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: June 23, 2010

December 6, 2010

December 17, 2010

January 11, 2011 Hearing Officer: Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 23, 2010

Student

of — DOE

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 6, 2010

Student

Student

Student

of — DOE

DOE

DOE

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 17, 2010

Student

Student

Student

of — DOE

DOE

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 11, 2011

Student

Student

Student

- — Student

of — DOE

On June 11, 2010, I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parents of ( ) year old student attending school and the New York City - Department of Education (“DOE”) - District , regarding the student’s special education .

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) made by the student’s Parent through her (s), the and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about June 11, 2010. The DPC is carried under New York City (“NYC”) Case No. . On October 4, 2010, the Parent’s filed an “amended” DPC. The Parent’s request to amended the DPC was denied by the undersigned because it was filed only (3) days before the impartial hearing which was scheduled on October 7, 2010. (See 8 NYCRR § 205(i)(7)) However, on the same day, the DOE consented to the Parent’s amended DPC. (T-92-3) Based on the DOE’s consent to the Parent’s amended DPC, the requested relief to be considered in this case is as follows:

1. That the DOE be ordered to reconvene the Committee on Special Education (“CSE”) and recommend the New York State approved private school “ ” for the student.

2. That the DOE be ordered to pay for the student’s Education (“ ”) for

(10) hours a week at an enhanced rate.

3. That the DOE be ordered to pay for the student’s for one hour of per week.

A motion for an Order on Pendency was made by the Parent’s (s) and a hearing was held on the same on June 23, 2010. On that date, the parties agreed to the following Order on Pendency “On Consent”:

ORDERED on CONSENT and pursuant to the pendency provisions under the IDEA, the student shall immediately to continue to receive the services provided under Findings of Facts & Decision issued by IHO on March 8, 2010, the cost of which is to be paid by the DOE upon receipt of reasonably satisfactory proof of said services having been rendered; and it is further

ORDERED ON CONSENT that a copy of the Findings of Facts

& Decision issued by IHO on March 8, 2010, shall accompany this Order on Pendency for reference.

Subsequent to the hearing on pendency, the impartial hearing in this case was held on December 6, 2010, December 17, 2010 and January 11, 2011. A list of the persons who appeared at the impartial hearing and the documents entered into evidence is xed hereto.

THE DOE’S CASE

The DOE argues that the student started at in the summer of 2009 in a . (T-20) She has been in the for a little more than a year and has shown progress academically, socially and . (T-21) The student’s is her and frequent . (Id.)

The DOE called (5) witnesses to testify on its behalf and submitted (5) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness is a who has been working at the DOE school for (4) years. (T-30-1) This year she has ( ) students with and ( ) students that are . (T-31) She has known the student since 2009. (Id.) The whole year they worked on having the student propelling a . (Id.) The student reached that goal in June. (T-31-2) She has not yet mastered the goal of catching a ball. (T-32) The student has progressed in that she can catch with verbal cues. (Id.)

On cross examination, the witness testified that she is working from the student’s March 2010 IEP. (T-33) To work on the student’s goals, she tells the student what to do, demonstrates it to her, ask her to do the task and gives her verbal cues. (T-35) Sometimes the student will and try to from the work. (T-37) There was never a time the student could not participate in the session with her, because of the student’s . (Id.)

The witness stated that the student can speak with her. (T-38) However, the student cannot speak without prompts. (T-39) The student does not initiate conversation. (Id.) On re-direct testimony, the witness stated that the student has only “ ” on one occasion. (T-41) On re-cross examination, the witness stated that she gives the student (2) times per week for (30) minutes a session. (T-41-20) During the sessions there is another student in the room. (T-42)

The DOE’s second witness is the student’s . (T-43) She started to treat the student in September of this year using the student’s March 16, 2010 IEP. (T-

48) In three months, the student has demonstrated the ability to complete a task in (30) minutes. (T-49) The student has progressed in that she can complete task, but she has not yet met the frequency requirements. (T-50) The student is not necessarily consistent. (Id.) If they continue with the student’s goals, she anticipates the student would meet her goals by next March. (Id.) The witness stated that she meets with the student’s teacher once a week. (T-53) The student’s handwriting is “coming along.” (T-55)

On cross examination, the witness testified that the student has with modulation and regulation. (T-56) Either she has too much energy or too little energy. (Id.) In order to help with the student’s arousal level, she gives the student deep pressure and proprioceptive input which has been shown to be very effective in helping with modulation. (T-57) The student cooperates in the sensory activities she uses on her. (Id.) The student speaks with her, but not spontaneously. (T-58)

The witness stated that at times the student will display friendly oppositional type where she will giggle and wiggle. (T-58-9) The sensory activities are out of the classroom. (Id.) She also “pushes” into the classroom typically when there are activities that involve grapho-motor skills. (T-59-60) She is working off the student’s March IEP and addressing handwriting skills. (T-60) The activities she is working on are related to the teacher’s work in the classroom at the time. (Id.)

