New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Name:

Date of Birth: District: 2 Hearing Requested By: Date of Hearing: June 17, 2010

September 23, 2010

October 6, 2010

November 16, 2010

January , 2011

February 17, 2011

February 18, 2011

February 22, 2011

April 29, 2011 Hearing Officer: Theresa R. Joyner, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 17, 2010

Student

DOE Litigator — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 23, 2010

Student

Student

Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 6, 2010

Student

Student

Student

DOE

School (via teleph ) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 16, 2010

Student

Student

/ (Did not testify) — Student

DOE

School (via teleph ) — DOE

(via teleph ) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY , 2011

Student

Student

Student

Student

/ — Student

(via teleph ) — Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 17, 2011

Student

Student

-,, (via teleph ) — Student

(via teleph ) — Student

(via teleph ) — Student

(via teleph ) — Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 18, 2011

Student

Student

School — Student

for and (via teleph ) — Student

School for and — Student

(via teleph ) — Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 22, 2011

Student

Student

(via teleph ) — Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 29, 2011

Student

Student

Student

DOE

This matter came before me on June 17, September 23, October 6, November 16, 2010, January , February 17, 18, 22 and April 29, 2011, the hearing was held pursuant to the s with Disabilities Education Act (IDEA) §1415(f)(1). The ’ request was received on June 4, 2010; a Pendency Order was issued July 20, 2010. The parties jointly requested that the compliance date be extended after each hearing day. Appended to the record are lists of persons in attendance and documents admitted into evidence.

BACKGROUND

The student ( ) is a year old who attends the School for and ( ), a New York State approved school. The Committee on Education ( ) convened on April 21, 2010, it recommended that the child be classified as . Also, the recommended a class in a school, with a staffing ratio of . In addition, were offered, ( ) was recommended, ; and . ( ) and ( ) were recommended, each for The requested this hearing (1) to challenge the alleged failure of the Department of Education (DOE) to provide their with a “free appropriate public education (FAPE) for the 2010-2011 school year and (2) to seek an order mandating that the DOE continuing funding the child’s tuition at and for , eight hours per . In addition, the seek reimbursement for after school already provided and for the remainder of the current school year.

THE DEPARTMENT OF EDUCATION’S CASE

The DOE’s case was presented by their counselor, , , through testimonial and documentary evidence.

, testified that he is a New York State certified school and has worked as same for the past eight to nine years. Prior to becoming a school he worked as a education . His current position as a School requires him to conduct and of , as well as do , interviews, and reviews. Also, he makes recommendations for educational programs, and interprets d by outside . (Tr. 29-31)

The stated that he conducted the April 21, 2010 annual review; he acknowledged that he failed to sign in as a participant on the . He identified each attendee at the meeting, identified the documents received from , and the specific documents that he personally reviewed. (Tr. 35-36 and 39-42) Mr. reviewed the ; he read the academic performance and academic management needs. He recalled that the had described as friendly with adults and ; was able to, for the most part, work independently. He reviewed the annual goals and objectives and explained how each goal would address needs. The goals were discussed doing the meeting and there were no objections voiced pertaining to them or any to the recommended . The discussed the other programs considered and ruled out. He opined that the recommended would be an appropriate to meet educational needs. (Tr. 51-54; 55-57 and 65-68)

On cross-examination, he admitted that he never met the student and that he never conducted any observation or evaluation of the student. (Tr. at 77) He acknowledged that he reviewed only the documents from and did not review documents from prior school. He stated that the entire 2009 was reviewed, including the goals. He did not think that a classroom observation had been d and did not recall if all the goals from the prior year were met. ( Tr. 80-82 and 85-86) The acknowledged that the current did not reference anywhere that the child was as having and . (Tr. 101-102) He admitted that every person, at the meeting, who worked with the student advised that needed a ; he did not recall if they raised the issue of . (Tr. 114-115)

On re-direct, the testified that no at the meeting requested that be put on the . He stated that all of the agreed that their school was not sufficient to meet all of the educational needs without the additional of a and . (Tr. 154-155; Exh. 2)During re-cross the stated that he had not personally reviewed the school documents and that he was not aware that the child had received since 2006.(Tr. 160161 and 164-165) The stated prior are not relevant, the current strengths and are what is required to determine present needs. (Tr.165166)

