New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student‟s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: July 19, 2011

August 3, 2011

August 9, 2011

Actual Record Closed Date: September 12, 2011 Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 19, 2011

Attorney — Parents

Mother — Parents

/Clinician — Parents

Dr. Dept. Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 3, 2011

Attorney — Parents

Mother — Parents

Department Designee — DOE

Dr. Physician — Parents

IEP Coordinator — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 9, 2011

Attorney — Parents

Mother — Parents

Department Designee — DOE

Teacher/ — DOE

INTRODUCTION

I conducted hearings pursuant to the Individuals Disability Education Act (IDEA) 20 U.S.C. section 1415 (f) (3) regarding a Special Education Program for students with a disability, New York City Impartial Hearing Case #132534. The hearing was conducted at the Impartial Hearing Office, New York City Department of Education, and 131 Livingston Street, Brooklyn, New York.

The student‟s parents submitted a request for an impartial hearing through their attorney on March 15, 2011 and the Department served its due process response on April 26, 2011. At the hearing, the Department of Education, hereinafter referred to as “The Department” was represented its Designee and the Parent was represented by its counsel. A list of witnesses and documents received into evidence is attached to this decision.

BACKGROUND

The Committee on Special Education (CSE) convened on March 21, 2011 and determined that a child, hereinafter referred to as “ ” classification to be “ ” and made a recommendation for a with related services, including , , therapy.

It was conceded by the Department of Education, hereinafter referred to as “the Department” that cannot benefit from participation in the general education program due to the .

The date of my designation as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 14515 (f) was March 16, 2011 and the instant matter came before me for hearings on the aforestated dates.

ISSUES IN DISPUTE

The child is currently an ( ) year old student who is classified as “ ”. The instant matter was referred to the , hereinafter referred to as the “ ” for placement, wherein a recommendation for placement was made for the , hereinafter referred to as the “ ”.

The Parent has requested an impartial hearing, stating that her child is delayed in , . It was the parent‟s request that the approve placement at the , hereinafter referred to as the “ ” school, located in . The Parent further maintained that the did not approve the request, and recommended the , hereinafter referred to the “ ”, which she visited and believed it to be an inappropriate recommendation.

THE PARENT’S POSITION

The Parent, as stated above, maintained that the Department has failed to provide a Free and Appropriate Public Education, hereinafter referred to as free appropriate public education (FAPE) for her child and although she agrees with the child‟s classification, it is her contention that her child could not receive an appropriate education in a placement and that the Department failed to timely and appropriate and recommend a placement. Further, the Parent maintained that the was a setting, in the , wherein her child could make reasonable educational and emotional progress.

Parent is seeking public funding for the appropriate unilateral placement at the “ ” based on the following: 1) the services offered by the board were inadequate or inappropriate; (2) the services obtained by the parent were appropriate; and (3) equitable considerations support the parent‟s claim.

THE DEPARTMENTS POSITION

The Department maintained that on December 1, 2010 the IEP team deferred the child‟s case to the for a non and that the March 21, 2011 IEP recommended a Non Public Placement and that a Final Notice of Recommendation, hereinafter referred to as “FNR” was issued on March 22, 2011 for the and that such recommendation would afford the child to obtain a meaningful education. Additionally, the Department maintained that the facility is not an appropriate placement as the school utilizes “ ” which is not permitted to be administered to children from New York,

FACTUAL BACKGROUND

As stated by Parent‟s counsel the following relevant facts are not in dispute: the student was born and lives with her . (Tr. 140) and is eligible for special education services under classification of and his classification is not in dispute. (DOE Ex. 1; Parent Ex. D). Parent initially requested funding for at based on the

Department‟s failure to make a formal placement recommendation for the student. (see Parent Ex. A dated March 22, 2011. After the Parent‟s due process request was filed, the CSE reconvened on March 21, 2011 and recommended residential placement at the “ School”. See DOE Ex. 13 dated March 22, 2011.) At the first date of the impartial hearing the Parent amended the due process request on the record, to the extent that she disagreed with the Department‟s recommended placement at the School and continued to seek funding for placement at .

THE PARENT’S CASE

The student was diagnosed with during his first year of school and placed in a specialized program. (Tr. 141). In the beginning of the 2009-2010 school year the student was transferred to the School, a specialized for children with disorders. The parent began exploring placements due to an increase in the student‟s during the summer of 2010. (Tr. 144-145). The parent researched various private programs for children with including the School and the School. (Tr. 146).