The witness stated that she sees the student two days a week for (30) minute sessions. (T-62) The student is not often off task when they are working together. (T63-4) Handwriting is a little harder for the student. (T-64) She has worked with the student since September. (Id.) With sensory and visual support the student is able to attend. (Id.) There was no re-direct testimony taken from the witness. (T-65)

The DOE’s third witness is the student’s . (T-66) She has known the student since September of 2009. (T-68) The student has been able to master the goal of answering various “WH” questions relating to a short paragraph. (T-69) She works with the student in the classroom and during her group sessions, the student is “pulled” out with one other student to work on her social skills. (Id.) To answer “WH” questions, the student initially requires prompts and then can eventually do so independently with minimal prompts. (T-70) She has mastered this goal. (Id.)

The witness stated that they are working on describing the sequence of a story, the sequence of the student’s daily schedule and social language skills. (Id.) The student has mastered the ability to respond to a peer’s questions. (Id.) They are still working on the student’s ability to direct questions to peers, modifying the student’s and/or actions based on a peer’s response and initiating a request to a peer to play. (T-71) With verbal prompts, the student is able to initiate an interaction. (Id.) The skill is being generalized in the classroom as well. (Id.) At this point, the student’s ability to reciprocate an interaction requires minimal prompting. (T-73) Initiating interactions still requires prompting. (Id.)

On cross examination, the witness testified that she sees the student two times individually and one time in a group of two. (T-74) She sees the student out of the classroom in the area and “pushes” into the classroom as well. (Id.) She consults with the student’s teacher on a daily basis. (T-75) In September of 2009, the student was not able to produce spontaneous . (T-76) Today, the student is capable or responding spontaneously and initiating when she is very motivated. (Id.) The student is not consistent in her and her responses. (T-79) She has not been able to determine why. (Id.)

On redirect testimony, the witness testified that the student has language deficits. (T-81) With more time, she sees the student meeting her IEP goals. (Id.) On re-cross examination, the witness testified that the student is classified as having “ .” (T82)

The DOE’s fourth witness is the student’s teacher in a 6:1:1 class. (T-101) She is a full time special Education teacher for District (T-108) She first met the student in September of 2009. (T-109) The student was very limited in her academics and very oppositional. (Id.) She has made progress. (Id.) The student did not know many sight words, but knew most of her letters. (T-111) The student has made progress towards her goals. (Id.) She knows about (10) sight words and about (20) letter sound combinations. (Id.) The student is also able to count to a hundred by ones, fives and tens. (T-112) Previously she was only able to count up to (30). (Id.) The student has also been taught to draw her own picture to help her add and subtract independently. (Id.)

The witness stated that the student is responding to every question given to her. (T-113) Her responses are coherent and appropriate to whatever question is asked of her. (Id.) When the student first came to her, she did not want to do any work. (Id.) Now she can complete an activity on her own. (Id.) The student can sit through an entire read aloud, which can last up to (15) to (20) minutes. (T-114) She can also follow task that include three to five different steps. (T-114) The student can also transition independently and instead of speaking in a monotone, almost robotic voice, she is able to speak with more appropriate voice. (T-115)

The witness stated that the student has mastered her math goal to read, write and count to (100) on Her March 16, 2010 IEP. (T-115-6) The student is exceptionally well in answering “WH” questions and has mastered those goals. (T-117) She is making progress to her ELA goals. (Id.) However, sometimes the student is inconsistent with her performance in ELA. (T-118) Over the long term, the student has made tremendous progress. (T-119) She uses different strategies with the student, including the school wide “PBIS” plan, a token system and a “first then board.” (T-119-20) A “first then board” is a visual support to help accomplishing a task. (T-120) If a student is not following directions or is trying to catch somebody else’s attention in a negative way, they try to ignore the . (T-121)

The witness stated that “Emotional Literacy” is a that was implemented this year to teach students how to talk about their . (T-123) The “ ” is a structured method in language education. (T-124) It is a multi-sensory approach to teaching reading. (Id.) With the the student has learned about (20) or so phonemes (“letter sounds”) and (8) to (10) words, not including sight words. (Id.)

The witness stated that the student gets work every day except Friday. (T-125) The work should only take between (20) to (30) minutes to do. (Id.) She has not received any feedback from the student’s Parents concerning work. (Id.) The “ book” gets sent every day and is returned to school daily. (Id.) She writes in the communication book daily. (Id.) She has not seen a reply from the Parents in the communication book the entire year. (T-126) Last year she received approximately two responses. (Id.) The student has been absent quite a few days this year and has many more than . (Id.) Transitions can be very difficult for the student after a long absence. (T-127)

On cross examination, the witness testified that she has an “initial” license as a Education . (T-128) She was the student’s for the 2009-2010 school year and for four months for the September 2010-2011 school year. (T-129-30) She did not teach summer school. (T-130) There are ( ) student’s in the class. (Id.) There are ( ) in the class including , , and one . (T-131) is a and the other is the classroom . (Id.)

