t have a skill if you cannot . (T-89-90) The student was not writing at all, so he has a goal to just simply form horizontal lines. (T-90) He has not yet developed any pre-academic skills. (Id.) The student was not at a level. (T-91) The student was working on recognition of letters and numbers. (T-93) The “problem solving” section of the student’s IEP refers to “word problems.” (T-94)

The witness stated that she does not recall the student’s present levels about the following, and they are not included on the student’s IEP: able to engage in 10 minutes of group activity (T-95), tolerate at least 5 minutes of linear vestibular input (T-96), catch and throw a small ball 3 out of 5 times in a 30-minute session (Id.), grab and track a moving object in 10 minutes (Id.), copy a vertical line (T-97), wheelbarrow walk for 10 feet (T-100-1), maintain supine flexion and prone extension position for 10 seconds (T101), propel on a scooter while prone for 10 feet for three out of five sessions (Id.), able to ambulate independently (other than he required an accessible program) (T-102), able to engage in any minutes of upright linear swinging (T-102), kick a medium-sized rolling ball back and forth for five repetitions (T-102-3), conduct circles of communications (T-103), gestures to improve his expressive skills (T-103-4) and expanding his use of consonant-vowel combinations to increase sound-symbol inventory (T-104-5)

The witness stated that any teacher or clinician would assess the student in their first meeting and then determine if the student was increasing a skill. (T-106) The student was inconsistently responding to his name by turning his head towards the communitive partner. (Id.) She cannot recall if the student had any matching skills. (T-

109) The student required “PROMPT” techniques to tolerate foods and for appropriate sound production. (Id.) The student can self-regulate given several moments to himself. (T-112) The student’s ability to count is not specifically indicated on his IEP. (T-114) The types of tools which are appropriate for the student are not indicated because they recognize that the student’s needs change throughout the course of the school year. (Id.)

The witness stated that the student’s preferred activities are chase games, hide and seek and building and knocking down blocks. (T-116) The student’s teacher would be expected to work collaboratively with the other therapist. (T-117) There was no re-direct examination of the witness. (T-118)

The DOE’s second witness is familiar with the student’s program but has never met him. (T-130-1) She is the Assistant Principal at the student’s DOE recommended school. (T-131) All of the students at the school have IEPs. (T-134) She would not have been able to meet the student’s related service requirements if the student had attended her school this current year. (T-135-7 & 138-40) It’s possible that the requirements may have been met in part, but not probable. (T-135) A Related Service Authorization (“RSA”) would have been sent to the Parent. (T-138) There is a “possibility” that the school could have provided the student with a transition paraprofessional. (T-140-1) They have a variety of parent seminars that are held throughout the school year on various topics. (T-141)

On cross examination, the witness testified that it is up to the Parent to communicate with the list of RSA providers that they make available. (T-143) They do not have any other students who are recommended for transitional paraprofessionals. (T-144) There was no re-direct examination of the witness. (T-146)

The DOE’s third witness is the “Pupil Accounting Secretary” at the DOE recommended site. (T-173) She does not know the student because he never actually showed on their registry. (Id.) She reviews documentation regarding admittance and discharge of students and helps to put students into the right class according to their IEP, attendance and anything else. (T-175-6)

The witness stated that she received a site offer for the student on a District referral form on June 14, 2010. (T-176) To the best of her recollection, the offer was for the upcoming September. (T-177) However, if the student had appeared at the school in July, there would have been a seat for him. (Id.) The first day of school in July of 2010 was July 6th. (Id.)

On cross examination, the witness testified that she did not know who had checked off “Carter Case” on the District referral form. (T-178-9) She does not know what a “Carter Case” means. (T-180) There were three other students who were supposed to be placed in the student’s class that did not show up. (Id.) The class actually had (7) students on the roster on the first day of school. (Id.) The class was actually formed a couple of days before summer school. (T-181) They would not have a class full because they adjust classes according to how many students show up the first day of summer school. (T-183) She is not sure of how many classes. (Id.)

On re-direct testimony, the witness testified that any list done for summer school prior to the program is a tentative register. (T-184) The second day of summer school, July 7th, there were four students in the class. (T-185) On re-cross examination, the witness testified that she does not know how many seats were offered to students. (T-186) She also does not know how many classes were shown to the Parent. (Id.)

