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Special Education Law
DECISIONParent PrevailedSEL No. 2011-ih-419

New York City Department of Education, Impartial Hearing Decision

June 6, 2011·Rona Feinberg·3

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth: District: 3 Hearing Requested By: Parent Date of Hearing: March 29, 2011

April 6, 2011 Hearing Officer: Rona Feinberg, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 29, 2011

Attorney — Student

Mother — Student

Attorney — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 6, 2011

Attorney — Student

Mother — Student

Attorney — DOE

Assistant Principal- (via telephone) — DOE

Ph.D., Education Coordinator- Center — DOE

Education (via telephone) — DOE

Lead Teacher- Center (via telephone) — DOE

INTRODUCTION

On March 29, 2011 and April 6, 2011an impartial hearing was conducted pursuant to the Individuals With Disabilities in Education Act (“IDEA”), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, (“the child”). The hearing commenced at 10:05 a.m., 1:05 p.m. respectively and was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

The child, who is classified as having “ ” is years eight months old and attends the Center (“ ’). In a letter dated January 6, 2011, the child’s parents, by their attorney , Esq., of & Associates, filed a due process request for an impartial hearing. In that request, the parents maintained that the Department of Education had not offered the child a Free and Appropriate Public Education (“FAPE”) for the 2010-2011 school year and they requested prospective tuition payment for the 12 month school year at , including related costs. In particular, Mr. asserted that the child’s Individualized Education Plan (“IEP”) for the 20102011 school year was procedurally flawed, that the recommended placement was inappropriate to meet the child’s educational needs and that the equities favor the parents (DOE Ex. 1). In its response, the Department of Education maintained that the IEP includes appropriate goals and that the recommended placement was reasonably calculated to enable the child to obtain meaningful educational benefits (DOE Ex. 2).

The impartial hearing request was filed on January 6, 2011 and I was assigned as the impartial hearing officer on that date. The original compliance date was March 17, 2011. On February 4, 2011 the compliance date was extended April 16, 2011 pursuant to a request by the parents. The hearing was held on March 29, 2011 and April 6, 2011. On April 6, 2011 the compliance date was extended to May 16, 2011 pursuant to a request by both parties. On April 29, 2011 the compliance date was extended to June 15, 2011 pursuant to a request by the parents.

THE PARENT’S POSITION

, Esq., an attorney at & Associates, represented the mother at the hearing. Mr. alleged that the District did not provide the child with a FAPE for the 20102011 school year, that was an appropriate placement and that the equities of the case supported the mother.

THE DEPARTMENT OF EDUCATION’S POSITION

, Esq., represented the Department of Education. She asserted that the Department of Education provided the child with a FAPE for 2010-2011 school year, that was not an appropriate placement for the child and that the equities of the case supported the Department of Education.

THE EVIDENCE AT THE HEARING

THE DEPARTMENT OF EDUCATION’S CASE

is a school and has been employed by the Department of Education for seven years. She currently works at and . Ms. has a Master’s Degree and Professional Diploma from Fordham University and is New York State certified as both a school and a . She is currently enrolled in a program for an educational leadership degree at ( : 7-9, 36-37).1 Ms. is familiar with the child in that she helped create his IEP during the “Turning

” process. The at was having surgery at the time and Ms. was asked to assist with her caseload ( : 9-10). On January 13, 2010, prior to the IEP meeting, Ms. observed the student for 90 minutes at the Center (“ ”). During that observation, which took place both in the classroom and in the gym, the child required the assistance of an assistant teacher in order to find his picture and place it on an activity line. The child did not engage with any other students and engaged in parallel play rather than cooperative play. He also exhibited self- . On that date Ms. helped the student’s teacher complete a Assessment System for Children (“ ”) ( : 11-14, 39-42 DOE Exs. 7A, 8)

Citations to pages 36-93 refer to Mr. ’s cross-examination of the witness.

Ms. completed the child’s Turning Summary Report (“Turning ”) ( : 11, 38-43, 94; DOE Ex. 11). The Turning indicated that the child had been receiving services in a class as well as and therapy and therapy. Although the Turning did not include the fact that the child was receiving , Ms. stated that the CSE team was aware of that fact. Ms. completed the Post Observation Teacher Interview portion of the Turning based on her interview with the child’s teacher, ( : 87-89). That document indicates that Ms. recommended that the child be placed in a class in a general education school ( : 89; DOE Ex. 11 at 5).

The IEP meeting was held on March 24, 2010 and Ms. identified the participants at the meeting. The education director from the child’s , , testified by telephone and provided input. All of the participants remained for the entire meeting ( : 16-17, 94-95; DOE Ex. 3 at 2).[2]

To prepare for the IEP meeting the CSE team had the Turning , the school Observation/Interview, the Teach Rating Scales Report, the History Update prepared by , the worker at , the CSE Educational Report, the CSE and Report and the CSE Therapy Report ( : 15-16, 48; DOE Exs. 5, 6, 7, 7A, 10, 11). Ms. was not familiar with the either the Evaluation or the Progress Report from New York Therapy Placements and she “did not know” if they were relied upon by the IEP team ( : 90; DOE Exs. 12, 14). Ms. reviewed the CSE Educational Report (“Report”) dated January 4, 2010. The Report indicates that that while the child was in a class at there were two to three additional staff members in the classroom at any given time ( : 65-66; DOE Ex. 5 at 1). The Report also states that the child “loses focus and gets distracted by other activities or peers when he first enters” and that the child was redirected during those times by the use of “icons.” However, there is no mention of icons in the IEP ( : 66-67; DOE Ex. 5 at 2). In addition, the Report states that the child rarely requests to use the and sometimes has accidents on himself. Ms. did not recall whether that fact was discussed at the IEP meeting, and that that issue does not appear on the IEP. In addition, the Report states that the child is “given food in small portion to avoid him from putting too much food in his mouth and from choking and vomiting”; however, that information does not appear in the IEP and there is no annual goal to address that issue ( : 66-68, 96; DOE Ex. 5 at 2). While the IEP reflects the information on the Report that the child’s “gross play often includes stereotypic and hand , as well as screams and vocalizations,” the IEP does not include anything about “what sets the child off” ( : 68-70, 75-76; DOE Ex. 3 at 4, Ex. 5 at 2).