The witness stated that she has determined that the student has mastered “eight sight words” because she had a tracking sheet. (T-134) The student has mastered (15) letter sound combinations. (T-136-7) The student can also write her first and last name, legibly and without prompting. (T-138) She can copy from the board without prompting, but sometimes she will engage in “ .” (T-140) Sometimes the student can be . (T-141)

The witness stated that sometimes the student’s with her education, but currently she does not have a . (T-142) Most of the time, the student can count from one to one hundred without prompting. (T-142-3) If the student chooses not to participate, she does not get rewarded. (T-144) The student used to throw “ ” on the floor, but now she can work with or without them. (T-145) She has no problem answering who, where, what questions and can attend to the lesson for (10) or (15) minutes. (T-146)

The student is able to write a reading response to a “ .” (T-147) Maybe once a week the student will exhibit - . (Id.) If it’s (5) to (20) minutes, the student is able to through the entire read . (T-148) The student can give her attention for at least five minutes. (T-149) She can do any two directions given to her and has no now. (T-150) The student is also now able to speak in a big . (T-151) She also is able to sit appropriately. (T-153) All of the student’s goals were mastered in June of 2010. (T-154)

The witness stated that the student has not another student or this year. (T-

159) The student can be “friendly” oppositional. (Id.) She believes these were being exhibited at the time of the March 16, 2010 IEP meeting. (T-161) The student has been to towards other students from September to the present. (T-161-2) The student does not have a plan because her is being addressed by her. (T-162) However, they are in the process of making a plan for her. (T-163) Everything is communicated with the Parent through the communication book. (T-164)

The witness stated that she has not discussed the student’s lateness with the Parent, but knows that she is aware of it. (T-166) The student is receiving and language, , and . (T-167-8) She has discussed the student’s educational with the School Based Support Team and participated in the student’s Educational Planning Conference Annual Review Meeting. (T-168) “ ” stands for “positive and .” (T-170) is really anything that is opposite of what is being asked. (Id.)

On re-direct testimony, the witness testified that the is a system of consequences and rewards. (T-171) “ ” is just another strategy for dealing with . (Id.) On re-cross examination, the witness stated that the is not an individualized plan. (T-172) It is a plan for the whole class with additional strategies to support each of the children. (Id.)

The DOE’s fifth and final witness is the Unit at the student’s school. (T-174) She oversees the everyday of the school , “the actions of the of .” (T-176) She did the initial intake of the student at the school two years ago. (T-177) The witness stated that she sees the student a couple of times a day. (T-177-8) The student is usually brought to school by her . (T-178) The school day starts at but the student usually arrives between and . (T-179) “Today”, the student arrived at , the other day it was , after and the other day she arrived at . (Id.) This was discussed with the Parents a couple of times. (Id.) For a time, there was a little bit of improvement. (Id.) However, since she returned to school, she has come in after on both days. (T-180) The student has been about (10) to (15) days so far this year. (Id.)

The witness stated that recently the student was out of school for about a week. (T-181) They were not given the reason for the student’s absence. (Id.) When the student returned, they found out that the was in . (Id.) The Parent also told them that a couple of the student’s were related to the scheduling of her other children and that there were vacations that did not coincide with the student’s schedule. (Id.) Some of the student’s days off were for . (T-182) The Parent also told her that she has a hard time getting the student up in the morning. (Id.) The Parent also said that one of the main reasons she brings the student to school is because the school bus comes earlier and she can’t get the student up in time to get her on the bus. (T-182)

The witness stated that they tried to offer the Parent “ ” and s like “ ” that come to the and work with that have children with disabilities. (Id.) No response was received from the Parent. (T-183) The student started with her in July of 2009. She has seen steady improvement in the student. (T-184) When the student arrives at school in the middle of instruction it is much more to get her involved and her outcomes are more inconsistent. (T-187) When the student is absent for a couple of days or a week, it’s like starting over again with her. (T-188) The student’s sends her because she is on a . (Id.)

On cross examination, the witness testified that she is at the school five days a week. (T-191) There are ( ) classes. (Id.) A placement at her previous school was not appropriate for the student. (Id.) She does an intake when the students come to the school. (T-192) She sees the student throughout the school and her office is always open. (T-194) When a student has a time they are brought to her office. (Id.) From September to the present, she has no recollection of the student exhibiting maladaptive . (T-195) To her knowledge, the school has continued to work with the student on her and her . (T-196) It is her understanding that the student is doing very well. (Id.) She does not know if the student has generalized her and hair at . (T197)

The witness stated that she has seen the student an , but not another child. (T-198) She has from classroom that the student will use different . (T-198-9) The student exhibits that with the of others. (T-199-00) After the meeting that was held “yesterday”, the student’s classification was changed from “ ” to “ .” (T-200) They take weekly data on students’ ELA and math goals. (T-

202) The classroom enters the students’ information in a “ .” (T-203-4) She does not know what the acronym “SWIS” stands for. (T-206) A “ ” is any that poses a to either themselves or others. (T-207) Not all of the students have a functional . (T-209) However, any student with a to has to have a plan. (T-210)