As per the parent‟s request CSE reconvened on December 1, 2010 and changed the student‟s program recommendation from NPS day to NPS residential. (Parent Ex. D 1; D 19). The student‟s IEP was deferred to the in order to locate an appropriate residential school for the student. (Tr. 149-150; Parent Ex. D 1).

The parent was contacted by at least schools which she visited and carefully considered for the student. (Tr. 150). The parent visited the on three separate occasions, (Tr. 168) at or about the same time that the parent learned about the ; this facility was recommended by Dr. , the child‟s pediatrician (Tr. 151). She visited and liked the program, particularly its policy and its component. Id. The parent also visited the School, which was recommended by the student‟s (Parent Ex. I), after visiting the school, the child was not offered a placement and did not accept the student. (Tr. 157). On or about January 13, 2011 the issued a letter advising that the student was accepted to the program. (DOE Ex. 5). The parent had significant concerns regarding the appropriateness of the being able to meet the student‟s needs and preferred to place the student at . (Tr. 152).

On March 21, 2011 the CSE reconvened in order to recommend an appropriate placement for the student. (DOE Ex. 1; Parent Ex. D). The parent testified that the purpose of the March21, 2011 meeting was to make a placement recommendation at the . (Tr. 152). The parent was told that the student could either attend the proposed by the or remain at the , if she disagreed with the placement recommendation at the . (Tr. 152). The parent expressed her concerns regarding the including its inability to provide the student with consistent ) program, and all related services recommended for the student. (Tr. 152-153; 160-162; 186-187). The March 21, 2011 CSE team dismissed the parent‟s concerns without discussing the ‟s ability to meet the student‟s needs. (Tr. 164-165). The CSE review team did not include a representative from the . (DOE Ex. 1 at 2; Tr. 164). Noteworthy, the CSE team was unfamiliar with the program and did not recommend a classroom ratio on the student‟s IEP. (DOE Ex. 1; Parent Ex. C; Tr. 153-154; 165). Despite the above, the CSE review team determined that the program is appropriate for the student and issued a Final Notice of Placement Recommendation (“FNR”) for the . (DOE Ex. 13).

Dr. , the child‟s pediatrician, testified after being duly sworn that she the Director of and that in her opinion requires an program (tr. 66). She has treated the child since he old and stated that he has an , and “ ”. The witness stated that she has two other patients that attended and that she observed “tremendous improvement in total well being and behavior. (tr 65). Additionally, she prescribed a series of and as per her other patients, the children were able to be weaned off of the at .

Upon cross examination, the witness stated that the child requires , , and an program. (tr. 69). She also stated that to the best of her knowledge, that her other patient‟s did not receive “ at (tr 72.)

The last witness to testify was Dr. who is employed by as the director of research and as a clinician. (Tr. 19). He oversees the programs of approximately twenty five individuals, designs and oversees their treatment plans. (Tr. 19). Dr. has a B.A. in psychology, and Master‟s Degree with a Ph.D. in conditioning and learning. He is also a board certified ). (Tr. 16-17). Dr. testified that currently ‟s student population consists of approximately 230 students, and approximately half of them would qualify as having a developmental disability and many of those students have a diagnosis of . (Tr. 20-21). Dr. thoroughly reviewed the student‟s records and testified in support of the student‟s admission at . (Tr. 21, 43-44). He testified at the hearing that the student presented a typical candidate with diagnoses of . has more than 40 years experience in treating people with and utilizes a consistent program, which means that the contingencies and the procedures are applied throughout the day and the evenings. (Tr. 21-22). Dr. also opined that placement at would be reasonably calculated to improve the student‟s problems, as well as, delays. has all necessary resources and credentialed related service providers to provide all related services mandated on child‟s IEP ( therapy). (Tr. 24, 35). There is a specific room and protocol for program at (Tr. 24-25, 31-32). Special procedures also could be used to address student‟s (Tr. 24). Dr. testified that could meet the student‟s academic needs. The student‟s classroom at would consist of five to eight other students of similar age with similar diagnostic profiles ( classification as per IEP) and similar appropriate functioning skills. The academic programs are tailored to the needs of a particular student. There is program instruction software available for students with different academic levels. treatment team also could design an intervention that can help with deficit in communication skills. Receptive and expressive language programs are also available to fit in particular curriculum. (Tr. 27-28).