The Report also indicates that the child “often seeks input to his body and is on a daily routine that provides him with different types of input throughout the day.” That issue is not included on the IEP and Ms. did not recall whether the information was discussed at the IEP meeting and ( : 69-70; DOE Ex. 5 at 3). And, the Report indicates that the child was in a classroom with some students more advanced than he was and that those peers “could pose as role models for him when it comes to that .” Ms. was aware of that fact during her observation of the child. She opined that it was important for the child to have some students in his class who could pose as role models for him because “students learn from each other” and that such positive could serve as a model for him ( : 71). The “summary” section of the Report states that the child “requires individualized attention in order to complete daily routines and fully participate in classroom activities” and that he is receiving “home-based services that with his day school have been extremely effective in targeting his areas of deficit and functionalizing as well as prioritizing his skill acquisition.” Ms. did not recall whether the IEP team considered providing the child with home-based services ( : 73; DOE Ex. 5 at 4). Nor did she recall whether the child’s teachers discussed that an ABA model was being used in his class or what type of peer and models he should be exposed to in the class that was eventually recommended for him ( : 72). Ms. discussed the child’s academic and characteristics as indicated on the IEP, which noted that the child had made some improvement up to that date (DOE Ex. 3 at 3). She read the information on that page and testified that hit was based upon the reports and assessments that were conducted as part of the Turning process ( : 18-19; DOE Exs. 5, 7, 8, 11). Ms. then addressed the child’s and performance as indicated the IEP and stated that the information was developed based on the and the classroom observation ( : 20-21; DOE Ex. 3 at 4, Exs. 7A, 8). The child’s health and development as reflected on the IEP indicate that the child was but that his vision and hearing were reported to be within normal limits (DOE Ex. 3 at 5). This information was based on the History Report completed by the and the child’s mother ( : 21-22; DOE Ex. 5 at 5, 10). The team did not consider whether the child should receive adaptive education because in the recommended placement, which is a District 75 school, “their education is usually adaptive” ( : 22). The health and development page on the IEP was completed by the therapist and was submitted to the IEP team with the therapy evaluation and report ( : 22-23; DOE Ex. 3 at 6). It was completed on January 4, 2010, the same date as the evaluation but the date of the IEP meeting was added to the page ( : 23). The pages of the IEP were prepared prior to the meeting “most likely by the person [who] was currently seeing” the child at the school and were provided to the team with a “report.” There are no annual goals for on the IEP; rather, the IEP includes only short-term objectives for ( : 28, 87-88; DOE Ex. 3 at 9-10).

provided the CSE team with goals pages for the IEP. Ms. did not recall how many goals pages the school provided or whether the IEP team included all of those goals on the IEP ( : 49). Ms. then discussed the annual goals as they appear on the IEP for math, reading and writing and stated that these goals “may have been prepared by the team” ( : 26; DOE Ex. 3 at 7-8). She explained each goal ( : 26-28). In particular, she testified that the child’s annual math goal was based on reports that were available to the IEP team at the meeting ( : 49-50). She acknowledged that the annual goal stating that the child “will learn one-to-one correspondence, counting, recognizing numerals, etc.” does not indicate the child’s level of mastery at the time the goal was created, even though it indicates that the child “will be able to improve basic mathematics concepts skills by 50%.” Nor does that goal include any short-term objectives ( : 50; DOE Ex. 3 at 7). The annual goal stating that the child “will be able to improve math reasoning skills by at least 50% “ also does not include any thencurrent level of mastery or any short-term objectives ( : 51-52; DOE Ex. 3 at 7). Similarly, there is no level of mastery or short term-objectives for the annual goal that the child “will be able to improve numerical operations accuracy skills by at least 50%” ( : 53; DOE Ex. 3 at 7). Nor is there any level of mastery for the math goals indicated on page 18 of the IEP where the annual goals are repeated ( : 50; DOE Ex. 3 at 18). Ms. did not recall whether the participant from recommended that the child’s math goals be limited to counting, identifying and distinguishing between shapes and the sequencing of numbers or whether the school provided goals and objectives addressing solely those areas to the IEP team ( : 52-53). Neither of the annual goals for reading on the IEP includes short-term objectives or a then-current level of mastery, even though the reading goal indicates that the child “will be able to improve reading comprehension skills by at least 50% ( : 55-56; DOE Ex. 3 at 7-8). Ms. did not recall whether provided any academic goals to the IEP team that were not included on the March 24, 2010 IEP ( : 63-64). The therapy and the therapy goals on the IEP were provided by the child’s therapists who completed the evaluations ( : 28-30 DOE Ex. 3 at 11-13). The CSE and Report indicates that the child often has “difficulty attending to therapy tasks, making his overall communicative abilities difficult to access.” It also delineates specific negative that the child displays when he is frustrated and includes his difficulty and attending during therapy sessions ( : 74-76; DOE Ex. 6 at 1). Ms. did not know whether the team considered this information at the IEP meeting, but she noted that the IEP recommends that the child “benefits from direction and redirection,” as well as ( : 76-77). However, she did not recall whether the IEP team considered providing the child with a one-to-one paraprofessional to address his issues ( : 77). The CSE Therapy Annual Report was provided to the CSE for the IEP meeting but Ms. did not recall whether the IEP team relied upon this document at the meeting. The document indicates that the child “presents with limited frustration tolerance, attempting to hit and scratch when aggravated,” that he “requires supervision during mealtime to prevent and an increased ,” and that he does not indicate his need to use the when he is and ”( : 78; DOE Ex. 7 at 2). Ms. explained that the therapist provided the CSE team with her own Health and Development page for the IEP and her own goals for the child ( : 78-79; DOE Ex. 3 at 6). After reviewing the Health and Development page of the IEP Ms. noted that the therapist “failed to mention most of what is in her report” ( : 79-80: DOE Ex. 3 at 6). Ms. first testified that the IEP team determined that the child did not require a al Intervention Plan (“ ”) because it felt that the child’s academic and needs could be met in the recommended class setting. She stated that if, once the child was in the recommended setting it was determined that he required a , it would be “put in place at that time” ( : 21, 64). Later in her testimony she stated that she did not recall whether a had been considered and rejected or whether the issue of a was not raised at all ( : 74).

The “Summary of Relevant Results” on the Child Outcomes Summary report prepared by members of the CPSE and the child’s parents, indicates that the child “does not engage in play independently” and that his “inappropriate s interfere with his attention to playtime.” It also indicates that the child is “able to ascend stairs while holding” on to the handrails and that he requires prompting into order to walk to the bathroom stalls, pull his pants down and sit on the . None of that information is included in the IEP ( : 86-87).