The witness stated that the student did not have a because she was responding to the strategies used for the entire class and there was significant and steady improvement in her . (Id.) The school was trying to work with the student but was having a time doing so. (T-211) The student has with and , but has never been brought over to her office. (T-211-2) She was the Unit in July and August of 2010. (T-212) Whatever the student may have exhibited were managed within the classroom. (T-212-3) She does not know if the student saw a , but her mandated services included . (T-213-4) The student did see her , and . (Id.) The unit has more than one counselor. (T-214) They also have a “School Based Support Team.” (T-215)

THE PARENT’S CASE

The Parent argues that the DOE is aware she is having with the student. (T-22) At the present time, the student is receiving hours of services in the attempt to address those issues. (Id.) The student is frequently absent because of issues related to her disability which is . (Id.) The student’s Individualized Education (“IEP”) dated March 16, 2010 is not reasonably calculated to allow the student to make educational progress. (Id.) The Parent proffers that without a set of services, the DOE recommended are not appropriate because the student cannot transfer skills from one domain to another and requires additional support. (T-23)

The Parent called (4) witnesses to testify on her behalf and submitted (3) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness is the student’s “ ” . (T-227) She has a education certification. (T-228-9) She has been working with children who have since 2002 and has received extensive training. (T-229)

The witness stated that a “ ” is a person who looks closely at maladaptive to discover their purpose and how they can be addressed. (T-230) She worked with the student from October of 2008 to August of 2009 and resumed working with her in February of 2010 to the present. (T-231) Academically, the student was exhibiting and socially her was very . (T-231-2) In 2008, the student’s were primarily readiness s. (T-232) Her focus was to help the student essentially the /school gap. (T-233)

The witness stated that the student started to make some good progress. (T-234) When she returned to work with the student in February of 2010, she felt that the student had lost a lot of skills. (T-235) The student was not initiating conversations or making appropriate contact. (Id.) The School did not have her observe the student doing work. (Id.) Through notes, the student’s said she was , and being - . (T-236) She believes the student’s were not trained. (Id.) The student’s are either to get or work. (T-237) If a can , it means that it is being reinforced. (T-238) She has never been invited to the student’s IEP meetings. (T-240) She went to the student’s school once because somebody told the student’s that it would be too much of a to have her there. (T-241)

The witness stated that she sees the student (5) days per week for (10) hours. (Id.) Her sessions vary from one hour to three hours. (T-242) She returned to work with the student when the Parent was awarded a . (Id.) The Parent pays for her to be supervised by an independent board certified to come in and . (T-242-3)

On cross examination, the witness testified when the student’s service was changed, she got at instead of . (T-244) She is confined to working with the student whenever she gets . (Id.) She has other students that she has to work with. (Id.) It could take a long time to do the student’s work. (T-245) However, the student’s resistance to work has decreased because she does not reinforce her avoidance . (Id.) Her have diminished also, although she believes they are still occurring in school. (T-246) Because she does not reinforce the student’s “ ” , it decreased. (T-247)

The witness stated that she uses (“ ”) with the student. (T-249) She has not conducted a formal of the student. (T-252) The Parent has filled out an “ ” chart with data on the student’s which she has seen. (Id.) The “ chart could be like a . (T-253) A is not a part of the student’s IEP. (Id.) The IEP drives her services. (Id.) She has written in the communication book, but not frequently. (Id.) She has advised the Parent not to give the student anything to before because she has been the . (T-255) The student has a “picture schedule” to learn to get herself independently ready for . (Id.) The Parent has getting the student up in the . (T-256) However, she is not there in the and cannot testify as to what happens. (Id.)

The witness stated that because it takes so long to do the student’s work, she cannot address the student’s skills. (T-256) The student does not have spontaneous and does not initiate. (T-258) It takes a lot of prompting for the student to use her words. (T-259) The prompts are decreasing over time and the student’s desired are appearing. (Id.) She is trying to reinforce the student’s spontaneous but it is not happening yet. (T-260) When you ask the student a question, she may or may not answer. (Id.) The student’s reading is improving , but she is not able to read independently. (T-263) She does have tendencies but does not exhibit them with her. (Id.) Although she is not a , she has experienced a lot of changes with the student’s voice and her . (T-265)

On re-direct testimony, the witness stated that the student uses as an . (T-

266) The student will grasp and reach for things, but she will not use language. (Id.) The student requires prompts to use language. (T-267) They are in the “ stages”, but they are making progress with language. (T-267-8) The student has a few sight words. (T-268) In June of 2010, the student had three sight words, could write her first and last name with prompting, her counting skills were not good, she was not able to recognize all of the numbers, could not add manipulatives without prompting or answer who, what ,where questions and could recite aloud although she was not reading. (T-269-

72) She could follow very few two step directions without prompting and could sit in a seat appropriately for (5) minutes without redirection. (T-273)

The witness stated that the student is not meeting her March of 2010 IEP goal in that is working on “phonemes” and there were about (20) of them that she was unable to express and identify receptively or expressively. (T-274) Neither is she able to identify

(15) sight words. (Id.) She does not anticipate that the student will be able to reach her goal of counting to (100) by March of 2011. (T-275) The student can verbally count, but she is not able to identify the numbers. (T-276) She collects data on the student’s progress, but not on her . (T-277)

On re-cross examination, the witness testified that she has very little information on the “ .” (T-278) The student’s was not able to explain the to her. (Id.) She does not know what questions they are using with the student in school because they are not shared with her. (T-279) She is not “ ” certified. (T-281) A “ evaluator” could be the equivalent of a ” (T-282) There was not re-cross examination of the witness. (Id.)