, stated that is certified to teach general education and education. Teaching is a career choice; has taught for five years. This is year teaching through grade, at , the proposed site. The school has approximately plus ; teaches a class which has . The children’s classifications consisted of that were ; was learning disabled and were other health . The children ages ranged from to . class covered three grades, the academic profiles of the in , writing and math ranged from pre- to grade. There is class and for some of the . The academic work is broken down into different groups; the help with the groups. (Tr. 172-174; 175-177 and 182-184) The entire school eats lunch together, all accompany class. described a typical day for children; noted that there are opportunities. (Tr. 188-189)

discussed , and ; concluded that the student was similar to other in class. reviewed goals and explained how would implement them in the class. noted that works closely with the service . opined that the educational needs would have been met in class and that the needs closely resembled other in the class.(Tr. 192-194 ; 197-200 and 202-204. (Exh 1)

On cross examination, the estimated that there were or more in , the other school that shared the building with school. covers grades from to grade. The stated that in current class, n of the children were with ; were with . (Tr. 210-212) In class, there are , graders and graders. All of the and graders are for . Some of graders are on grade and of graders is on a grade . (Tr. 220-221 and at 223)There are opportunities in and .; neither of those are education . In each class there are about . All of receive in the classroom for two full periods. (Tr. 243-244)

THE ’ CASE

The ’ case was presented by their , , Esq. and Esq. through testimonial and documentary evidence.

testified that is ’s based ; is by - . is certified as a education , birth through grade and as a education , through grade . has ten years experience working with children. started at - in January, 2007 and student was . (Tr. 280-282) had just of and Ms. worked with 20 hours. Currently, sees a and , a certified education , with the student. The via text messages, emails, and by notes.

described as having , extreme and . The student has very attending , short . There are significant with both and . receptive are extremely . has improved with expressive on a limited basis; is not able to carry on a conversation. enjoys , but, with . are ; still needs help with . The student does have some which were acquired through with typically peer, a year old . H er are .(Tr. 287-290) The student exhibits , adds on to . cognitive run the ; is very adept at reciting and numbers. has a large reservoir of sight words. The student does very well with anything that is concrete; is close to age in those areas. However, when it comes to abstract concepts continues to . (Tr. 287-289 and 292 -293)

Initially, when started working with used , discrete trials to build a foundation of knowledge and as progressed, the discrete trials were replaced with task . breaks down skill into smaller parts; teaches each part and then assists in putting the parts together. noted that the child has never been , but has that distract . Sometimes just starts aimlessly, sometimes starts rolling on the floor, if these activities are not stopped, they will go on unabated. The stated that works on the same goals as the child school does, obtained from the . Ms. reviewed Year End Report, which covered from September, 2009 through the summer of 2010. explained that the goals in report were the goals that the school created. Overall, the student has mastered a few goals, particularly the concrete academic goals. is making on the rest of the goals, they are emerging. The rest of the goals were not reached because there was insufficient time to teach them and engage in the of repetition that requires to learn new materials. The 2009-10 goals were modified for the following school year. (Tr. 294-295 and 297-298( ( Exh. EE) went into detail regarding the 2010-11 school year goals and data that maintains on the student. ( Tr.302-303)

stated that is in touch with the , visited the school once this year to meet the new . Also, there are books that go back and forth daily. is always aware of the and things that go in the school. works on with and provides weekly sheets that covers each subject and work in it for the . The noted that is in touch with the , usually once a they email each other. , the , has worked with even longer than the . The student continues to make slow and steady . is able to make lower case letters, more sight words have been added to and is better able to . has some understanding of the difference between more and less. is at age . However, the student requires a tremendous amount of repetition and so the stated works on reinforcing learned in school and teaching attending . The opined that biggest reason why needs the is to improve attending , so that the child is available for learning. (304-306 and 307-311)

Also, the child continues to need the to help with structure. requires the constant structure of the or will start exhibiting , such as flapping. The child needs a twelve to keep the inappropriate in check and to what has been learned, otherwise there will be . recalled seeing after holidays and school breaks. needs continual repetition to maintain knowledge base and appropriate . (314-316)