Other programs that the team considered for the child were the general education setting and a education class in a community school. Both programs were rejected because they did not meet the child’s educational needs at the time ( : 30-31; DOE Ex. 3 at 15). Ms. explained why the recommended program would have met the child’s specific needs ( : 31). The team recommended the weekly related services of one session of individual and two sessions of group , two sessions of therapy in a group, one individual and one group session of and therapy. The recommendations were based on his current evaluations as completed by his therapists ( : 32). The team did not recommend home-based educational services; Ms. did not recall whether the child was receiving home-based services during the 2009-2010 school year or why the team did not recommend such services for on the IEP ( : 46-47).

Ms. recalled that everyone that took part in the meeting “did share in the meeting” and had “input.” She did not recall whether the parent at any time disagreed with an aspect of the IEP ( : 33). As a result of the meeting the child was classified as having . The recommendation, deferred to September 2010 was for a class in a school with related services; Ms. agreed with the team’s recommendation and she recalled that everyone who signed page two of the IEP was in agreement ( : 17-18, 45, 91).

After the meeting the “packaging” of the case was done by the school team at and the family worker, and she did not know when the mother were given a copy of the IEP ( : 23-24). However, a box checked off on page two of the IEP indicates that the IEP was given to the parent ( : 24-25). Ms. was with Ms. when Ms. filled out and signed the Child Outcomes Summary Form. She did not recall when the form was filled out but testified that the whole IEP team was likely present at that time, completing the “package” ( : 84-85; DOE Ex. 9). Ms. did not contact Ms. about the child after the March 24, 2010 meeting ( : 92-93).

has been employed by the Department of Education for 16 years and has worked at , a District 75 multi-site education school, during that time. She held various positions at the school and has been the assistant principal for four years ( : 104-106, 147-148-150).3 Ms. has a Master’s Degree in education with a focus in the area of “ ” and she has a School Administration and Supervision degree. She has education teacher’s license and is currently working toward a license in administration and supervision ( : 106-107).

Ms. listed her responsibilities at the school and noted that she “rotates between sites.” She also specified her supervisory responsibilities, including conducting “cohort meetings” with groups of teachers in specified areas to look at student work and “dig deeper in terms of curriculum, and assessment, and next steps for students” for professional development ( : 105, 119-121). Ms. also supervises the related service providers in that she is a “liaison between and the District supervisors of the related service disciplines” and also works on their schedules ( : 121-122).

has eight locations. They include self contained programs in , and settings and inclusion programs at the elementary, middle, high school and college levels ( : 107, 148). at is located at Street and it shares the building with , a general education school and with a small school ( : 107, 153). The site has 55 students and is on the third floor of the building ( : 151-152). Ms. described the layout of the school, including the cafeteria which is on the first floor. She explained that the school shares the cafeteria with about 50 students from the elementary program during the lunch period ( : 109, 152). Ms. testified that for a child who is overwhelmed by having lunch in the cafeteria with several students, the school would “including “look at positioning and altering” the cafeteria environment to make the student “feel comfortable” ( : 110).

The school provides parent training and in that the parents can speak with the guidance counselor. There is also a family worker and parent coordinator both of whom are able to assist the parents and refer them to agencies for assistance as needed ( : 117). Ms. described the parent training that took place during the current school year ( : 118).

Citations to pages 147-165 and 168-169 refer to Mr. ’s cross-examination of the witness.

If a child is offered a seat at the school and the parents decide to visit, appointments are “typically set up with the lead coverage teacher at the site,” in this case, . Ms. , who has been in this position for “at least eight years,” would arrange for a tour and provide the parents with reliable information about the school ( : 157-159). Ms. did not “have a concrete verification” that the child’s mother met with Ms. but she has no knowledge that the parent did not visit ( : 146, 157,

160). [4]

Ms. explained the “intake” process for a newly enrolled student ( : 129-130). She testified that “the hope is” that before a child begins at the school the school would receive the child’s “full packet,” including his or her cumulative records, IEP and any evaluations. However, the school does not always receive those documents prior to a child’s enrollment ( : 164-165).

Ms. reviewed the Final Notice of Recommendation for the child (“FNR”) and testified that would have been able to offer the child a seat in the class at the site. At the beginning of September 2010 there were four classes for students in through the grade; the ages of the students were mixed but were within a 36 month range in each class. If the child started on the first day of the school his teacher would have been , who has a education license. That class had two paraprofessionals -- a classroom paraprofessional who has been at the school for 11 years and a one-to-one management paraprofessional who has been at the school for 29 years ( : 122-126, 128-129, 155-156; DOE Ex. 4).[5] On the first day of school there were and grade students in the class all of whom were in a 36 month age range ( : 127-128, 163).

Ms. stated that she reviewed the child’s IEP prior to the hearing and that the school would have been able to implement the child’s IEP, including on site certified related service providers to implement the recommend related services ( : 124-125,

138-141; DOE Ex. 3 at 16). She explained that if at any time there are more services mandated for a student than the number of available provider hours, she would “reach[ ] out to contractual or Related Service Agreement (“RSA”) agencies” to secure additional providers to come to the school. In September 2010 there was such a shortage. If no related service provider was available, the school would issue an RSA to the parent ( : 139, 155, 165-166).

Based on her review of the child’s IEP Ms. discussed the child’s academic deficit areas and explained how Ms. ’s class would have been appropriate to address these deficits ( : 141-144, 161). She also testified about the child’s or deficits as identified on the IEP and explained why Ms. ’s class would have been appropriate to address those needs ( : 144-145). She opined that, based upon her observations of Ms. ’s classroom and her knowledge of the students in that class, the child would have “fit in” with those students ( : 145). Ms. testified that she does not believe a child can learn though only one methodology. She explained the goal of the school’s curriculum, noting that the teachers uses a “ approach” to instruction, “pull[ing]” from “best practices,” and she gave an example of that approach ( : 130, 134). The school also uses a “whole ” model.” She described how the school assesses students to determine the best approach for the individual child ( : 1231-134, 163). Ms. explained the concept and importance of “generalization” and described how it is addressed at the school ( : 135-136). She testified about the importance of for children who have and she described how Ms. addresses in her classroom ( : 137138). When asked how the school would address a child who learns best from “discrete trial instruction,” she replied that the school cannot provide that type of instruction to a student “all day long.” If discrete trials are used in any classroom it is provided on a “rotational” basis for a period of 10 to 15 minutes ( : 163-164, 168-169).