The educational procedures at are based on widely used and wellestablished strategies. Precision teaching is one where skills are broken down into small components. While the student is given a lot of for appropriate responding, he/she is able to progress from basic to more advanced skills. (Tr. 29). The fact that the student has can be used as advantage in helping him to identify items in the environment or to request desired item. (Tr. 30-31). For student with limited or no communication skills team has available and different types of devices, cards, etc. also can address the student‟s . During the initial adjustment period staff develops a state of the assessment in order to create the appropriate and effective system of reinforcements for the student. (Tr. 33-34). ‟s staff psychiatrist could perform required and for . (Tr. 39-40). Nursing staff would monitor the student‟s ). (Tr. 51-53). With regard to the recommendation for full time , and toilet training Dr. testified that is able to fulfill all of these recommendations. (Tr. 39) and that he is extremely confident that the level of services currently offered at would be sufficient and reasonably calculated to improve the student‟s , as well as his academic delays. (Tr. 44).

THE DEPARTMENTS CASE

, testified that she is a and is employed by the Department. She has had experience as a general education teacher, special education teacher and as an educational evaluator She is a member of CSE Team to evaluate children with special needs and assists in the preparation of IEP‟s to determine appropriate programs. (tr. 129). She also is involved with placement at schools. The witness stated that she participated at the March 2011 IEP meeting (tr. 130)and recalls that a determination was made that the child requires a more , as the was no longer a suitable placement (tr 111). She was referred to the IEP and identified all participants at the meeting. Although she did not recall all the specifics of the meeting, she believed that all participants had an opportunity to present their points of view (tr 136) Additionally, the witness stated that the team does not recommend placement and only determines a “program‟.

The next witness to testify was , who is the IEP coordinator at the ; he is responsible for facilitating, coordinating IEP meetings and generally oversees the case management department at the school. (tr 81). The witness stated the school has students ranging from . He described at the school as follows skill, and for adult life. (tr 82). All teachers are licensed and certified and related services are available within the school, except for counseling. If there is a need for intensive behavior modification, a functional behavior analysis (FBA) is prepared, to be followed by a behavior support plan, wherein all staff is trained to implement same. (tr 85).

The witness was directed to the child‟s IEP and stated that it is comparable to most other student that attend the . More specifically, based on his IEP, the child would be in program and the school is able to provide “ . (tr 86). Mr. described the tier 1 program which is derived from an program. A typical day was described wherein the children would be taught foundational skills in math, reading based on discreet trial instruction. Also, very basic pre vocational skills are intruded. (tr 89) The witness described the school policies as being able to , by utilizing behavior modification (tr 91). Lastly, the witness testified that there are students that have entered the school on and were able to be removed from their due to behavioral intervention. (tr. 91). The witness stated that could provide the child with an appropriate education Upon cross examination, the witness stated that there are staff members who are Board Certified ); he believed that there are eight clinicians and that 90% are certified to service a student population of 124 (tr. 94). The proposed classroom setting for would be a . This recommendation was made by the schools admission committee (tr. 97) and he did not participle at the CSE review meeting.

Mr. stated that the school does not have a crisis management paraprofessional; however the methodology is built into the program. (tr 101). Regarding related services; , , and , they are provided by (tr 101) however, sometimes occupational services are provided by an assistant, who is supervised by the licensed therapist; the witness was unable to proved specific information about how often this occurs. (tr 105). The stated that he was informed that the admissions committee offered a placement to the child a couple of weeks prior to the August 3, 2011, IHO hearing and that the Parent visited the school. He stated that there is no “special program” to wean children off, but that the goal is part of the program (tr108)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The first and the most important reason for finding of denial of FAPE in this case is that the Department failed to make a formal placement recommendation within the required timelines. The IDEA contemplates that an IEP must be implemented as soon as possible stating that: “Each public agency shall ensure that an IEP is implemented as soon as possible following the meetings described under §300.343 [i.e., IEP team meetings].” 34 C.F.R. § 300.342(b) (1) (ii) (emphasis added). The Regulations of the Commissioner of Education in New York enact the same strict numerical caps for provision of special education services to handicapped students and students not previously identified as having a disability. It is stated at 8 N.Y.C.R.R. § 200.4(e)(1) as follows: Within 60 days of the receipt of consent to evaluate for a student no previously identified as having a disability, or within 60 school days of the referral for review of the student with a disability, the board of education shall arrange for appropriate special program and services, except that if such recommendation is for placement in an approved in-state or out-of-state private school, the board shall arrange for such programs and services within 30 days of the board‟s receipt or the recommendation of the committee (emphasis added). This subsection goes on to prohibit any enlargement of these absolute timelines in cases where the student might be placed in a nonpublic school: There shall be no delay in implementing a student‟s IEP, including any case in which the payment source for providing or paying for special education to the student is being determined. 8 N.Y.C.R.R. § 200.4(e) (1) (i).