The DOE’s fourth witness is the teacher in the proposed DOE class. (T-188) She is a education teacher. (T-190) She has been teaching since 1997. (T-190-1) She would have been the student’s teacher and believes that she could have implemented his IEP. (T-192) The first thing she would do is all of the student’s records, see what the student’s cognitive functioning level is, what type of scores he has and what he needs to work on. (T-193-4) She would use a lot of cues, and stimulus and a “hands on” approach to the student’s . (T-194) The student would also have manipulatives. (T-195) She believes that the student would be functionally grouped within the class in terms of his academic performance level and strengths and weaknesses. (Id.)

The witness stated that she believes the student would benefit from direction and instruction that she would provide. (T-196) The student would be overwhelmed with too much activity in the classroom, but they keep the classroom with a “nice environment” and they do not shout. (T-197) They use a “PECS” book in the classroom which is referenced in the student’s IEP. (T-198) They have communication devices with pictures. (T-199) They do an instructional breakfast where they train the student to go and get his breakfast. (T-200) They train the children with a timer to remind the students to go to the bathroom every (15) minutes or so. (Id.)

The witness stated that giving the student two choices would encourage his and independence and would help with his academic skills. (T-202) Coins would be used to help the student count. (Id.) The student would receive one-on-one support when he needs it, as well as prompting. (T-203) With his issues, the student would benefit from a small group setting for a shorter period of time. (Id.) They would enforce the student’s “ ” in the classroom. (T-204)

The witness stated that she works with each day by doing songs, poetry, repetition, modeling and “ - .” (T-207) They use a microphone in the classroom which encourages . (Id.) In “play therapy”, the student might be paired with another student who was higher functioning. (T-208) She works with the classroom paraprofessional, not the “transitional.” (T-211)

On cross examination, the witness testified that she has never met the student or his mother. (T-213) The grade level of the higher functioning students in her class is “ ” and three or four of the students are non- . (T-216) Later the witness stated that they are around kindergarten level. (Id.) She has one paraprofessional and also one paraprofessional for a student. (T-217) At the moment she is working on training just one student. (Id.) The paraprofessional is in the bathroom with the student. (T-218) Approximately seven classes eat lunch in the cafeteria at the same time. (T-219) All of the classes are self-contained education classes. (Id.)

The witness stated that her students receive “APE.” (T-221) Art is given the classroom. (T-222) Music is also sometimes given in the classroom. (Id.) All of the lower functioning, non-students receive an audio- device. (T-223-4) The student would receive his own audio- device. (T-224) She is sure that the student would receive a paraprofessional if it is on his IEP. (T-226-7) For “proprioceptive input” they use play dough for the students to make numbers and letters and tissue paper for skills. (T-227) However, she does not know what “proprioceptive input” or “linear vestibular input” is. (T-228) She said a “circle of communication” is when they are working in a group activity. (T-229)

The witness stated that she would have to observe the student to adjudge his . (T-230) It does not appear that the student was tested in the area of mathematical problem solving. (T-231) They have a “ meter” with happy faces where the students can indicate how they feel today. (T-232) The students leave the classroom for related services and for art, music and gym. (T-233) They have a chair in the back of the classroom where if a student is acting up, he or she is taken to sit quietly. (Id.) The classroom is very large, approximately “50 x 80.” (T-234) It has a play area. (T-234-5) There was no re-direct examination of the witness. (T-236)

The DOE’s fifth witness gave rebuttal testimony. She is the Parent Coordinator at the proposed DOE school who was called to testify that the Parent made an appointment to visit the DOE school, but never showed up. (T-375 7 409)

The witness stated that she conducts approximately (40) parent tours a month. (T-

410) She believes that she was working on June 23, 2010. (T-411) If it is stated on her calendar, then she met with the student’s Parent on that date. (T-412) She would never show a Parent a classroom that was full. (Id.) The Pupil Counting Secretary tells her which class the student in going to be placed in. (T-413) She does not have an independent recollection of visiting the student’s proposed class on that date. (T-414) During voir dire, the witness stated that she did not know how many students were assigned to the recommended DOE class on that date. (T-415)

The witness stated that she does not have an independent recollection of having a conversation with a parent on June 23, 2010, regarding a class. (T-416) She never told the student’s Parent that they allow a class to exceed or get as high as (12) students. (T-417) She recalls having a conversation on June 23, 2010 with a parent that was visiting the school about related services. (T-417-8) She does not recall telling a parent on that date that the DOE school would not be able to fulfill the student’s related service requirements. (T-418) She has two tours on her calendar as having been conducted on June 23, 2010. (Id. & IHO-5)