Ms. discussed in detail attendance at April, 2010 meeting that lasted about an hour. recalled that the team, the school and social worker appeared not be familiar with the detailed reports submitted by ; they were constantly asking questions that were in the reports. noted that the social worker was deaf and had some signing to . The more often than not appeared not to be participating in the ongoing that arose at the meeting. (Tr. 317-320) The team did not include any attending goals because was not recommended for any there were no goals. was in disagreement with the regarding the placement since there would not be enough attention to in that setting. The to discuss a and to discuss a . (Tr.325-328 and 329-330) discussed of the student in a : class and in the child’s school with general education and . I n both situations, the student with attending, the was . (Tr. 332-334)

The stated that has worked with for years; during the summer of 2010 worked with for eight hours a . In September, 2010 the hours were reduced to six hours because of the classes. They meet three times a , 4:30-6:30 and another works the remaining two hours. (Tr. 339-340) On a typical day, Ms. will check the book to see if there is anything from the . Next, works on the , which can take from a few minutes to 15 minutes to complete. After completion of the , different areas of are focused on. They work on site words, , puzzles, play different games, sequencing and other important tasks. Sometimes the child’s brother will come into their area at , to play a game; cousin will once a spend time with them. ing with the cousin provides an opportunity for modeling a typically child.(Tr. 342345 and at 346)

recalled in November, 2010, visited with the and met with , of team and discussed the student. (Tr. 296-297) noted that it is important for the child to be exposed to typically children because the student responds well to models, good or bad. The was not aware of any opportunities at for the child to work with typically children. When queried by opposing counsel regarding the DOE’s , stated that it appeared to that they had not reviewed the reports since their questions oftentimes were specifically addressed in the reports. Other times would refer to something and reference a report, the DOE would start flipping through the reports as if they had no idea what reports were in front of them.(Tr. 356-357) The noted that the student has regressed after long breaks. (Tr. At 360)

stated that has been the since the child was nine months old. has a license from New York State and is Board certified in general , in , and and behavioral . The doctor estimated that has performed approximately a thousand and does approximately three hundred a year. has seen the student once or twice a year, for the past six years. has twice evaluated the student, once in July, 2009 and again in July, 2010. In both , findings, showed the student to be a child “with , / , global , and integration .” The student has made slow and steady . discussed in detail findings and . (393-395; 398-400)

The student appeared during the most recent evaluation, was impulsive at different times and had some self . continued to have with and articulation. The student had responding to questions. was not able to answer who was , but, when the question was rephrased, answered. The student was able to answer what is your name. were on a year old and balance was on a three year old . word were , and were . The advanced on the , to years, . On the sentence , standard score was , the for age is to . is significantly deficient for in being able to . The results of this were similar to the earlier evaluation. The student with , has and in . and persists. (Tr. 406-409 and 411-413 and at 414)(Exh. M and U)

noted remained un from the previous year and again made the same recommendations for the child’s education . recommended a school , and a : class placement. The after school should continue, of and of . explained that two are needed because the child has profound , that cannot adequately be addressed by a . do not have the and education to deal with a child who has significant . needs some who is able to reformulate directions and h in on the child’s deficits, to provide guidance. opined that , student and class was not sufficient to meet the needs. Also, stated that or more in the would be for , possibly upsetting to . Moreover, the from the back to the classroom, would be . (Tr. 410-412)

The needs a because is at for . needs the , class (preferably eight ) with who can and them . The after school is necessary for generalization of learned at school to other . This is a who needs , to learned; has significant attention problems. The provides a quiet setting for pre-teaching and re-teaching. Also, as a child on the , needs help with receptive, expressive and pragmatic . The helps with attending . The will help to address the more than delay in fine , it will help with pre-academic drawing and writing letters. (Tr. 401-403) (Exhs. M and U)

stated, on cross-examination, that has d eleven reports on the student. admitted that had never observed the student in any academic setting and that were limited to the visits to the office. Although, never visited and familiarity with it was based on three families, found the school to be appropriate based on ’s there, testing, reports and the . Typically, does not recommend placements, but, provides guidelines for an educational placement. is important across the board, so that every who is working with the child is able to share their findings and address things in the same way. (Tr. 415-418 and 419-421)