The Parent’s second witness evaluated the student in 2008 and has seen her on occasion since then. (T-299) He is a board certified who has been in private practice since 1989. (T-301) From 1993 to 2003 he worked for the DOE. (T-302) He is the at a for to grade children with several . (Id.) In 2008, he diagnosed the student with “ ” using the DSM-IV criteria. (Id.) He found that the student has in - such as -to- or using expression, , to develop appropriate , appropriate development level, a lack of spontaneous seeking to share enjoyment and a lack of social or emotional reciprocity. (T-305-6) The student also has and in the ability to initiate or sustain a conversation. (T-306)

The witness stated that when he met with the student he had assessments and “checklist” reports from the Parent and the school which he had them fill out. (T-307) He does not remember having direct contact with the student’s . (T-

308) He recommended that the student be in an . (Id.) At the time, the student was getting some and had a one-on-one “ ” teacher which he wanted her to continue with. (Id.) He saw the student again on February 17, 2010. (T-

309) At that time, he really felt that the student still needed the and the . (Id.) He saw the student again in December of 2010. (T-311) She was still exhibiting a lot of the same , did not want to answer, interact and was or her . (Id.)

The witness stated that he discussed putting the student in a new high-functioning school for children, but it wasn’t clear to him that was the best for the student. (T-312) He does not agree with the student’s new classification as “ .” (T-

313) He deals with children every day. (Id.) The DOE is the only agency still using that classification. (T-315) In ,“ ” is not a diagnosis. (Id.) Almost all children can fit the “ ” classification. (T-316)

On cross examination, the witness testified that when he evaluated the student in 2008, she had some specific motor , her own way of doing things and her own ritual. (T-319) There wasn’t much question to him about the diagnosis, so he did not go back and recheck every single criteria. (T-320-1) The is is the in and interaction which the student clearly had. (T-321) such as “ ” often as a person with becomes an . (Id.) He agrees that a student classified as “ and ” would also have some . (T-322) He does not have the student’s IEP and does not know what was considered in changing the student’s classification to . (T-323) He did consider the possibility of the student having an or a . (Id.) It was pretty clear to him that no other diagnosis other than fit the student. (T-324) The student does have , but the question is what is primary. (Id.) Also, children with a usually do not present with and/or . (T-325)

The witness stated that a is a part of . (T-327) The “checklist” were not used in subsequent meetings with the student after 2008. (T-329) He did not observe the student in school or at . (T-331) The was not given a checklist to complete. (T-331-2) He did speak with the Parent somewhat about trying to create a good structure at and good . (T-333) “ ” was discussed in February. (T-335) He has not had direct contact with the student’s . (Id.) There was no re-direct testimony taken from the witness. (T-336)

The Parent’s third witness her in- . (T-337) She is a board certified . (T-339) She is the of at “ for the ” for five years. (T-340-

1) She is a “ ” for four years now. (T-342) She has been the student’s at for two years. (T-343) When she put the student’s together, she made sure that it was based on her education plan. (Id.) The employs with the student. (T-344) She writes specific plans for the teacher based upon the student’s IEP from that year. (Id.) The are administered through discrete trials. (T-345) The student’s math goals are broken down into very simple steps. (Id.) A plan was not written for the student because they do not need one at . (T-346) The student’s attention seeking are ignored, but they keep the demand of the student when she engages in escape . (T-347)

The witness stated that she worked with the student during the 2010 calendar year. (T-348) She would always look in the communication book so that she would be consistent with what they were doing in school with the student. (T-349) Most of the excerpts described the student’s maladaptive . (Id.) that happen over and over again are being reinforced. (T-350) The student needs a mainly to generalize the skills that she is learning in to the environment. (T-

351) This year the student has , last year there were or . (T-353) She usually goes to the student’s twice a month for about (4) hours peer month. (T-

354) She also communicates with the via e-mail. (Id.)