On cross examination, the witness testified that she recalled having a conversation on June 23rd with whatever parent that came for the tour, referencing the school’s ability to provide related services. (T-419) She does not recall specifically who she had that conversation with. (Id.) She works (12) months out of the year. (T-420) The Parent visited the school on the last day of school, June 28th. (T-420-1) There was no re-direct examination of the witness. (T-421) During voir dire, the witness stated that there were two parents scheduled to visit the school on June 23rd. (T-422-3)

THE PARENT’S CASE

The Parent filed a DPC alleging procedural and substantive flaws in the DOE’s offer of a FAPE to the student for the 2010-2011 school year. (DPC) The Parent declined to make an opening statement at the impartial hearing. (T-49) The Parent’s attorney filed a (27) page closing statement, wherein she argues the following:

(a) The May 27, 2010 IEP is inappropriate to meet the student’s academic, , and and and needs. (Parent’s Closing Statement, pg. 3)

(b) The IEP’s present levels of performance are insufficient to provide an adequate baseline from which to guide the student’s teachers and parents and from which to determine progress. (Id., pg. 4)

(c) The IEP’s insufficient present levels of performance directly led to inappropriate and insufficient goals for the student. (Id., pg. 5)

(d) The DOE failed to conduct an FBA or to develop a BIP for the student and because the student’s interferes with his , this is a violation of the student’s right to a FAPE. (Id., pg. 6-7, citations omitted here)

(e) There is no evidence that the DOE provided the Parent with information about parent training and and even if the agency had provided some form of parent training and , does not redeem the IEP’s failure to provide the same. (Id., pg. 9, citations omitted here)

(f) The DOE did not indicate a specific class in the student’s IEP and the offered program is not appropriate for the student. (Id., pg. 10-16)

(g) The private school program is appropriate for the student in that it is specifically designed to meet his , / , and , academic, needs and has provided him with educational benefits. (Id., pg. 17-22)

(h) The Parent fully cooperated with the CSE. (Id., pg. 23)

(i) The DOE has failed to cooperate with the Parent in considering her concerns and providing requested information. (Id.)

(j) The Parent has “standing” in this matter even if she has not paid any tuition or incurred out-of-pocket expenses. (Id., pg.25-6, citations omitted here)

(k) The private school contract is clear with respect to the Parent’s obligation for the tuition. (Id., pg. 26)

(l) The undersigned should make a negative inference as the DOE’s failure to timely comply with the Parent’s subpoenas, as follows: (1) that the DOE made an inappropriate placement recommendation in so far as no correspondence regarding the student and his needs was made between the CSE and the offered school, (2) that the offered program would not have provided the student with a one-on-one paraprofessional or appropriate related services, appropriate instruction by qualified personnel, an appropriate functional grouping, appropriate curriculum, appropriate supports and/or interventions, an appropriate program and parent and training services. (Id., pg. 27)

The Parent called (3) witnesses to testify on her behalf and submitted (23) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness provides the student’s therapy at the private school. (T-238) She is a pathologist. (T-240) She has a caseload of (14) students. (T-241) She has worked with the student since September of 2010. (Id.) She sees the student (4) times per week for half-hour sessions. (T-241) Two of those sessions are typical individual sessions, one is joined by a peer and his therapist and the fourth session is a . (T-242) The student uses gestures, signs, vocalizations, approximations and also picture icons to communicate expressively. (T-244) She is working on having the student use more sophisticated gestures, like pointing, a sign for “more” and “all done.” (T-245) The picture icon system is new this year and she is slowly introducing it. (Id.)

The witness stated that the student has articulation difficulties. (T-246) He has “ ” and the range of sounds that he can produce is highly limited. (Id.) She uses PROMPT to help the student with his articulation difficulties. (Id.) As for the student’s receptive needs, the student can follow a very familiar routine and one step directives with minimal support. (T-248) He requires more support for a novel onestep directive. (Id.) The student can answer basic “what” questions. (Id.) The student can sustain interactions in a therapy session with an adult for approximately (15) to (20) circles of communications. (T-249) He requires scaffolding. (Id.) A “circle of communication” is basically like a back and forth conversation. (Id.)