Ms. , testified that is a New York certified school who has been employed by since 2008. As a classroom , in the 2009-10 school years, oversaw six classrooms addressing any that may have arisen or any . ran the and meetings as well as provided and group sessions for children on caseload. went to each of classrooms daily, conferenced with the and checked in on . During that period, saw the student daily, however, never . (Tr. 456-458)

The stated that participated in ’s meeting on April 21, 2010 along with two other persons from . stated that the was given ’s annual report packet which consisted of service ’ reports and reports. The meeting lasted over a hour and was tabled at the end because the and the could not come to any agreement over the . and the other persons all agreed that was an appropriate placement with or without . The felt it was the ’s determination as to whether should be provided. They recommended a : placement with and group session, two and two sessions, weekly. Also, the recommended a twelve school year. The disagreed with their placement offer and offered the three options. The offered a with no ,a in a District school or a in education class with service. The did not offer any explanation as to why they would not consider a placement. (Tr. 460463 and 464-466)

On cross examination, acknowledged that has worked as a school three years and that when participated in the meeting it was only year. admitted that only spoke to the time, at the meeting. opined that remained an appropriate placement for even without a . (Tr. 468-470 and at 472) On redirect, acknowledged that was not familiar with the ’s hours, goals, reports or as it was conducted during the 2009-10 school year. (Tr. at 473)

, , at , testified that has a Masters in education, with a concentration in , a Bachelor’s in and . explained that the concentration in satisfied the course requirements to sit for the Board Certified . has worked at for six years and current duties require to the and . Also, classes and to the . explained that is a based ; they children with , learning , , , , , , and . The school’s approach is to a in its . The collaborate with the service . (Tr. 476-478)

Ms. stated that is a New York State approved school; the state has reviewed its curriculum and approved it. There are approximately , including and school age at . Classes are graded and go up to the grade. There are and teaching in the school-age and and teaching in the . The school offers , , , and training. has observed : on a monthly basis. (Tr. 479-481 and 481-482) All the are New York State certified education , teaching must have at least a New York State certification and service must be licensed by New York State. Tr at

483) stated that had not spoken to or met the .

stated that is a New York State certified education ; has worked at for 14 years. taught last year, in , from September, 2009 through August, 2010. participated at the April, 2010 meeting and recalled discussions regarding whether a was needed. noted that it was position that was meeting the needs . (Tr. 495-498) believed needed a because requires a lot of of material learned, needed to improve generalizing and without a summer there would be significant when returned to school in September. noted that during the school year when there were , the student would and take a to get back into the routine. described the class as consisting of , and . All the were classified as and . The student that summer presented with limited , required a lot of verbal prompting to get to answer questions and comprehension were . did not directly engage with the children, engaged in play. had with fine and received to address those deficits. (Tr. 500-502 and at 503)(Exh. 2)

noted that having two afforded them the opportunity to break the class into groups of and . Also, the assistants worked with to review concepts with those children who needed the additional help. The subjects covered were all mandated under New York State curriculum. The group had to , ages and ; they were on a to grade in and math.(Tr. 504-505) described a typical day, starting in the morning with , English Arts, gym and writing. In the afternoon, the had math, science, social studies and specials. Social were also addressed, times a , in half hour sessions. This was beneficial to , to help with pragmatic . (Tr. 508-510) The student received all the noted on October, 2009 . (Tr. 512-513; Exh. C)

The stated that the child did make during the summer , learned to share objects or ex e objects with , engaged in turn taking during games and improved on follow two step instructions. The referenced the report and noted that the student during the summer improved substantially in numerous areas. opined that offered the student an appropriate summer . Ms. stated that was aware that had a with a . was in touch with the through the weekly notebook and conversations. The student benefitted from the .(Tr. 5515-518 and 519-520) (Exh. FF)

Ms. was given information regarding the recommended class and opined that it was not appropriate, the student needed the extra support that is provided in a : . Also, expressed concern about three needing professionals; commented that is easily . In addition, noted that during the summer needed help with lunch in the classroom, and with keeping together. A with plus that required to wait in line, get own tray of and it back to the would be for to manage since required help in a classroom of with . (Tr. 528-