THE PARENT’S CASE

is the child’s mother ( : 253). The child was born on September 27, 2005 and he developed appropriately, “hit[ting] every milestone.” When he was years-old Ms. , who is a teacher, noticed that the “had words” but that he was not using sentences like a typically developing child of his age ( : 253). The child was referred to the Committee on Preschool Education (“CPSE”) and he received and therapy and was assigned a Education Itinerant Teacher (“SEIT”) who was trained in ABA. The SEIT services were provided at Head Start at the School. After six months the child entered and also received ABA and at home, all at the recommendation of the Department of Education ( : 254-255). The child was “doing great” with those services. Ms. explained that when the child was years-old he started “ ” consistently, “all day every day.” However, while the child still , the ABA “cut the down” and his improved ( : 255).

In March 2010, Ms. participated in the IEP meeting. The CSE “went over it” with her and she asked for ABA. The CSE told her they could not give the child ABA or home services. She explained that the child was “doing great” with ABA at home and , and the CSE told her the child would no longer be receiving those services ( : 256257). She told the CSE that she did not have any schools to “look at” for the child. At that point, “ ” gave her the phone number of the School, and told her that it was “pretty good.” The CSE told her to visit the school and call the placement officer if she liked it ( : 257-258). Ms. called the school that same day and she and her brother went to visit the school the following week ( : 258-259). She did not meet with the principal of the school but spoke with the teachers who asked if the child can talk. The teachers were "very excited" when she replied that he could speak. They said that they did not have any students who could speak and that there would most likely be no students who could speak in the class for 2010-2011. Therefore, the child could serve as a “model” for the other students. Ms. asked who would serve as a model for the child because of his “ s.” One of the teachers said that the “ s” go away as the child gets older. Ms. did not believe the program was appropriate for the child and she waited to see what placement would be recommended ( : 260, 278).6

Citations to pages 274-280 refer to Ms. cross-examination of the witness.

When the child was turning Ms. “kept calling” the Department of Education to see what schools to look at but she was told “not yet, they’re going to contact you.” As summer approached she was “nervous” because she did not “get anything” and in April 2010 she started looking on line to see “what was out there for him,” and found ( : 255-256, 268-269, 274). In June Ms. received an FNR and visited the recommended school that same day ( : 260-261). When she arrived at the school she met with , who took her around the school. She showed Ms. four classes and they were permitted to enter three of them ( : 261-262).

In one of the classes a child was “doing something” and the teacher said that “he’s so stupid.” Ms. “rushed” her out of that room and remarked that he teacher was “probably talking to someone else or something” ( : 262). They then went into another classroom in which one of the students with “kept calling the teacher.” Ms. finally said, “excuse me, I think he’s calling you” and the teacher replied, “oh, he can wait.” Ms. then told Ms. about lunch and said that everyone goes to lunch at the same time. When she asked about the bathroom, Ms. told her that they were not permitted to go into the bathroom. When she asked how the children get helped because the child is not completely “ ,” Ms. replied that “they help each other out” because they are not allowed to go into the bathroom. Ms. said that the child will have an “accident” and Ms. replied that the child can “change himself” but that they are “just not allowed to go in there with them” ( : 263-264). Ms. left the school “very upset” because the school was not appropriate ( : 264).

In a letter dated June 9, 2010, Ms. informed , the placement officer indicated on the FNR, that she believed the placement was inappropriate and she asked for other recommendations that might be appropriate for the child ( : 264, 277; Parent’s Ex. A). Ms. did not respond to the letter but she “eventually called” to ask if Ms. was going to accept the placement. Ms. told her that she had sent a letter indicating that the placement was not appropriate and she explained why she believed that it was inappropriate. Ms. told her that she was “running out of time” and Ms. asked if there were any other schools for her to look at because she would “definitely be willing to look at other schools” ( : 265). She told Ms. to come to the office and she would give her a list of schools in all of the boroughs to see if they would let her in, but that she did not believe that the schools would permit her to visit ( : 265-266; Parent’s Ex. C). Ms. subsequently called some of the schools on the list but the schools did not answer and did not call back. One of the schools indicated that it used ABA but when she called she was told that the school was closing for the summer ( : 266-267). In a letter dated July 19, 2010 Ms. asked Ms. for information about the ABA school, at , including a profile of the class that would be recommended for the school ( : 267, 277; Parent’s Ex. B). Ms. did not hear from the Department of Education after July 19th during the summer of 2010 ( : 268).

In the meantime, Ms. went to for an intake interview in June 2010; the child was accepted for admission in August. Ms. signed the contract in August 2010 and gave a $1,000.00 check payment from her father’s account ( : 269270, 274-276). In September 2010 she was billed and made a $9.000.00 credit-card payment on her father’s credit card. Ms. explained that she questioned the school about the request for the September payment. At that time the school informed her that when she signed the contract the school thought she was a “ ” case, meaning that she would pay the tuition and request reimbursement, rather than a “ ” case, meaning that the school “puts up the funds for” the child ( : 270-272, 275-276, 278-279). In December 2010 she signed another contract with the school ( : 272; Parent’s Ex. D). That contract indicated that she intended to seek prospective funding from the New York City Department of Education for the child’s tuition. The contract also stated that Ms. confirmed that the deferred amount of the tuition is “properly due and payable to ”( : 279-280). The school explained that if she did not prevail at the hearing she would owe the full year’s tuition to the school; the school did not say anything about the consequences if she was not able to pay ( : 280). She stated that the tuition for the school for the 2010-2011 school year is $84,000.00. However, the contract indicates that the tuition is $89,958.33 ( : 272; Parents’ Ex. D at 1). Ms. ’s name is not on her father’s checking account or his credit card ( : 276).

Ms. goes to observations at the school and is in constant contact with the child’s teacher and Dr. ( : 273). She testified that the child “has been doing great” in school this year. While he e still has “ s” and “aggression because he gets upset,” his and space awareness have improved and he has increased the time he is able to “sit” from one minute to minutes. Thus, she opined that has provided the child with an educational benefit during the current school Year ( : 273).