In order to obtain tuition payment under Burlington, parents must demonstrate the appropriateness of the private school in which they have placed their child. An appropriate school is one that provides services “proper under the Act” Carter, 510 U.S. at 15; Burlington, 471 U.S. at 370, i.e. “one that is likely to produce progress, not regression, Gagliardo, 489 F3d at 112 (quoting Walczak v. Florida Union Free Sch. Dist., 142 F3d 119, 130 (2d Cir. 1998)). The private school need not meet the IDEA definition of a FAPE, formulate an IEP for the student, or provide the student with teachers certified in special education. Frank G. v. Bd. of Educ., 459 F 3d 356, 364 (2d cir. 2006), cert. denied, 128 S. Ct. 436 (2007). In addition, “parents seeking an alternative placement may not be subject to the same mainstreaming requirements as a school board.” M.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000). Subject to those exceptions, “the same consideration and criteria that apply in determining whether the School District‟s placement is appropriate should be considered in determining the appropriateness of the parents‟ placement.” Frank G., 459 F.3d at 364. “[T]he parents should not be held to a higher standard than the school district.” C.B. v. N.Y. City Dep‟t of Educ., No. 02 V 4620(CLP), 2005 WL 1388964, at *16 (E.D.N.Y. June 10, 2005); see also id. (“[I]f anything, the standard applied to determine the appropriateness of parental placements is less restrictive and subject to fewer constraints than that applied to the school authorities.”). Ultimately, “[t]he IDEA does not require the parents to provide an „ideal program,‟ just an „appropriate‟ one.” C.B., 2005 WL 1388964, at *24; see also Warren G v Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (test for a parental placement “is that it is appropriate, and not that it is perfect”).

PRONG I

In the instant case the CSE initially met on December 1, 2010 and recommended residential placement in a New York State approved private school. (Parent Ex. D). According to the Commissioner‟s regulations, a student recommended for placement in an approved in-state or out-of-state private school shall be placed within 30 days of the board‟s receipt or the recommendation of the committee. Consequently, the CSE should have recommended an appropriate residential placement for the student on or before January 1, 2011. Although the ‟s acceptance letter is dated January 13, 2011; the CSE did not meet to determine if the was appropriate for the student until March 21, 2011. (DOE Ex. 1; 5). Clearly, the Department violated the permitted timeframe for evaluating and placing handicapped students under the state regulations. The CBST‟s failure to implement the December 1, 2011 IEP within 30 days in compliance with 8 N.Y.C.R.R. § 200.4(e) (1) amounts to a denial of FAPE for the 2010-2011 and 20112012 school years. Despite issuing the acceptance letter dated January 13, 2011 the , it was not yet established that there was as immediate opening for the student.

I agree with Parent‟s counsel that in addition to the failure to make a formal placement recommendation in a timely manner, the March 21, 2011 CSE also neglected its primary responsibility under the IDEA – make a determination whether the is appropriate to meet the student‟s needs. Instead the CSE impermissibly predetermined placement at the based on a directive from CBST.(DOE Ex. 4).

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 Committee on Special Education (CSE) through the IDEA‟s procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE 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. After the completion of the first impartial hearing in this matter the parent received a letter from the dated August 18, 2011 advising her that the student was being placed on the waiting list for placement and can only be admitted once an appropriate vacancy becomes available. The parent requested to enter the August 18, 2011 letter from the in the record as the parent‟s additional exhibit, which is a copy of said letter and was attached to the parent‟s posthearing closing statement.