The witness stated that the student has progressed at . (T-355) Last year she attempted to contact the student’s school . (Id.) She never received a response. (Id.) Last year she wrote in the communication book but did not receive a response. (T355-6) She agrees with the student’s March 16, 2010, that there are times when the student’s put a halt on her academics. (T-356-8) But she doesn’t agree that they significantly decreased at school. (T-358) The student can speak when she wants to. (Id.) She has seen the student’s vocal tones change. (T-359) The student’s IEP goals seem lofty unless they are broken down into very simple steps. (T-360) The student’s IEP goal to identify (15) sight words is reasonable. (Id.) She does not know what “goal tracking sheets” are. (T-361) The student’s reading, writing and counting goals all have to be broken down into very simple steps for the student. (T-362)

The witness stated that she reviewed the communication book about a month ago. (T-364) Although it stated in the communication book that the student did things for no reason, there is always a . (T-365) She is not sure that the student is progressing in the general curriculum. (T-366) Based upon her reading of the communication book, she believes that the student’s classroom may not understand her disability. (Id.) She is paid $ per hour by the Parent. (T-367)

On cross examination, the witness testified that she is not a licensed . (T-386) It is necessary for her to the because somebody needs to organize the goals. (Id.) The need to know how to get the student ready to learn. (T-369) She took the student’s IEP goals and made them more doable for the student. (Id.) There is no plan at because they just discussed what to do. (T-370) She saw exactly what was going on when she was at the and “modeled” for the teachers. (Id.) She started working with the student in 2009 and her have decreased at . (T-373) The student’s are more than half of the entries in the student’s communication book. (T-374) She can tell that the student’s classroom teacher is , but she has not spoken with her. (T-375)

The witness stated that she has not given her contact information to the classroom teacher, but last year she did. (T-376) The IEP goal does not tell you the methodology or how to teach it. (T-377) She does not know what they are doing in the school. (Id.) She does know how the student learns best. (T-378) The student has to be prompted. (Id.) It’s called “errorless teaching”, where you don’t let the student make a mistake and fade away the help until she can do things on her own. (T-378-9) She is not familiar with the “ ” curriculum. (T-379) She models and role plays using . (T-380) The student does imitate. (T-381)

The witness stated that she works in a school and trains education all day. (T-

382) A “token system” should be used with a child like the student who needs visuals. (Id.) She was not aware that there is a “token system” and an “if then board” in the student’s classroom. (T-382-3) However, if you keep seeing inappropriate , then that tool is not being used correctly. (T-383) She doesn’t know the student’s progress in school. (Id.) However, a few months ago she saw the student’s report card but can’t remember exactly what it looked like. (Id.)

The witness stated that there is no other empirically based approach to other than . (T-384) She does not know what being “ ” means when it is written in the student’s communication book. (T-385-6) She is not familiar with any difficulty the student may have with her morning routine. (T-388)

On re-direct testimony, the witness testified that every education should qualify to write IEP goals, but not a . (T-390) It’s really about how you implement goals and break them down. (Id.) “ ” qualifies you to develop an entire . (Id.) The student’s last assessment and progress report indicated that she did have some sight words. (T-391) There was no re-cross examination of the witness. (T-392)

The Parent’s fourth and final witness is the student’s . (T-394) The student was first diagnosed with a “ ”, before she was diagnosed with . (T-395) The student attended and received “ , and .” (T-

396) She was placed in a education . (Id.) When the student started to exhibit a lot of , they did a evaluation. (T-396-7) She was told that the student belonged in a class. (T-397) However, she did not believe the student should be in a class with students who were lower functioning. (Id.)

The witness stated that she found the class for children who were of the “ ” and who needed additional . (T-398) This is where the student currently attends. (Id.) It is a and last year there were ( ) and during the 2009-2010 school year. (T-399) The was started right after the student got her diagnosis in June of 2008. (T-401) Then they lost the service for six months until they went through a hearing. (T-402) During those six months the student lost lots of her skills. (Id.) They have not regained those skills. (Id.) The student now receives (10) hours a week of services paid for by the Parent at $ per hour. (T-403) The student went from ( ) to ( ) when they restarted the . (Id.)

The witness stated that the student will not comply for her like she does for the teacher. (T-404) She has having the student go to at . (T-405) It is very hard to get the student up. (Id.) you cannot awake the student and she just to . (Id.) Sometimes they are late for school. (Id.) In September the school came late every , sometimes at and other times at . (Id.)

The witness stated that she recalls attending the student’s IEP meeting on March 16, 2010. (T-406) She agreed with the student’s continued placement in a class. (Id.) She did not ask the DOE for anything else at the meeting. (Id.) In the Spring, she believes that she asked for a private school. (T-407) She was told that the student would have to be evaluated first. (Id.) Afterwards, the student was reclassified as “ .” (T-

408) She does not agree with the classification because the student is . (Id.) The DOE did not do an “ ” test or any other test to assess if the student has . (T-409) In the communication book, they only say the student has the same , there is some and that the student acts silly. (T-409)

The witness stated that maybe overall, the student has gained some kind of knowledge. (T-410) However, she is still on the level and she is in the grade. (Id.) She wants the student’s to continue. (T-411) She is also requesting a school that is geared for children with . (T-412) The “ ” school is a New York State approved school. (Id.) They agreed to accept the student back in August. (T-413) It would be an school. (Id.) If she was in that school, the student would still require the to be able to transition and use those skills at . (T-413-4)