The witness stated that for the student’s needs, she focuses on his oral facial skills. (T-250-1) She has trained the teachers and teaching assistance in using the picture system the student uses. (T-252) The student receives and therapy. (T-253) She is aware of the student’s need to work on his grip and to begin using a pincer grasp and that he requires support to use different utensils. (T-254) She updates the student’s Parent via e-mail. (T-255)

The witness stated that instead of receiving an “RSA” as proposed by the DOE, it is highly beneficial that his classroom staff and related service providers are familiar with the way in which he communicates and that it is consistent across domains. (T-256) Concerning the DOE’s audio- device, the student may become very excited and upregulated by pushing the buttons. (T-257) At this time, that is not necessarily appropriate for communication purposes for the student. (Id.) The student is not currently responding to yes and no questions about his basic wants and needs. (T-258) As for a “ monitor”, at this time the student is not able to receptively identify feelings that are at a higher level that his skill cluster, so she does not believe it is an appropriate expressive expectation for him at this time. (T-258) There was no cross examination of the witness. (T-259)

The Parent’s second witness is the Program Director of the student’s private school. (T-273) She stated that the private school is a school for children with neurodevelopmental in relating and communicating which includes children diagnosed on the . (T-275) They serve children from age ( ) to ( ). (Id.) They utilize a model called “D.I.R.” (Id.) They have (107) students and (106) staff. (Id.) Eighty percent of the students are diagnosed somewhere on the and (20%) as children with core deficits in relating and communicating either by a genetic disorder, and impairment, or some other diagnosis but with those same . (Id.)

The witness stated that they do four days of training before the staff starts, trainings every Friday and case conferences on Wednesday afternoons. (T-277) They also close for about three staff development days throughout the year. (T-277-8) The student started at the private school in November of 2009. (T-278) She tries to get into each classroom about once a week and sometimes more. (Id.)

The witness stated that the student presents as a child with core deficits in relating and communicating. (T-279) He communicates using approximations, vocalizations and gestures, but it is limited. (Id.) The student walks with what is called the “Y” base of support, so that his legs are far apart and his arms are out because his balance and his proprioceptive and vestibular systems do not work integrated. (T-280) He is either seeking or he can be overwhelmed. (Id.) The student needs things adapted with a lot of s and adult support. (Id.) In terms of his vestibular input, most of us get shaky, dizzy or nauseous when we swing after a certain point, for the student that happens very quickly. (T-282) Using the “body sock”, the trampoline and the “foof chair” gives the student a sense of where his body is in space. (T-283) In the beginning the student’s ability to stay regulated and engaged was very short and fleeting. (T-283-4) Now he is able to stay engaged longer. (T-284) The therapist assesses all of the student’s profile and needs and then works with all of the staff assigned to the student. (Id.)

The witness stated that the student gets certain breaks throughout the day like brushing and joint compressions, jumping on a trampoline or getting deep pressure. (T-285) The IEP’s lack of tools would make it very difficult for someone who did not know the student to implement the diet that could address his needs. (Id.)

The witness stated that there is a team meeting every week. (T-286) The student’s therapy sessions are conducted in the classroom three times per week. (Id.) The student has needs. (T-287) The therapist does obstacle courses with the student. (Id.) The student’s strength and mobility has improved. (T-288) In terms of the student’s “ needs”, he does better with adults than with his peers and is a little bit rigid in his interactions. (T-288-9) They work on trying to keep the student in the interaction and on having him initiate. (T-290) As for the student’s communication needs, they use PROMPT. (T-291) Concerning the student’s daily living skills, the student is not trained, but has shown a big improvement in that area. (T-292) He is on a schedule of about every (20) to (30) minutes. (Id.)

The witness stated that the student has difficulties with skills like zipping and buttoning. (T-293) He can himself, but he gets a lot of . (Id.) Nevertheless, they have seen a lot of improvement in that area. (Id.) To address the student’s handwriting, they use a curriculum called “Handwriting Without Tears.” (Id.) The student is an emerging who does identify some sight words, but is really working on understanding that pictures have meaning. (T-294) The student is now more interested when they aloud and can consistently hold a book appropriately. (Id.) They adapt Balance Literacy, Theater, and from A to Z. (T-

295) They also adapt “Growing with Math.” (T-296) The biggest thing that they have seen is the student’s ability to discriminate between two pictures and understand that pictures have meaning. (Id.) The student has also improved in the number of “correspondences” that he can have. (T-296-7)

The witness stated that they have two educational supervisors who work specifically with the teachers on the academic curriculum. (T-297) The student receives therapy, therapy and and therapy at the private school. (T-298) There are (9) students in his class with one head teacher, three teaching assistants and one paraprofessional. (T-298-9) The head teacher is certified in Florida and has applied for a New York State certification. (T-299) All three teaching assistants have bachelor’s degrees. (Id.) The paraprofessional is an “individual paraprofessional.” (Id.)