529) stated that mainstreaming the student would not benefit because really needed for all activities. In addition, expressed concern over the child having to take since already had with English. (Tr. at 530)

On cross examination, admitted that had no opportunity to with typically children since all classes at are (Tr. at

537) agreed that at the end of the summer that most of the goals were maintained as opposed to achieved. The admitted that did not know if would be able to meet ’s needs without any additional after school ; has only known with a . (TR. at 541) During redirect, Ms. said that it would not have been sufficient for ’s needs if was replaced with a teaching assistant or professional. noted that the student was in the middle in terms of ability in comparison to and that benefitted from having peer models. (Tr. 542-543)

, stated that is a New York state certified general education and education , this is third year teaching education. has taught years, three years at . Ms. is ’s grade education . (Tr. 558-560) grade class ( :2:2) consist of nine , two education and two assistants. The children’s ages in class are from and to and a ; there are girls and boys. are classified as and is classified with described as having limited attending and . The student has limited and comprehension; has with . addresses the attending in class with a in place for the entire class; children are rewarded if they stay on task a certain amount of time. Also, with and the other use visual and verbal prompts to keep on task. (Tr. 563-565) Ms. described in detail the breakdown of different subjects, the materials used and the employed. In addition, described what a typical day is like in class.(Tr. 568-570) discussed what is d doing and how benefits from it. noted that the go to the cafeteria; there are about thirty in the lunchroom with to adults. Recess is structured and is considered an instructional time, the class and the stay together during recess. (Tr. 572-575)

Ms. discussed the numerous areas where made during the current school year; referenced the scores on the test administered January 221, 2011. In broad percentile rank is the grade equivalency is about and in writing scored a grade equivalency of were at a grade . The student has made in all of goals, in the classroom. In some instances, the has been gradual, some of it has been inconsistent and some of it has been satisfactory. I n , has made satisfactory , however, in phonics has made significant gains. comprehension has improved; continues to with abstract stories. is able to rote and to continue patterns; has with and . (Tr. 582-584)

The stated that needed a because the student requires a lot of repetition and after being out for extended . The opined that is an appropriate placement because it is the , it offers the needed to make as needed and it offers appropriate for social and academic models. (Tr. 585-586) (Exh. KK) During cross examination, the stated that when goes to lunch there are approximately 30 in the cafeteria with and nine adults, all are certified or certified assistants. (Tr. 602-604) there are no lead in the cafeteria. (Tr. at 605)

testified that is a New York State , employed by . provides to times a , three sessions and session on a basis. has worked with the student since September, 2010. described the student as having global and which adversely impact on expressive, receptive and pragmatic . The student has understanding what is being said to , has a limited ability to understand single directions. vocabulary and grammatical concepts are not age appropriate. is unable to recognize social cues and with initiating conversation as well as with staying on topic. The discussed in detail how addresses those . (Tr. 616-619))

Ms. stated that picks the student up from class and takes on the to office. The session begins from the moment the student leaves class. S he acknowledged that there was a clerical error in the annual classroom report which stated that receives three sessions weekly. The report omitted the single group session. The stated that collaborates with the other and on a regular basis so that all are making a concerted effort to effectively meet ’ education needs. The student has made in ability to , to engage in three verbal ex es and to follow simple . The student is learning to generalize gains made in to other . (Tr. 620-621 and 624-627) (Exh. JJ) When queried by opposing counsel the stated that believed important to have meetings. is aware of ’s , but has not met nor does have any contact with . (Tr. at 636)

The stated that he noticed that was showing signs of when was nine months old. He took to , who found that had global . The child was unsuccessful in a setting and was placed at ( ), at the expense of the DOE. remained at for three years in a self contained class and received and . When aged out of went to for the 2009-10 school years. attended for and is presently in the grade. The identified the documents he sent to the prior to the meeting which included ’s report and reports. (Tr. 666-669 and 670-671)(Exhs. U and DD) Also, he identified the DOE’s documents submitted, exhibits 3 through 10, which contained numerous reports from . He stated that he did not provide any of the documents nor were any of those documents discussed by the with him. (Tr. 672-674)