, Ph.D., has been the Educational Coordinator at since August 2009 and she oversees and supervises the program at the school ( : 170, 175). Dr. has a Bachelor’s degree in English and ary education, a Master’s Degree in disorders, particularly education, a Master’s Degree in philosophy and a Ph.D. in education with an emphasis in ABA. She has a permanent New York State license in education and both a Supervision and Administration certificate and a School District Administrator certificate. Dr. is also a Board Certified Analyst (“BCBA”) ( : 172-173).

Dr. has worked with students on the spectrum and has worked with a range of students in education ( : 173-174). She described her duties and responsibilities as education director at ( : 175-176).

is primarily an ABA program that uses a one-to-one teaching model. It is a “transdisciplinary program” for children with disabilities in that and therapy, therapy and ABA “are all collaborative and they cross over each other’s boundaries and transcend boundaries to create an appropriate and effective program” for its students ( : 176-177, 177). Dr. described ABA as a scientific procedure derived from the principles of which are systematically applied to improve ly-significant to a meaningful degree” and to demonstrate that those procedures were responsible for improvement in ( : 180-181). She testified that the school “collects data” and explained how that data is collected. The data is analyzed every day to see if the things that the teachers and instructors are doing with the students are effective in changing any areas of a student’s . And, the teachers “move on” with a student only when the data shows that the student is “actually succeeding” and the staff determines which instructional strategies have “worked well” ( : 181-184). Dr. also explained why the ABA model is appropriate for instructing students with ( : 189).

Each classroom at has six students, one lead teacher and six ABA instructors. For purposes of generalization the students rotate through the instructors and the teacher within the classroom. The teacher oversees program implementation, IEP goal implementation, and problem solving with any challenging issues or s( : 177).

The program at includes academic or pre-academic areas and variety of skills and self-management skills, which include daily living skills and leisure skills. Some students who are not verbal use assistive technology devices ( : 178-179). Dr. described the parental involvement programs in the school. She conducts parent training workshops twice a month and the school offers home visits. There is also a twice monthly parent support group that is conducted by one of the analysts who is also a licensed and certified worker and teacher ( : 179-180; : 241).

Dr. described the application and intake process for prospective students, which takes approximately four to six weeks. The process includes an assessment that includes some of the measures and goals that are found in the of Basic and Skills (“ ”) and a review of various “reports” provided by the parents ( : 184-187, 213). She explained that new students are grouped according to their age, their academic, communication and and al “repertoires” ( : 187-188). There are 50 students enrolled in the school ( : 197).7 Dr. and the lead teachers, along with the supervisory staff and some of the BCBAs develop the academic

Citations to pages 196-214 and 221-222 refer to Ms. cross-examination of the witness. curriculum for the school. The curriculum has a variety of goals, which Dr. explained ( : 202).

Dr. is familiar with the child in that she participated in his admission process. The child’s intake process began in April 2010 and the admissions committee met during the summer. She has observed him in “almost every environment” at the school ( : 191-192, 212). She noted that at the time of admission the child had academic, skills and that, while “delayed,” were “commensurate with other students at the school” and the admissions committee felt that there were “similar groupings” for the child ( : 192). The child also had “some challenging like swatting at the staff” and “pinching to attempt to escape tasks.” The committee believed that the “verbal components” of the program would “be really good at addressing some of his ” and his challenging s( : 192-193). She described the “verbal ” program that is a component of ABA and explained why the committee believed it would benefit the child ( : 193-194).

In September 2010 the child was placed in Classroom Number 3; the lead teacher in the class is ( : 195; : 223, 225, 229-230). Ms. has a Bachelor’s Degree in and a Master’s Degree in early childhood and education. She is certified in New Jersey for education and school through grade early childhood education. She has experience working one-to-one with children with using ABA and currently does home therapy as well ( : 224225).8 She has been at since 2007 when the school opened. She described her duties and responsibilities as lead teacher in the child’s class, including collaborating with the related service providers ( : 225-226). She noted that “a lot” of the related service providers push in and she observes them and takes notes ( : 226-227).

There are six students in the child’s class and seven adults, including Ms. . The six ABA instructors are trained at for a week prior to the beginning of the school year and the supervisors hold weekly meetings that the staff is required to attend ( : 228-229). All of the instructors have undergraduate degrees and one is a certified teacher who is licensed in Ohio in early childhood education. Another of the instructors is currently enrolled in a Master’s Degree program in New York State ( : 228-229).

The students in Ms. ’s class range in age from to and most of them are working on pre-reading, math and writing skills. There is a “mixture of vocal and non-vocal students” whose s include stereotypy, attending issues, noncompliance and some aggressions; two of the students use a Picture Exchange System (“PECS”) ( : 228, 246-247).9 Ms. explained the procedure she followed with the child when he first entered her class, including administering the , which helped her to create a program for the child ( : 230-231). She noted that at the outset the school identified that the child showed a “large amount of noncompliance” that was in the form of aggressions towards teachers, such as , , and loud and ( : 231-232, 240). In academics, the child has a “wide range” of receptive and expressive vocabulary, but is not able to demonstrate these skills consistently across different instructors. Ms. described what was done to help the child generalize “across the board” ( : 232-233). She also explained how reading comprehension was addressed with the child at the beginning of the school year in September 2010 ( : 249-250).

Ms. testified that she divides her instructors into two teams, and that she and the instructors rotate among three children in a morning and afternoon session. Thus, within the classroom the child works primarily with three adults in any given day. The instructors who do not work with particular children interact with those students during lunch and leisure skills time ( : 232-233, 244-245).

The school day at begins at 8:45 a.m. and ends at 2:45 p.m. The child’s mother or grandmother brings him to school in the morning and the teacher and ABA instructors are waiting for him outside. One of them holds the child’s hand and brings him upstairs to the classroom. The child engages in a “variety of s” and coming into school “can be very challenging for him.” Therefore, for the past two

8 Neither Ms. nor the ABA instructors in her class are licensed in New York State. Nor do any of them have board certification in ABA ( : 243-244).

Citations to pages 243-250 refer to Ms. ’s cross-examination of the witness. months he has been escorted upstairs by two adults ( : 200; : 233-234). All six students in the class gather for the morning meeting, each with the one-to-one support of an ABA instructor ( : 204, 214-215; : 234). The meeting is followed by one-to-one instruction, during which the child works through his programs including academics, reinforcers and self-management ( : 234). The one-to-one instruction takes place in the child’s “ area,” which is along the wall of the classroom ( : 246). At about 10:15 a.m. the class has “snack time” during which the child has an opportunity to interact with his peers and work on feeding skills and related independence ( : 234-235). Snack time is followed by the gym during with the child uses a “choice board” to pick out three activities he would like to do in the gym; that period is followed by addition one-to-one instruction in the classroom ( : 235).