The witness stated that the student receives a different amount of one-on-one support throughout the day, but definitely for his academics. (T-301) The student gets his input in the classroom. (T-303) He spits and yells maybe once or twice a week. (T-304) It’s usually one time and with and cues he will stop. (Id.) They give him either or picture choices so that he has options when he gets deregulated, rather than just reverting to what he knows. (Id.)

The witness stated that concerning the possibility that the DOE cannot provide a paraprofessional for the student, the DOE ratio of ( adults and ( students is a large group for the student. (T-305) A group of three is a large group for the student. (Id.) She also has concerns about the training that that an individual paraprofessional may have. (Id.) The training of a crisis management and health paraprofessional is not necessarily the areas where the student needs help, which is in his ability to and to have his system addressed and to remain regulated throughout the day. (Id.) She also has a concern about the student becoming dependent on such a person. (T-306) Concerning the DOE’s position that the student’s related services may have to be after school, the witness stated that one of the things that have been very helpful for him is to be able to have his team work together. (Id.) Additionally, that would amount to a long day for the student, which does not give him an opportunity to be more spontaneous, and a part of his family. (T-307)

Concerning the DOE’s “reward system”, the witness stated that the student does not yet have the skill to build that logical bridge that the “sticker” will get him a reward later. (T-307-8) As for the DOE’s “ meter for happy faces”, the student is not consistently identifying his and that is not something that he understands at this time. (T-308-9) Every family at the private school is assigned a worker and is provided parent support and training every week. (T-309) Tuition at the private school is $92,100 for the 12-month program. (T-310) The student’s Parents have not paid anything towards the tuition. (Id.) The contract that the Parent signed says the Parent is going to seek prospective funding to get the tuition paid and if they are not successful, they are required to pay the entire tuition via a payment plan. (T-310-1)

On cross examination, the witness testified that the private school has an Executive Director who is above her. (T-311) There are (106) staff members, (14) of which are teachers. (T-312) They have (7) therapist, (7) and pathologist, (3) therapist, (6) workers, (2 ½) psychologist (one is part time),

(2) art therapist, (10 music therapist, (10 adaptive education teacher, (1) nurse,

(44) teaching assistants, (2) educational supervisors, a program director, a clinical director, an assistant director, an administrative assistant, a receptionist, a business manager, an admissions director and a drama . (T-313-4)

The witness stated that she has been at the private school since July of 2005. (T-

316) There have been instances where a parent was not reimbursed for tuition by the DOE. (T-316) There were two cases were the parents were not ultimately successful in their case against the DOE, and some cases were they were only partially successful. (T-

317) In the partially successful cases, the contracts with the parents were not renegotiated. (T-321) Those parents are currently making payments. (Id.) Later the witness said that no payments have been made yet, but the corporate office is working with the parents to set up a payment schedule. (T-329) The private school’s parent company is “ .” (T-330) She does not know if the private school has initiated any litigation against those two parents. (T-331)

The witness stated that “ is an intervention under the “D.I.R.” model specifically designed to address developmental levels. (T-331-2) The student’s “ changes from day to day depending on the schedule. (T-332) The student is receiving related services at the private school, three times in “ ”, three times in “ and four times in . (T-333-4) There was no substantive testimony developed during the witness’ re-direct examination. (T-334-6) There was no re-cross examination of the witness. (T-336)

The Parent’s third and final witness is the student’s mother. (T-337) She stated that the student was about months old when she started to notice difficulty raising his head. (T-337) He was evaluated when he was ( ) months old. (Id.) The student was referred to a and Early Intervention. (Id.) He only received therapy because they could not find a therapist. (T-338) The student was about ( ) years old when they put him on the . (Id.) At that time, they wanted him to receive therapy, therapy and . (T-339) When he “aged out”, the DOE recommended that the student be placed in a with teacher support and also related services. (T-339-40) She did not agree with that placement and placed the student in the private school last year. (T-340)