The recalled that during the meeting which occurred in April, 2010, Ms. , who participated as the District Representative and as a education had a . The , did not appear to be attentive to the ongoing discussions and nor did Ms. . He felt that did not fully participate in the meeting; spent time taking notes and going through documents. In addition, he noted that the appeared not to be familiar with the documents and often times asked questions that were easily addressed in the reports.(Tr. 675-676) Moreover, the team was adamant on providing a placement and would not entertain any discussion on a or the continuation of the after school . After the meeting, the wrote a letter to the , Mr. , expressing his concerns. He received no response from any at the . (Tr.677-679; and Exh. L))

The stated that he received the placement offer on August 6, 2010; he immediately called the proposed school in an effort to obtain information about the curriculum and arrange for a visit. He spoke to a who informed him that the school was out on vacation and advised him to follow up in September, after the school opened. Next, he wrote a letter to the expressing his desire to visit the school. Also, he noted that would continue at and continue the , reimbursement/funding would be pursued. (Tr. 680-681) (Exhs. 16 and K) He visited the school in September and found it to be an inappropriate placement for his . Again he wrote a letter to the DOE, in which he set forth the numerous reasons why the placement was inappropriate. Among the reasons proffered was the proposed class contains three grades within it, there are in the class, which would be a distraction and a good portion of the day would be taught by a student or professional, neither of whom have education training. The levels of the children were not similar, some were very advanced. The often times sent out of the classroom for minor . The was too stern and would not have sufficient patience to deal with his , who sometimes does not answer questions directly. has and processing . The DOE did not respond to his detailed letter.(Tr. 683-685 and 686-688) (Exh. Z)

The believes his continues to need a , because is quick to regress if is not constantly getting the education and support that needs. And needs the after school to learned in school and to promote generalization. The has global across many domains, but, with current educational at school and , is making slow and steady . He testified that he is paying for the out of pocket and referenced a .(Tr.689-692 and 693-696) (Exh. GG)

The acknowledged on cross examination that he opted not to request to speak to any of the and that he did not show ’s to any at including Ms. , the proposed classroom .(Tr. 706) On redirect, he stated that no told him to bring the to the school nor did any at the school request to see . Also, he stated that when started at he had to make payments to the school in order for the child to attend; this was prior to the approving . (Tr. 727-729)

The ’ final witness was , a New York State certified , who has worked with the child since received at the age of two and a half. provides ,a , to after school, once a at office. bills the at a rate of ; does not accept the rates. The explained the breakdown of . ( Tr. 737-740; Exh. GG) identified the main areas of ; the student has a lot of pertaining to , visual , visual perceptual and . Also, has . Ms. described in detail how the . (Tr. 747-749) noted that has been in touch with at school, once this year and with . Oftentimes will send worksheets to the via the mother, so that the will know what is doing with and continue it.

The opined that needs to continue after school because has and in school is insufficient to address them. Also, noted the is which is an optimal time to address so that they will not and while is still .(Tr. at

759) the student has made substantial this year. is able to use a that is more age appropriate, which has help to improve writing . is now able to , and letters. has become successful at simple . ability to correctly hold a has enabled to draw a person, to out a and a . is able to at a with a consistent , balance is better and has more . There is an improvement in causing to improve and to lessen the . use to and or a lot when was excited, these have been reduced because of improved . (Tr. 7767-769) Ms.. stated that never observed the student at or working with . recalled that the last time spoke to ’s school’s was in October or November, 2010. (Tr. at 776)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Two purposes of the s with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that with disabilities have available to them a free appropriate public education (FAPE) that emphasizes education and designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of with disabilities and of such are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-

07 [1982]).