On cross examination, the witness testified that before the student was diagnosed, she was just a student with . (T-417) She was told that the student needed a placement and that the classes at the DOE are basically just . (Id.) She was told that they could not handle the student’s that included in class, on the top of and things . (T-418) She has visited the school a number of times. (T-419) She believes the classroom tries to reason with the student because that is what she sees in the communication book. (T-420) The asked her what she does at and she interprets that the classroom doesn’t know what to do. (T-420-1) The teacher has visited the school and told her that they are reinforcing the student’s . (T-421)

The witness stated that the has been this year. (T-422) Last year it wasn’t as bad as this year. (T-423) The student has up. (Id.) She did not request a reevaluation, but they told her that it was needed to ascertain whether the student needs a placement. (Id.) The teacher at school often says the student would and the teacher will then do the “sheet” sent by the classroom . (T-429) She also get pages where she sees a lot of doodling. (T-430) There was no re-direct testimony taken from the witness. (Id.)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Parent in this case argues that there are disputed issues for the student’s 2010-2011 school year. (DPC) The student in this case is a “twelve month” student. (D-1) Accordingly, the relevant IEP in this case is the IEP dated March 16, 2010, created for the school year beginning in July of 2010. (Id.) The Parent agrees with the IEP’s recommended placement in a 6:1:1 class. (T-

406) She did not ask the DOE for anything else at the IEP meeting. (Id.) At a subsequent, IEP meeting held during the impartial hearing, the student was re-classified as “ ” (T-408) The Parent disagrees with the student’s new classification. (Id.)

The fact that the DOE changed the student's classification during the impartial hearing is not proof that the March 16, 2010 IEP was defective. The law is clear that hindsight is not a basis for questioning the appropriateness of an IEP, but that the IEP should be judged as a "snapshot" of the student at the time of the CSE meeting. (See SRO No. 03-011, citing Roland M. v. The Concord School Committee, 910 F.2d. 983 at 922 [1st Cir. 1990])

A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (See Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 (1982)) The student’s recommended must also be provided in the least restrictive environment (“LRE”). (See 20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b) & 8 NYCRR §200.6(a)(1))

Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school ; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of of the school district, this may also be the same individual appointed as the special education / , or the school ; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education / , the school , the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school , if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional of a student with a disability in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.

In this case, the CSE team was missing a school and a . (P-A) It is the duty and responsibility of the CSE to ensure that a Parent can effectively participate at the CSE review. SRO Decision 02-013 provides relevant analysis in this regard:

It is well settled that an IEP prepared by an invalidly composed CSE is a nullity (Application of a Child with a Disability, Appeal No. 99-27;

Application of a Child with a Disability, Appeal No. 95-8). Respondent argues that petitioner did not raise the issue of a parent member of the CSE at the hearing. I note, however, that petitioner’s attorney inquired of respondent’s witnesses whether a parent member was present.

The law requires that an additional parent member participate in the CSE meeting unless the student’s parents have affirmatively requested that the additional parent not participate (Educ. Law § 4402[b][1][a][viii]). I disagree with the hearing officer that the parent effectively waived the presence of a parent member simply on the basis of attending the meeting with an , and because she failed to complain at the meetings or at the hearing. A parent must affirmatively request that the parent member not attend the meeting in order to waive the requirement, which is otherwise mandatory (8 NYCRR 200.5 [c][2][v]; Application of a Child with a Disability, Appeal No. 01-096;

Application of a Child with a Disability, Appeal No. 01-079)….There is nothing in the record to suggest that petitioner requested in writing that the parent member not attend the 2001-02 annual review….

Respondent argues that the role of the was filled by the parent’s legal

, especially since she resided in the district and had a child with a disability. I do not find this argument persuasive, as it is the school district’s responsibility to have a properly composed CSE, including a parent member appointed by the Board of Education. Since there was no parent member of the CSE present any of the three annual review meetings, the 2001-02 IEP was not prepared by a validly composed CSE and is a nullity. I therefore do not need to discuss the other procedural and substantive issues related to the IEP.

However, while school districts are required to comply with all IDEA procedures, it is also true that not all procedural errors render an IEP legally inadequate under the IDEA. (See 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. (See J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). The Second 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." (See 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, the IEP must be likely to provide some "meaningful" benefit. (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]).