The witness stated that she did not receive a letter or contact from the DOE in November of 2009, seeking consent to re-evaluate the student. (Id. & D-13) She did receive a letter in January of 2010 asking for permission to evaluate the student, which she did sign. (T-341) She attended the CSE meeting on May 27, 2010. (T-343) Also present was the student’s worker, a parent member and the student’s teacher. (T-343) The meeting lasted about (45) minutes. (T-344)

The witness stated that there was no discussion at the meeting about the appropriateness of providing the student with related services after school. (T-344) The IEP goals were reviewed at the meeting. (Id.) A transition paraprofessional was recommended for the student because they felt he needed extra support and help with training and . (T-344-5) She did not receive a copy of the IEP at the meeting. (T-

345) She does not feel that the resulting IEP is appropriate for the student. (Id.) The IEP’s future goals asked him to do things like open a book and turn the pages, which the student was doing . (Id.) She wrote a letter to the CSE advising them that she felt the IEP was inappropriate. (T-346 & P-U) She did not receive a response to her letter. (T-347)

The witness stated that she visit the proposed DOE school in the middle of June. (T-347-8) The Parent Coordinator at the school showed her about three classrooms, which she said was a “ ” but it really wasn’t. (T-348) She showed her the class that the student would be placed in and basically told her that there were no more seats. (Id.) A lot of the students were high functioning and all of them were . (T-349) There were about ( or ( students in the class with ( teachers. (Id.) There was a computer device that half of the time did not work. (Id.) They had a reward system that was like a “ -setting.” (T-350) She was told that they do not tolerate “ ” and “ ’ at the school. (Id.) She does not feel the student would understand the reward system. (Id.) Two of the students in the class were and her son doesn’t even look at words. (T-

351) She was told that sometimes there might be (9), (10) or (11) students in the class. (Id.) She was also told that the DOE school would not be able to provide the related services on the student’s IEP. (Id.) Most of the students at the DOE school get related services twice a week. (T-351-2) There were no paraprofessionals at the DOE school. (T-352) The DOE offered placement is not where the student is academically or . (Id.)

The witness stated that she wrote another letter to the CSE advising that she was placing the student in the private school for the 2010-2011 school year. (T-353 & P-F) The private school is appropriate for the student because they have a based gym which has helped the student a lot. (T-353) The student entered the private school without being able to communicate or gesture as to what he wants and now he can ask for juice, get juice from the refrigerator and goes to the bathroom on his own. (T-353-4) The student can also put on his pants and walk up and down stairs independently. (T-354)

The witness stated that she signed a contract with the private school but has not paid the tuition. (Id.) Her income in 2009 was about $16,000. (Id. & P-G) If she does not prevail at this hearing, she will have to set up a payment plan. (T-355)

On cross examination, the witness testified that the student is low functioning and non- . (T-357) They discussed related services when she toured the proposed DOE school. (T-358) She did not have the student’s IEP with her at the time. (T-359) She signed the private school contract on June 28th. (T-360) The student started to attend the private school after she signed the contract. (T-361) She did tell the private school that she was going to see if she could get funding and that if she could not get funding, she would come up with a payment plan. (T-364) She would like for the student to stay at the private school. (T-366) She believes the student’s related services should be increased. (Id.) The student is not getting the five sessions of and services recommended on his IEP at the private school. (T-367) therapy he receives about three times a week and then with the classroom or with the gym he receives a different amount. (T-368) The student get therapy about three times. (Id.) There was no substantive testimony developed during the witness’ re-direct examination. (T-369-72) There was no re-cross examination of the witness. (T-371)

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07 and 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. (See 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] and 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. (See 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] and 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. (See 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." (See 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." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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." (See 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] and Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 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]; 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] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09). Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087).

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 37071; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007). The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016).

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "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….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 36465). 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." (See Frank G., 459 F.3d at 364; see Gagliardo, 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.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction 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. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at

364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049).