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific of educational benefits that must be provided through an " (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not that provides everything that might be thought desirable by loving " (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). N theless, a school district must provide "an that is 'likely to produce , not ,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The recommended must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). Also, a FAPE must be available to an eligible student "who needs education and , even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade" (34 C.F.R. § 300.101[c][1]; 8 NYCRR 200.4[c][5]). for the next school year" (34 C.F.R. § 300.324[b][1]; 8 NYCRR 200.4[f]; see 20 U.S.C. § 1414[d][4][A][i]; Educ. Law § 4402[1][b][2]). A district must have an in effect at the beginning of each school year for each student in its jurisdiction with a disability (34 C.F.R. § 300.323[a]; ^[8] NYCRR 200.4[e][1][ii]; Cerra, 427 F.3d at 194; Tarlowe, 2008 WL 2736027, at *6 [stating "[a]n education department’s delay does not violate the IDEA so long as the department 'still ha[s] time to find an appropriate placement … for the beginning of the school year in September'"]; Application of the Bd. of Educ., Appeal No. 10-006; Application of a Student with a Disability, Appeal No. 09-111; Application of a Student with a Disability, Appeal No. 08-157; Application of a Student with a Disability, Appeal No. 08-088). ]). As a matter of State law, a school year runs from July 1 through June 30 (Educ. Law § 2[15]). Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

An appropriate educational begins with an that accurately reflects the results of to identify the needs (34 C.F.R. § 300.320[a][1]; the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the right to a FAPE, (b) significantly impeded the ' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008];

I have reviewed all the testimonial and documentary evidence. Clearly, the issue here is whether the DOE provided this child with a FAPE for the 2010-11 school years when it convened an meeting on April 21, 2010. The recommended a , covering through grade, with . In addition, the has for and ; the class is also being taught a , . (Tr. at 174 and 242-243)

The record has established that , the child’s , who has worked with from infancy to the present, has with - ( - ), / , significant , and .(Tr. at 401) (Exh. U) Ms. , current , described as having , , tends to use and with comprehension. (Tr. at 565) specifically stated that the has with , and . has what is being said to , with comprehending simple and . (Tr. 617-618) The described the with , visual , , planning and processing . with , , or a and has .(Tr.742-743, 747) The argue that the proposed placement was for several reasons, the needs dictate that have a to significant . There is ample testimony in the record, from , and attesting to the importance of said . (Tr. at 465, 500-501and 553-554) (Exh. U)

I find the proposed placement inappropriate because this is a student with global , attending deficits coupled with significant and as well as having physically moving around. The proposed placement has and five professionals teaching three grades in the classroom. In addition the class has to learn to speak a , . This class cannot adequately meet the child’s needs because a classroom professional cannot substitute for a New York State certified, trained education in the classroom. The can professionally address needs, such as keeping on task, providing the repetition needs to be successful and modifying assignments. This is a child who is highly . The recommended class for has three grades in class coupled with professionals running around attending to their . Undoubtedly, the proposed class would not be suitable to meet educational requirements, in fact, would be counter-productive. (Tr.411-413)

This is not a student who needs to be working on a since has and with English, surely a would be very confusing for and impede . The child’s across the board and tendency to regress over holidays support the ’ contention that a twelve is warranted to . The record is replete with testimony from those who actually work with to support the ’ position. (Tr. 306-307; 315-316 and 500-501) It is equally clear that the is necessary to address attending , learned in class and for the gross and fine . (Tr. at 314, 363 and at 434) And finally, it is apparent that the was committed to the and did not give due consideration to the ’ concerns with respect to a placement, a and an .(Tr. at 328, 500-501; 677-78 and 724)(Exh. L) The failure to properly consider the ’ request for the placement, the after school and a school year ultimately denied the an opportunity to “meaningfully” participate in the decision-making process concerning their and denied a FAPE. (Tr. 677-678 and 329-330)The Department of Education has failed to meet its prong burden, to provide the student with a FAPE for the 2010-11 school years.

Next, I must consider the appropriateness of the ’ placement at and educational obtained for the student. There is ample evidence in the record to show that the child has made slow and steady in . All the , including those who teach specials and service are New York State certified. The classroom staffing at is able to provide the student with ample, professional instructional time, in a group setting. The are able to provide a lot of visual and verbal prompting to keep on task. Also, the meaningful between the student and . school and current as well as have noted has made , and . ( Tr. 307-309, 515- 518 and 581-584) Ms. , , testified that has seen definite this year in the ability to with . is able to , engage in with and follow simple - . (Tr. 626-627) Ms. , the after school testified at length regarding made from the summer to the present. (Tr. 766-769) I find that with the and the after school secured for the student are appropriate to meet unique educational needs. The have met their burden.