The burden of proof in an impartial hearing challenging the appropriateness of a student‟s IEP is with the school district. Educ. Law § 4404(1) (c). The obligation of ensuring compliance with procedural mandates under both federal and state law in developing an IEP lies solely with the school district.

The IDEA requires that every child receive an individualized determination of his or her needs for educational programming and related services. See 20 U.S.C. §1414. The IEP must be developed collaboratively by the child's parents, educators, and other specialists. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006). One of the most egregious ways for a school district to deny a child and his parents these rights is for it to predetermine a change in the child‟s IEP with which the parents are expected to disagree, and then go through the motions of holding a meeting to enact the predetermined outcome. T.P. and S.P. v Mamaroneck Union Free School District, 2007 U.S. Dist. LEXIS 35288 *1, *5-*6 (S.D.N.Y. 2007) (holding that “[T]he District did not come into the IEP meeting with an open mind, but rather predetermined at least one very significant component, namely the location and extent of services that the District was willing to provide.”); see also Spielberg by Spielberg v. Henrico County Pub. Sch., 853 F.2d 256 (4th Cir. 1988) (affirming the district court's conclusion that, based on a series of letters written before the IEP meeting regarding a change in placement, the school district had decided to change the disabled student's placement before developing an IEP to support the change, and that such predetermined placement decision constituted a procedural violation of the IDEA depriving the student of FAPE); W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1485 (9th Cir. 1992) (holding that in order to fulfill the goal of parental participation in the IEP process, the school district was required to conduct, not just an IEP meeting, but a meaningful IEP meeting).

In T.P. and S.P. v Mamaroneck, the CSE at the IEP meeting recommended the very same services that appeared on its “comparative list,” which was developed prior to the IEP meeting. See 2007 U.S. Dist. LEXIS 35288, at *6. The parent requested services that were not on the CSE‟s “comparative list,” which request was denied. The court observed: this failure precluded genuine individualization of the child‟s IEP and deprived the Parents of a meaningful opportunity to participate in the development of the child‟s IEP. See e.g. Deal v. Hamilton County Bd. of Educ., 392 F.3d 840 (6th Cir. 2004) (child was deprived of [] FAPE where the school district did not come to the IEP meeting with an “open mind” and had predetermined the IEP as to the important component of therapy, but had held an IEP meeting to „listen‟ to the child‟s parents). Id.

I find that the CSE‟s decision to offer placement at the without any familiarity with its program and without participation in formulation of the IEP is problematic. The only witness from the CSE, who participated in March 21, 2011 CSE review as the general education teacher acknowledged that the team did not discuss the and its program and or services at the meeting. (Tr. 138). According to Mr. the purpose of the March 21, 2011 CSE review was to discuss a program recommendation and not a specific placement. Id. Consistent with the teacher‟s testimony the March 21, 2011 IEP was completely identical to the December 1, 2010 IEP that initially recommended a for the student. (compare DOE Ex. 1 with Parent Ex. D). Parent further maintains that the March 21, 2011 CSE team review was not duly constituted because it lacked any participation from the recommended school placement. If a recommended placement is to be in a school other than the school district in which the student would normally attend if the student did not have a disability, the school district must ensure that a representative of that school attend the CSE meeting in which the IEP containing such recommendation is developed (8 NYCRR 200.4[d] [4] [i] [a]; see 34 C.F.R. § 300.349[a] [2]; Application of the Bd. of Educ., Appeal No. 05-023; Application of a Child with a Disability, Appeal No. 04-044; Application of a Child with a Disability, Appeal No. 04-043; Application of a Child with a Disability, Appeal No. 03-091; Application of a Child with a Disability, Appeal No. 03-046; Application of a Child with a Disability, Appeal No. 03-088; Application of the Bd. of Educ., Appeal No. 03-062). If a representative of the school cannot attend, the school district must use other methods to ensure participation by the school including individual or conference telephone calls. Id.

The record clearly indicates that the March 21, 2011 CSE met without the presence of the representative (DOE Ex. 1 at 2; Tr. 164). No documentation in evidence was offered describing the DOE‟s efforts to secure any representative from the in person or by other means. Therefore, the absence from the CSE meeting of a representative from the CSE recommended placement violated state regulations and resulted in the defective IEP and denial of FAPE to the student. (8 NYCRR 200.4[d] [4] [i] [a]).