I first turn to the question of whether the DOE has offered the student a FAPE for the 2010-2011 school year. The record indicates that even if the DOE’s May 27, 2010 IEP is adjudged procedurally and substantively sound, the recommended DOE placement could not implement that IEP. The DOE school’s Assistant Principal testified that she would not have been able to meet the student’s related service requirements. (T-135-7 & 138-40) The Parent would have been provided with an RSA to get an outside school provider for those services. (T-138 & 143) There was only a “possibility” that the DOE school could have provided the student with his mandated transition paraprofessional. (T-140-1, 76-1 & D-4) The Parent testified that there were no paraprofessionals at the DOE school. (T-352) She further testified that during her visit to the DOE school she was told that the school could not provide the student with the related services that he required. (T-351)

In order to show a violation of the IDEA based on a failure to implement an IEP, "a material failure" must be shown. (See SRO No. 10-104 citing, A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 [2d Cir. March 23, 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811 [9th Cir. 2007]; Houston Independent Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]; Fisher v. Stafford Township Bd. of Educ., 2008 WL 3523992, at *3 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003] and SRO Nos.: 10-013, 10-008, 09-130 & 09-088) Here, as in SRO No. 10-104, the student did not attend the DOE’s assigned school for the 2010-2011 school year and it is speculative to ascertain the degree to which the DOE would have implemented or failed to implement the student's IEP during that school year. However, so too is the DOE’s contention that such a “speculative” placement offers the student a FAPE. Related services and the requirement of a paraprofessional are “material elements” of the student’s IEP. (See Rowley, supra & Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811 [9th Cir. 2007, holding that a material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled student and the services required by the student's IEP) Subsequent to an IEP’s development, it must be properly implemented. (See 8 NYCRR § 200.4[e][7] & SRO No.: 08-087, emphasis added)

While the DOE can offer an RSA as the means to comply with the student’s IEP, it’s “speculation” as to its ability to provide the student’s mandated paraprofessional is not reasonable and renders its FAPE claim illusory. The Parent does not have the burden to prove the negative, i.e., that the DOE would be unable to provide the student with related services and a paraprofessional at the assigned school. (See SRO No. 10-104, citing M.S. v. New York City Dep't of Educ., 2010 WL 3377667, at *7 [E.D.N.Y. Aug. 25, 2010]) Rather, the burden is on the DOE to prove that it has in reality offered the student a FAPE for 2010-2011 school year. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007)

8 NYCRR § 279.12 states as follows:

(a) The decision of the State Review Officer shall be based solely upon the record before the State Review Officer and shall be final, unless an aggrieved party seeks judicial review. The decision of the State Review Officer shall be binding upon the parties and the State Education Department with respect to the provision of education to the student with a disability involved, but shall not constitute binding precedent in any judicial action or proceeding or administrative appeal in any forum whatsoever.

I decline to follow the holding in SRO No. 10-104 and find that the DOE’s speculation as to its ability to provide the student with related services and/or his mandated paraprofessional, renders the DOE’s offer illusory and amounts to a denial of FAPE for the 2010-2011 school year.

It is important to note that the student’s IEP is also lacking in other areas. The school psychologist, testifying on behalf of the DOE, stated that a “ ” and an “ ” placement were considered for the student, but they were rejected because they did not provide enough one-on-one support to address the student’s needs. (T-76) She also noted that “ inputs” are unequivocally necessary for the student. (T-87) However, the May 27th IEP does not indicate the types of tools which are appropriate for the student, presumably because the student’s needs “change throughout the course of a year.” (T-114) The witness also conceded that the student’s “ and ” would interfere with his , but the DOE did not conduct an FBA or create a BIP to deal with that . (T-82 & D-4) The IEP also lack “present performance levels” for a litany of the student’s goals. (T-95-105) The proposed DOE teacher could not accurately de “proprioceptive input”, “linear vestibular input”, or “circles of communications.” (T-228-9 & 249) The Parent testified that during her visit to the proposed DOE school, she was told that the student’s class might have as many as ( students in the class. (T-351) The Pupil Accounting Secretary, testifying for the DOE, conceded that the student’s class may have had ( students in the class, but assured that there would have been a seat for the student in the school in July. (T180 & 177)

For all of the reasons stated above, I find that the DOE has failed to offer the student a FAPE for the 2010-2011 school year.

I now turn to the question of whether the student’s private school placement is appropriate. Here, the Parent need only demonstrate that the placement provides educational instruction designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from that instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The student in this case is classified as and non- , with significant and . (T-60 & D-4 & D-5) Eighty percent of the students at the private school are diagnosed somewhere on the and the school utilizes “D.I.R.”, a well-researched and specific method of instruction for children. (T-275) To address the student’s needs, the private school uses a “body sock”, trampoline and a “foof chair.” (T-283) To address the student’s communication needs, they employ PROMPT. (T-291) The student’s related services are provided by the private school. (T-298) The student is in a class with (9) students, (1) head teacher, (3) teaching assistance and (1) paraprofessional. (T-298-9) Thus the student can receive varying amounts of one-on-one support throughout the day, which he needs. (T-301) Every family at the private school is provided with a worker and is provided parent support and training every week. (T-309) The student is clearly in a program that specifically addresses his unique needs and that is supported by services that permit him to benefit from that program.