The hour period for lunch and leisure skills is the only time that the student to teacher ratio is -to- ; during that time the child works on and self-management skills ( : 199-200; : 235, 245).[10] After lunch there is more -toinstruction. Ms. described the specific skills that are addressed with the child during his individualized instruction ( : 236-238). At about 2:15 p.m. the students meet in a group for “art, story, sensory or music” Dr. described the dismissal process, noting that each student is accompanied individually from the classroom to the school bus or to his or her parent by either the teacher or one of the ABA instructors ( : 199-200; : 235-236). Throughout the day the child also has his related services according to a schedule ( : 235).[11]

Dr. explained “leisure skill instruction” as it applies to the child’s specific schedule ( : 202-204). She also testified that child emitted a “variety of different s” since he entered the school and that the school did a Functional Assessment (“FBA”) for the child, which she described. She explained that the term “point of frustration” refers to the onset of any of the child’s “target s” ( : 206-208). Those s are , , , and .” The FBA indicated that the s most often functioned either as “escape demands” related to particular programs or to “gain access to attention,” and Dr. indicated some of the antecedents to those s( : 208-209). Dr. testified that she has only known the child in the context of an ABA school and she believed that ABA is an appropriate methodology for addressing some of the child’s s and his academic needs ( : 211).

Ms. described the parent’s involvement with the child’s education at and noted that she had visited the child’s home ( : 241). During that visit she and the child’s parents addressed a lot of the child’s and noncompliance in walking and transitioning to school, and she and the mother thought of a “plan” that has been “carried over to school ( : 241-242).

Ms. opined that the child has made “slow” academic progress during the 2010-2011 school year, noting that his “impeding s” interrupt much of his . Therefore, the staff is “focusing a lot on his compliance and ,” and she explained the targeted s and the methods used to address the child’s s( : 238240). She opined that if the team did not address the child’s impeding s they would “interrupt his throughout the day” and he would be able to “attend, sit appropriately” or “make any kind of progress with any of the programs” that were in place ( : 239-240). Ms. “definitely” believed that the child gained an academic benefit at during the 2010-2011 school year. She noted that the oneto-one support and generalization provided by the school helped the child be able to “attend more and to learn consistently.” She also stated that the school’s adeptness at tracking the child’s and progress has enabled the staff to develop different tactics that may work better for the child ( : 242).

some of the students at ( : 220-221). The child has not met the criteria for either of these

FINDINGS OF FACT AND DECISION

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment. 20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005, citing Rowley, 458 U. S. at 203.

The legal standard applicable to a request for reimbursement for educational services, such as in this case, is well established. A Board of Education may be required to pay for educational services obtained for a child by the child's parents, if: 1) the services offered by the Board of Education were inadequate or inappropriate; 2) the services selected by the parents were appropriate; and 3) equitable considerations support the parents' claim. School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 (1985). The Board of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9.

To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits. Rowley, 458 U.S. at 188-189, and that the recommended program is the LRE for the programs ( : 221). child. 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate education services to address the child's education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits. Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12.

Under the criteria of the legal standard, the child's parent bears the burden of proof with regard to the appropriateness of the services that the parent obtained for the child for the current school year. M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Education of the Monroe-Woodbury CSD, Appeal No. 9334; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parent must show that the educational services were "proper under the act" [IDEA]. Burlington, 471 U.S. at 370, i.e., that educational program is one which met the child's education needs. Application of a Child with a Disability, Appeal No. 94-

29. 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." Rowley, 458 U.S. at 188-89. Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207; Frank G., 459 F.3d at 364. While parents are not held as strictly to the standard of placement in the LRE as school Districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement. Rafferty v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S. v. Board of Education, 231 F.3d 96 (2d Cir. 2000). Finally, the third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded.

I begin by noting that I credit the testimony of all of the witnesses who appeared at the hearing. The Decision as stated below is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record and, for the most part, will not be repeated here.

I.

Under the first criteria of the legal standard, I find that the District did not offer the child a FAPE for the 2010-2011 school year. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 20607; Cerra v. Pawling Central School District, 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. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). If a procedural violation has occurred, relief is warranted only 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); Application of a Child with a Disability, Appeal No. 06-124.

The Circuit has determined that "a school district fulfills its substantive obligations under the IDEA 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." Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998), in other words, likely to provide some "meaningful" benefit. Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief. See Schaffer, 126 S. Ct. at 537; Application of a Child with a Disability, Appeal No. 06-124. Here, I find that the parents have met that burden.

At the outset, the evidence at that hearing demonstrated that the documents considered by the CSE in its development of the child’s March 24, 2010 did not include either an educational evaluation, educational evaluation or evaluation ( : 15-16, 48). When asked if she was familiar with the Evaluation from Center Department of , , the school involved in developing the IEP who testified at trial, stated that the evaluation did “not look familiar” to her and that she did not recall whether the CSE had the document at the IEP meeting.12 Similarly, she testified that the Progress Report from New York Therapy Placements dated November 15, 2009 did “not look familiar” to her and that she did not know whether the CSE relied on that document at the IEP meeting ( : 90; DOE Exs. 12, 14).

In addition, several of the academic reading and math goals on the IEP state that the child will be able to improve his skills by “50%.” However, there is no then-current level of mastery for those skills indicated on the IEP and thus no effective way to measure the child’s progress or rate of improvement (DOE Ex. 3 at 7-8, 18). Moreover, the IEP does not contain any short-term objectives for math, reading or writing and no annual goals for or therapy (DOE Ex. 3 at 7-10).

Finally, and most significantly, the CSE failed to develop and FBA and for the child. Ms. testified alternatively that the CSE did not develop a because it felt the child’s al needs could be met in the child’s recommended setting and that she did not recall whether a had been considered and rejected or whether the issue of a was not raised at all ( : 21, 64, 74). However, the evidence in the reports that the CSE had in its possession at the IEP meeting and the testimony at the impartial hearing overwhelmingly established that the child’s impeded his and that an FBA and were essential to the child’s education.