Prong three, equities requirements weighed in favor of the . The participated in the meeting, provided school reports and other . They visited the proposed site as soon as it was made available to them. The wrote detailed letters to the , identifying the reasons why the proposed was not appropriate, n of which were answered.( Tr. 681-684 and 685-687) (Exhs. K,L and Z)

ORDER

1) The District shall continue at for the remainder of the 2010-11

school years.

2) The District shall continue the , for of , school at a of . , on a .

3) The District shall the for of school

on a twelve basis, at a rate of . , upon reasonable proof of provided. Dated: May 26, 2011

__________________________

THERESA R. JOYNER, ESQ.

Impartial Hearing Officer TRJ:jj

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the and/or the Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the s 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 petiti r, the date of mailing and the 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 JUNE 17, 2010

A Impartial Hearing Request,5/23/10, 4 pp.

B Findings of Fact and Decision, 1/13/09, 11 pp.

C , 10/8/09, 28 pp.

D Amended Order of Pendency, 8/24/09, 6 pp.

E Transcript of Impartial Hearing, 5/26/10, 4 pp.

DOCUMENTATION ENTERED INTO THE RECORD SEPTEMBER 23, 2010

F Interim Order, 6/22/10, 4 pp.

G Omitted

H DOE Motion to Dismiss, 7/2/10, 4 pp.

I Petition Response, 7/27/10, 5 pp.

J Report, 6/30/10, 21 pp.

K Letter to , 8/16/10, 3 pp.

L Letter to gin, 4/27/10, 5 pp.

M Report from , Undated, 6 pp.

N Report for 2/26/10, 3/10/10, 2 pp.

O Report, 2/17/10, 16 pp.

P Report, /4/09, 3 pp.

Q Summary and Score Report, /8/09, 1 p.

R Recommendation Summer 2010, 2 pp.

S Recommendation Fall 2010-2011, 2 pp.

T Consent for Re-Evaluation, 1/4/10, 1 p.

U Report from Dr. Packer, 7/9/09, 5 pp.

DEPARTMENT OF EDUCATION

1 , 4/21/10, 11 pp. 2 Meeting Minutes, 4/21/10, 5 pp. 3 and Report, 11/17/08, 2 pp. 4 Report, 1/30/08, 2 pp. 5 Report, 1/10/08, 3 pp. 6 and Report, 1/29/08, 2 pp. 7 Report, /5/08, 3 pp. 8 and Report, 2008, 2 pp. 9 Report, /9/08, 2 pp. 10 Report, 1/8/08, 3 pp. 11 Social Update, 3/9/10, 2 pp. Case No.: 127615

Report, Undated, 2 pp. 13 Classroom , 5/1/08, 3 pp. 15 Classroom Annual Report, 1/26/10, 3 pp. 16 FNR, 8/6/10, 1 p. 17 Due Process Response, 6/8/10, 4 pp.

DOCUMENTATION ENTERED INTO THE RECORD NOVEMBER 16, 2010

V Classroom Schedules, 7/29/10, 2 pp.

W Attendance Sheets, 9/21/10, 2 pp.

X 9/17/10, DOE Amended Due Process Response, 9/17/10, 3 pp.

Y 2010-2011 Least Restrictive Environment Statement, 2010-2011, 2 pp.

Z 9/20/10, Letter to , 9/20/10, 6 pp.

AA 2010-2011 Statement, 2010-2011, 1 p.

BB 9/20/10, Amended Hearing Request, 9/20/10, 6 pp.

CC Omitted

DD Annual Review Paperwork, Undated, 32 pp.

EE 8/1/10, Year End Report, 8/1/10, 3 pp.

FF Report for goals 2009-2010, 8/20/10, 22 pp.

GG Invoices and Proof of Payment, 7/2010-9/2010, 4 pp.

HH , 10/16/10, 5 pp.

DOCUMENTATION ENTERED INTO THE RECORD FEBRUARY 17, 2011

GG Pages 5 through 8

II Class , 9/10, 3 pp.

JJ Annual Review, 2/4/11, 3 pp.

KK Score Report, 1/21/11, 2 pp.

Footnotes

[8] NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate education (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01- 095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Subsequent to its , an must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087). 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 developed by its through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an legally inadequate under