If a representative of the been in attendance at the March 21, 2011 CSE meeting to explain its program, the parent would have had an opportunity for discussion with a knowledgeable representative of that school and the CSE regarding her concerns with respect to the Anderson‟s program and services (see Application of the Bd. of Educ., Appeal No.05-042; Application of the Bd. of Educ., Appeal No.04-058; Application of a Child with a Disability, Appeal No. 03-091). The presence of a representative from the was particularly important here, because the parent had significant concerns regarding the program after visiting it on at least three occasions. In absence of the representative the parent was denied any meaningful opportunity to discuss with the CSE her concerns regarding the student‟s need for supervision; the lack of licensed and certified related service providers and clinicians, the school‟s medication policy, etc. The March 21, 2011 CSE failed to determine an appropriate classroom ratio on the student‟s IEP. (DOE Ex. 1).

The fact that the parent attended and was provided with an opportunity to speak at the CSE meeting does not mean she was afforded an adequate opportunity to participate. Participation must be more than a mere form; it must be meaningful. See W.G., 960 F.2d at 1485. I find that the CSE did not in reality consider as an alternative placement option in light of CBST directive. Based upon CSE‟s pre-determination, I find that the parent‟s participation at the March 21, 2011 IEP was “diminimus”. See e.g. Spielberg, 853 F.2d at 259. As the CSE appeared to predetermine placement, I find that this was a material procedural violation of FAPE under the IDEA.

I will not repeat all of the details of evidence here, but the support and basis for my findings of fact and decision are grounded in that testimony as it appears above. I have considered the testimony of all witnesses who testified at the hearing. With respect to the issues presented at the hearing, I make the following findings of fact and note that the Department of Education did not timely offer the child a FAPE for the school year in question.

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department 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 Department of Education were inadequate or appropriate; 2. the services selected by the parents were appropriate and 3. Equitable considerations support the parents claim (Sch. Comm of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. School 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 developed a proper IEP (id At. P. 370-371.

PRONG II

Under the second criteria of legal standard, the child‟s parent bears the burden of proof with regard to the appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Disability, Appeal No. 9429; Application of the Bd. of Education of the Monroe-Woodbury CSE, Appeal NO. 9394; Application of a Child with a Disability, Appeal NO. 95-57, in order to meet the burden the parent must show that the services were “ proper under the act” (IDEA) (Burlington 471 U.S. at 370) i.e. that the private school offered an educational program which met the child‟s special educational needs (Application of a Child with a Disability, Appeal No. 94-29). The test for the parents private placement is that it is appropriate not that it is “perfect” (M.S. v. Bd. of Educ. 231 F. 3d 96, 105 [2d Cir 2000}, cer. Denied 532 U.S. 942 [20012]). The private school need not employ certified special education teachers, nor have its own IEP for student (Application of a Child with a Disability Appeal No. 02-111). While parents are not held as strictly to the standard of placement in the LRE as school districts are restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. School Comm 315 F. 3d 21, 26-17 [1st Cr. 2002}.

is a New York State approved school for children with developmental disabilities such as . ‟s academic curriculum is approved by the New York State Department of Education. (Tr. 20). serves students with a wide variety of issues, including students who function at a level and those who function at a level. (Ex. M1). The age population at ranges from but most of the students are . (Ex. M2). Daily is required and students are escorted to school by staff members. (Ex. M2). The system at utilizes programmed self-instruction using computers as teaching machines, precision teaching and behavior modification. (Ex. M2, 3). The self-instructional teaching software allows each student to progress at his or her own pace and receive immediate feedback. Precision Teaching allows for each student‟s educational progress to be evaluated as they do their lessons by showing the rate of correct and incorrect responses. Each student‟s data are automatically entered into the database. The clinicians are then able to view the student‟s progress for each academic skill on a daily basis. This enables the clinicians to immediately take needed remedial action. uses a reward system to motivate improvements in academic areas as well as for problem behaviors. (Ex. M2, 3). Academic instructions are delivered in various teaching modalities which include a computer instruction for each student, individual and group instruction with a teacher, individual worksheets. (Ex. M5, 6). I find that the Parent has established by a fair preponderance of the credible evidence that was an appropriate placement and that the school could provide a “meaningful education” for the child in the LRE.