In the case of a student whose impedes his or her or that of others, the CSE shall consider positive al interventions and supports, and other strategies, to address that . 20 U.S.C. § 1414[d][3][B][i]; 34 C.F.R. §300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]. Specifically, the CSE must conduct an FBA to ascertain the “ , mental, al and factors which contribute to the suspected disabilities." 8

While the Department of Education’s Exhibit list identifies this document as a “Medical Record,” it is, in N.Y.C.C.R.R. §200.4(b)(v); see also 20 U.S.C. § 1414(d)(3)(B)(i). Based on the information collected in an FBA, a is designed to manage the child’s problem s pursuant to 8 N.Y.C.C.R.R. §200.22(b). Danielle G. v. New York City Dept .of Educ., No. 06-CV-2152 (CBA), 2008 U.S. Dist. LEXIS 60192, at *28-29 (E.D.N.Y. Aug. 7, 2008). The FBA is essential to addressing a child's al difficulties, and, as such, it plays an integral role in the development of an IEP.” Harris v. District of Columbia, 561 F.Supp.2d 63, 68 (D.D.C. 2008). Because an FBA provides information “central to formulating an IEP tailored to the needs of individual disabled children” courts have recognized the “fundamental connection” between the FBA and “the quality of a disabled child's education.” Id.

As detailed above, the reports available to the CSE at the time of the IEP leave no doubt that the child has severe interfering s that impede his ability to . The CSE Educational Report written on January 4, 2010 by the child’s school teacher states the child’s “inappropriate s of high pitched vocalization, , , getting out of his distracts his attention to the task at hand and also from showing his skills.” The Report states that the child “requires prompting, redirecting, and guidance during activities, group activities” (DOE Ex.[5] at 3). The Report also indicates that the child’s “inappropriate interfere with his attention to play time” (DOE Ex. indicated that the negative s most often functioned either as “escape demands” related to particular programs or to “gain access to attention,” and Dr. indicated some of the antecedents to those s( : 192-193208-209). Both Dr. and the child’s teacher, , testified about the “variety of s” that the child exhibits when he arrives at school; that requires two adults to accompany the child to the classroom each morning ( : 200; : 233-234).

Ms. testified that the child has made “slow” academic progress during the current school year due to his “impeding s’” that “interrupt much of his . She explained that the child engages in “ , , , and ” to either “escape demands” when he does not want to participate in a particular program or gain attention. She opined that the staff is “focusing a lot” on the child’s “compliance and ” and she opined that if the targeted s were not addressed throughout the day the child would not be able to “attend, sit appropriately” or “make any kind of progress with any of the programs that are in place for him ( : 238-240).

In light of the above findings of fact based on the hearing testimony and the evidence, I conclude that the DOE failed to provide the child with a FAPE for the 20102011 school year in that the IEP did not afford the child the opportunity to obtain a meaningful educational benefit. Neither the fact that Ms. testified that a would be “put in place” if required during the school year ( : 21), nor the fact that , on its own, developed an FBA, renders the IEP adequate.

II.

With respect to the criterion, I find that the evidence presented by the parents satisfied their burden of demonstrating that the child’s educational program at for the 2010-2011 school year was appropriate. In making this determination I note that in order to qualify for reimbursement under the IDEA, a parent need not show that a private placement furnishes every service necessary to maximize their child's potential. Rather, the parent 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." Rowley, 458 U.S. at 188-89. The parent met that burden in this case.

As presented in detail above, the testimony by Dr. , the educational coordinator at , and Ms. , the child’s teacher, gave a clear picture of the child’s academic, / and al issues. The witnesses explained how the ABA program at addresses the child’s needs and deficits in these areas and how the child benefits from ABA instruction. And, the testimony explained how academics are addressed in individualized instruction periods and how the instructors work with the child on “activities of daily living” and in the sensory gym ( : 234236, 246). In addition to the classroom support, the child is also receiving and therapy three times a week for 30-minutes and therapy two times a week for 30 minutes (Parents’ Exs. E, G, H). The evidence also showed that identified the s that interfere with the child’s education and that it conducted an FBA to determine the antecedents to those s and how to best address them ( : 208-209). Ms. visited the child’s home and developed a plan for making the child’s transition to school each day ( : 241-242).

Ms. testified that although the child’s progress has been “ ” due to his “impeding s,” she believed that he “definitely” gained an academic benefit during 2010-2011 school year. She noted that the one-to-one support and generalization provided by the school helped the child be able to “attend more and to learn consistently.” She also stated that the school’s adeptness at tracking the child’s and progress has enabled the staff to develop different tactics that may work better for the child ( : 242). In addition, the child’s mother testified that the child has “been doing great” in school this year, in that his and space awareness have improved and that he has increased the time he is able to “sit” from one minute to about minutes ( : 273).

In light of the above findings of fact based on the testimony and the evidence presented at that hearing, I find that the parents met their burden of demonstrating that is providing "educational instruction designed to meet the unique needs” of the child supported by such services as are necessary to permit the child to benefit from instruction." Rowley, 458 U.S. at 188-89.

III.

Addressing the third legal criterion for reimbursement, I conclude that the equities support the parents in their request for the Department of Education to pay the child’s tuition at for the 2010-2011 school year. There is no evidence or testimony to suggest that the mother did not cooperate with the Department of Education. The child’s mother, who is a teacher, participated in the IEP meeting on March 24, 2010 and her uncontested testimony indicated that someone at that meeting suggested that she visit the Mickey Mantle School. The mother called the school the same day and visited the next week with her brother. For reasons that she detailed at the hearing Ms. determined that the school was not appropriate for the child and she decided to wait and see what placement the CSE recommended ( : 257-258, 260, 278). Concerned about having an appropriate placement for the child for September 2010, Ms. called the Department of Education several times after the IEP meeting about a proposed placement but was told that someone would contact her. In the meantime, in April 2010 she looked on line, found and contacted the school ( : 269-270).

When Ms. received the FNR dated June 2, 2010 she visited the recommended school, which she also found to be inappropriate. Ms. Informed

, the placement officer identified on the FNR that she did not believe the recommended placement was appropriate and she asked for other recommendations. Sometime that month she went for an “intake interview” at . Ms. subsequently gave Ms. a list of schools in all of the boroughs and told her to contact them. None of the schools answered when Ms. called and none of them call her back. In August 2010 the child was accepted to and she signed a contract for the school that month ( : 269-270, 274-276).