Here, the March 16th IEP continued the student’s as recommended by her report dated March 15, 2010. (D-3 & D-1) The student’s private diagnosed the student with , which is the student’s classification on the IEP. (T-302 & D-1) He recommended that the student be placed in an and an . (T-308-9) The IEP recommends that the student be placed in a class in a school with related services. (D-1) This is the DOE placement for children with . They use a multisensory approach to teach reading in the student’s class. (T-124) The student’s uses different strategies with the student, including the school wide “ ” plan, a token system and a “first-then board.” (T-119-20)

There was ample testimony that the student has progressed and is meeting her IEP goals. (T-31-2, 49, 69-70, 76, 109, 111-2, 115-6, 134, 154, 267-8 & 355) Testifying for the Parent, the student’s stated that the student has started to make some good progress. (T-234) The Parent stated that maybe overall, the student has gained some knowledge, although she is in the grade and still at a level. (T-410) The IEP requires the student have a highly structured routine with the support of a classroom . (D-1) The student is in a class with ( ) students, a , a , education ,a and a classroom . (T-131 & D-1)

The student’s is said not to with her . (D-1) The student’s said that sometimes the student’s interferes with her education. (T-142) The student does not have a , but she is addressing the student’s . (T-162) They are in the process of making a plan for her. (T-163) The student is said to be responding to the intervention strategies used for the entire class and that she has made significant and steady improvement in her . (T-210) The board certified analyst who the student’s said that a plan was not written for the student at , because they don’t need one. (T-339 & 346) They just “discuss” what to do concerning the student’s . (T-370)

Based on the record before me, I find that the March 16, 2010 IEP has produced progress, not regression and that the student has made more than mere "trivial advancement" under the same. (See Cerra, supra) The March 16th IEP has provided the student with a "meaningful" benefit. (See Mrs. B. v. Milford Bd. of Educ. and Viola v. Arlington Cent. Sch. Dist., supra).

The Parent wishes for the student services to continue and for those services to continue to be by an . ( DPC & T-401-2) An IEP must include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the modifications or supports for school personnel that will be provided to the student. (See 34 C.F.R. § 300.347[a][3] & 8 NYCRR 200.4[d][2][iv]) Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals. (See 34 C.F.R. § 300.347[a][3][i] & 8 NYCRR 200.4[d][2][iv][a]) "[S]pecial education and related services must be provided in the least restrictive setting consistent with a [student's] needs." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998])

"Supplementary aids and services" means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable students with disabilities to be educated with - students to the maximum extent appropriate in accordance with the least restrictive environment. (See 8 NYCRR 200.1[bbb]; 20 U.S.C. § 1401[29] & 34 C.F.R. § 300.28)

The DOE may be required to reimburse a Parent for his or her expenditures for private educational services obtained for a student by his or her Parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parent were appropriate, and the equitable considerations support the parent's claim. (See Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] & Cerra

v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). An appropriate educational begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (SRO 04-046; 02-014, 01-095 & 93-9).

Here, the record indicates that the student’s IEP services have allowed her advance appropriately toward attaining her annual goals. The testified that he really wanted to the student to continue with her . (T-308-9) However, his evaluation was not submitted in evidence and his testimony was only conclusory in supporting continued services. (Id.)

The Parent testified that the student lost her services for six months and lost her skills during that period. (T-402) But she did not ask for a at the March 16th IEP meeting, and as indicated above, the student is progressing with her current IEP services. (T-406 & supra)

The student’s current provider said her focus was to help the student essentially the /school gap. (T-233) However, she conceded that she does not write in the student’s “communication book frequently. (T-253) She does not help the Parent with the student’s in getting up in the and getting to school on . (T-256, 126, 178-9, 182, 187, 405 & 423) The does not communicate with the student’s classroom and has not given the her contact information this year. (T-376) She does not know the student’s progress in school. (T-383)

The services provided by the DOE in this case are neither inadequate nor inappropriate.

For all of the reasons above, I do not find a basis in the record to continue the student’s services. As such, there is no basis to continue the services of the either. The

Parent also requested that the DOE be ordered to reconvene the CSE and recommend the New York State approved private school “ ” for the student. (DPC) A student’s placement must, at a minimum, be evaluated yearly. (See 34 C.F.R. §300.552(b)(1) & 8 NYCRR 200.4[f]) The purpose of the minimum annual review requirement is to enable the DOE and the Parent to monitor the student’s progress, and if necessary, make changes to the student’s or placement. The Parent’s request in this regard is inconsistent with federal and state regulations, and cannot be granted. What’s more, there is nothing in the record about the “ ” school, the services it provides and whether those services are appropriate for the student, sufficient to sustain a finding that the student should be placed thereat.

Finally, the Parent requests that the DOE be ordered to pay for the student’s for one hour of per week. As indicated above, I find that the student’s IEP appropriately and adequately provides sufficient services for the student. Accordingly, I must deny the Parent’s requests for a for one hour of per week.

Now therefore, it is hereby

ORDERED that for all of the reasons stated above, the Parent’s requested relief in this case is DENIED in its entirety.

Dated: April 20, 2011

______________________

ESQ.

Impartial Hearing Officer

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 Impartial Hearing Request, 6/11/00, 3 pp. B Findings of Facts & Decision, 3/08/10, 16 pp. C IEP, 3/16/10, 16 pp.

DEPARTMENT OF EDUCATION

1 IEP with Report to Families, 3/16/10, 20 pp. 2 Progress Report, 3/11/10, 1 p. 3 Progress Report, 3/15/10, 1 p. 4 Educational Update, 6/23/10, 3 pp. 5 Attendance Records, 11/30/10, 2 pp.