PRONG III

The final criterion for an award of tuition reimbursement is that the petitioners‟ claim is supported by equitable considerations (Carmel Cent. Sch. Dist. V.V.P. 373 F. Supp. 2d 402, 416 {S.D.N.Y. 2005] aff‟d 2006 WL 2334140 (2d Cir 2006); Frank G. 459

F. 3d at 363-64). Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C. v. Voluntown Bd. of Educ. 226 F. 3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 [noting that [c]ourts 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 non compliance with state and federal regulations pending review the reasonableness of the parties‟ positions, and like matters (Wolfe v. Taconic Hills Cent. School. Dist, 167 F. Supp 2d 530, 5323 [N.D.N.Y. 2001] citing Town of Burlington v. Dept. of Educ. 736 F. 2ds at 773, 801-02 [1st Cir. 1984] , aff‟d, 471 U.S. 359 [1985]; with respect to equitable considerations, 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 or upon finding of unreasonableness with respect to the action taken by the parents 20 U.S.C. § 1412 (a)(10)( C)(iii). Wareen G. v. Cumberland Co. Sch. Dist. 190 F. 3d 80, 86 (3d Cir. 1999); see Application of the Bd. of Educ. Appeal No. 04-102; Application of the Bd. of Educ. Appeal No. 04-026). However, reimbursement may not be denied or reduced for failure to provide such notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a)(10)(C)(iv)(I)(cc)(II)(bb).

The equities in this case favor the parent, who has clearly demonstrated her cooperation with the Department. The parent has been in constant contact with the CSE, has actively participated in the placement process and diligently visited all of the proposed programs, Due to the student‟s significant needs, the parent had concerns about placing the student in the , but nevertheless visited the program along with the student and attempted to participate in the process to the extent that she was permitted.

I order the Department to directly pay the cost of the student‟s tuition and residence at for the 2011-2012 school year based on: the Department failed to offer the student a FAPE; that the is an appropriate placement for the student and that the equities fully support the parent‟s request for tuition payment.

Parents maintain the totality of that evidence (1) both procedurally and substantively, the Department failed to offer a free and appropriate public education (FAPE) that was “reasonably calculated” to meaningfully address ‟s unique and individual needs (Prong I); (2) ‟s intense 1:1 program and service supports at amply meets the Second Circuit‟s “reasonably calculated” test for Prong II; and

(3) there are no compelling equitable considerations that would operate to preclude or even to diminish a Reimbursement award (Prong III).

Upon a complete review of the record, the parents cooperated and acted reasonably at every level. There are no compelling equitable considerations under Prong III that would preclude or diminish the reimbursement relief that is being requested. For all of the foregoing reasons and based upon the evidence, I find in favor of the Parent as set forth in the attached order for the 2011/2012 school year. Dated: September 28, 2011

_______________________

GARY D. PETERS, ESQ.

Impartial Hearing Officer

GDP:gc

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

No. Date Description # pages

Department of Education Exhibits

1 3/21/11 IEP 21

2 2/11/11 Parent Letter 1

3 10/12/10 Letter 1

4 1/14/11 CBST Memo 1

5 1/13/11 Acceptance Letter 1

6 11/19/10 Report 3

7 11/22/10 Educational Report 2

8 11/19/10 Report 2

9 11/22/10 Report 2

10 10/14/10 & 11/22/10 Report 7

11 10/14/10 Report 2

12. 10/26/10 Observation 2

13. 3/22/11 1

14. 4/15/10 1

15. 2010 Torture Treatment Article 67

Parent Exhibits

A 3/15/11 Impartial Hearing Request 3

B 4/26/11 Dept Amended Response 3

C 3/21/11 IEP 21

D 12/1/10 IEP 21

E 8/8/08 Evaluation 7

F 3/11/10 Report 1

G 10/14/10 Updated Report 2

H 11/22/10 Psycho/Educ. Evaluation Report 7

I 11/24/10 Letter from Hospital 2

J 3/4/11 Acceptance Letter 1

K Various Tuition 2

L undated Procedures 7

M undated Distinguishing Features 11

N May 2002 Positive Prog. Procedures 16

O 2010 Article Fry & Lee (Effective Prog) 28

P 1/5/82 . Decision 12

Q 7/802 . Order 5

R 6/8/10 Article by Dr 222