The Department of Education argues in its closing statement that although the child’s mother visited the offered placement and “repeatedly provided notice of her intent to unilaterally place” the child in a private school, she “repeatedly insisted on being offered a school that “utilized ABA (DOE Closing Brief at 10; DOE Ex. B). While the parent did ask for an ABA school, and, in fact identified such a public school, at , I find that she rejected the proposed placement as inappropriate for reasons other than the fact that it did not offer ABA. In particular, the teachers in one of the classes at the proposed placement told Ms. that they did not have any students who were verbal and did not expect to have any such students for the 2010-2011 school year. In another class, the teacher said, in regard to one of the students, that “he’s so .” And, in a third class the teacher ignored a child who kept calling for her, telling Ms. that the child “can wait.’ In addition, Ms. was concerned because the teachers at the school were not able to accompany the students into the bathroom, and at the time the child needed assistance. The person who took Ms. around the school told that the students “help each other out” and that if the child has an accident “he can change himself’ ( : 266-267). I find that this testimony is sufficient to support a finding that he child’s mother had reason to reject the recommended placement for having nothing to do with ABA.

The Department of Education also asserts that there was no testimony to show that the parents were under any obligation to pay the 2010-2011 tuition at and thus there would be” no injury that would be remedied by the DOE making a direct payment” (DOE Closing Brief at 11). I also reject this argument.

Ms. testified that explained to her that if she did not prevail at the impartial hearing she would owe the full year’s tuition at the school. And, the contract itself clearly states that if she did not receive prospective funding from the Department of Education, or did not receive such payment in full, she would be responsible for payment of the full tuition and that the school may avail itself of “any and all legal remedies to collect any monies due” from her under the contract (Parents’ Ex. D at 2). Moreover, as indicated in the Parents’ Closing Memorandum at 9, it is settled that “where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief.” See Mr. and Mrs. A, o/b/o D.A. v. NYC Dept. of Education, 09-cv-5097 2011 U.S. Dist. LEXIS 9475 at *68 (S.D.N.Y. February 11, 2011).

Based on the facts as indicated above, I find that the child’s mother made every attempt to find out the proposed placement and that she visited it prior to end of the school year. Since she had not received a recommendation by April 2010 and was concerned that the child would have an appropriate class for the 2010-2011 school year, she cannot be faulted for contacting . And when, after visiting the proposed placement June 2010, she found it to be inappropriate and had not been provided with another recommendation by August 2010, Ms. cannot be faulted for signing a contract with . I note that the contract states that if the parent accepted a placement recommended by the Department of Education and notified in writing prior to September 30, 2010, the parent would be “released from [the] contract without financial penalty or continuing responsibility for tuition payments” (Parents’ Ex. D at 2). In light of these circumstances I find that the equities of the case favor the child’s parents.

However, Ms. ’s testified that her father paid the $10,000.00 deposit and first payment towards the child’s tuition at on his credit card and by his check. Ms. stated that her name is not on either account and there is no evidence indicating that she has any obligation to pay back her father for those payments. Therefore, I find that the parents are entitled to have the Department of Education pay $79,962.00, the remaining amount of the $89,958.33 tuition for the 2010-2011 school year (See Parents’ Ex. D at 1).

ORDER

In light of the above findings of fact, it is hereby ordered that:

a) Within 30 days of receiving a copy of the contract for the child’s tuition at for the 2010-2011 school year, the Department of Education is to pay $79,962.00 as prospective tuition payment. Dated: June 6, 2011

______________________

RONA FEINBERG, ESQ.

Impartial Hearing Officer

RF: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 FNR and Parent's Response, 6/10, 2 pp. B Correspondence to , 7/19/10, 1 p. C Listing of District 75 Schools, 9/8/09, 11 pp. D 2010-2011 Enrollment Contract, 12/15/10, 2 pp. E 's Class Schedule, 2010-2011, 1 p. F Educational Progress Report, 12/1/10, 4 pp. G / Progress Report, 12/1/10, 2 pp. H Progress Report, 12/10/10, 2 pp. I Unilateral Placement Notice, 8/24/10, 2 pp.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 1/6/11, 7 pp. 2 Due Process Response, 1/11/11, 4 pp. 3 IEP, 3/24/10, 19 pp. 4 Final Notice of Recommendation, 6/2/10, 1 p. 5 CSE Educational Report, 1/4/10, 4 pp. 6 CSE and Report, 1/6/10, 2 pp. 7 CSE Therapy Report, 1/8/10, 2 pp. 7A Assessment System for Children ( ), 2/3/10, 10 pp. 8 school Observation/Interview, 1/13/10, 4 pp. 9 Child's Outcomes Summary Form, 3/24/10, 9 pp. 10 History Update, 12/23/09, 3 pp. 11 Turning Summary Report, 1/13/10, 6 pp. 12 Medical Record, 1/19/10, 13 pp. 13 Turning PES Summary Report, 12/23/09, 2 pp. 14 Progress Report, 11/5/09, 2 pp.

Footnotes

[2] A draft of certain pages of the IEP was typed prior to the meeting. At the meeting, , the school at sat at the computer and made adjustments and changes as the meeting was being conducted and the IEP “was completed during the meeting” ( : 23, 81)

[4] Ms. was not available for the hearing because of health reasons ( : 146).

[5] One student required a management paraprofessional for additional support and maintenance of daily routines. That student has “high levels of distractibility” and “out of seat that has to be monitored by direct support” ( : 155-156).

[10] The students eat at several large tables off to the side of the gym area ( : 221-222).

[11] Ms. described group instruction during the afternoon and noted that the students have the opportunity to participate in groups larger than one-to-one instruction as they gain different skills ( : 215-217). has a “relationship” with some less restrictive programs, specifically two local private schools. Students from who meet “ criteria” participate in inclusion programs in those schools ( : 217-218). There is also a “reverse inclusion” program during which general education students from the schools come to and engage in structured play and opportunities with

[5] at 4). Similarly, the CSE and Report indicates that the child “has difficulty attending therapy tasks” and that when he is “frustrated he “becomes more with the clinician/teachers” and “will often , squeeze peoples or try to them” (DOE Ex. 6 at 1). And, the CSE Therapy Report states that the child “presents with limited tolerance, attempting to and when aggravated” (DOE Ex. 7 at 2). At the hearing, , the educational coordinator at , testified that at the time the child was admitted to he had challenging s such as “swatting at the staff” and “ ” to escape tasks. The school did an FBA which fact, an “Initial Evaluation” by the Department of at Center (DOE Ex. 12).