At the private school, the student has shown improvement in being trained. (T-

292) The student can also now feed himself, although he does get a lot of spillage. (T-293) He has improved in the number of “correspondences” that he can have. (T-296-7) The student entered the private school unable to communicate or gesture as to what he wants and now he can ask for juice, get juice, goes to the bathroom on his own, puts on his pants and walks up and down stairs independently. (T-353-4) It is apparent that the private school is providing the student with a reasonable educational benefit. For this reason and all of the reasons stated above, I find that the student’s private school placement is appropriate.

There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. The Parent attended the CSE meeting and visited the recommended DOE school. (T-343, 347-8 & D-4) This was corroborated by the Parent Coordinator who testified on “rebuttal” for the DOE. (T-410-2) The Parent also signed consent forms allowing the DOE to observe and evaluate the student at the private school. (T-341) Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parent. For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that she has met her burden under Schaffer to prevail in her request for tuition reimbursement.

NOW therefore, it is hereby

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent for the cost of the student’s tuition at private school for the 20102011 school year. Dated: August 2, 2011

Corrected Date: August 2, 2011 (Correction made to cover page)

2nd Corrected Date: August 3, 2011 (Reimbursement Order attached)

3rd Corrected Date: August 19, 2011 (Corrections made to Evidence Listing)

_________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED:jj

PLEASE TAKE NOTICE

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

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

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request, 11/17/10, 2 pp. B NYC Dept. DPC Response, 11/22/10, 3 pp. C Interdisciplinary Progress Report, 12/20/10, 12 pp. D Class Schedule, 2010-2011, 1 p. E Enrollment Contract, 2010-2011, 2 pp. F Letter from Parent to CSE, 6/28/10, 3 pp. G Income Tax Returns, 2009, 2 pp. H E-Mail Correspondence , Parent, 3/16/11, 1 p. I E-Mail Correspondence – DOE, 3/16/11, 1 p. J E-Mail Correspondence – Parent, 3/17/11, 1 p. K E-Mail Correspondence – DOE, 3/18/11, 1 p. L E-Mail Correspondence – DOE, 3/18/11, 1 p. M E-Mail Correspondence – DOE, 3/18/11, 1 p. N E-Mail Correspondence – DOE, 3/18/11, 1 p. O E-Mail Correspondence – DOE, 3/18/11, 1 p. P E-Mail Correspondence – DOE, 3/18/11, 1 p. Q E-Mail Correspondence – DOE, 3/18/11, 1 p. R E-Mail Correspondence – DOE, 3/21/11, 1 p. S E-Mail Correspondence – DOE, 3/21/11, 2 pp. T District 75 Placement office Referral Form, Undated, 1 p. U Letter from the Parent to CSEe Chairperson, 6/21/10, 1 p. V Visitor’s Log Sheet, 6/23/10, 1 p. W Class Attendance Room 106, 3/27/11, 1 p.

DEPARTMENT OF EDUCATION

1 Petitioner’s Complaint, 11/17/10, 2 pp. 2 Department’s Response, 11/12/10, 3 pp. 3 Notice of IEP Meeting, 3/9/10 and 4/23/10, 2 pp. 4 IEP, 5/27/10, 16 pp. 5 Minutes of CSE Meeting, 5/27/10, 1 p. 6 Dept. Classroom Observation, 3/8/10, 2 pp. 7 Interdisciplinary Progress Report, 5/20/10, 10 pp. 8 E-Mail Correspondences, 1/19/11, 6 pp. 9 FNR, 6/14/10, 1 p. 10 Bilingual Evaluation Report, 4/11/08, 4 pp. 11 Consent for Re-Evaluation, 11/20/09, 1 p. 12 Consent for Re-Evaluation, 1/11/09, 1 p. 13 E-Mail from to , 1/20/10, 1 p.

IMPARTIAL HEARING OFFICER

I Motion in Limine – Parent, 3/22/11, 4 pp. II Motion in Limine, Opp. – DOE, 3/25/11, 6 pp. III Motion in Limine, Reply – Parent, 3/28/11, 6 pp. IV Calendar Entry-Parent Coordinator , 6/23/10, 1 p.