Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: Student‟s Name: Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: September 7, 2011

November 17, 2011

November 22, 2011

November 30, 2011 Actual Record Close Date: December 14, 2011 Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 7, 2011

Attorney Attorney Dept. of Education (via telephone) — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 17, 2011

Attorney Mother — Parents

Attorney — DOE

IEP — DOE

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

Attorney Mother — Parents

Program Director of the — Parents

Therapist (via telephone) — Parents

(via telephone) — Parents

Attorney — DOE

Special Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 7, 2011

Attorney — Parents

Attorney — DOE

On June 17, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, (IDEA) 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York, regarding the special education program of Dylan B. (hereinafter the Student). The hearing was convened at the request of the parents through their attorney that was received on June 16, 2011 and amended on July 12, 2011. Hearings were held on September 7, 2011, November 17, 2011, November 22, 2011 and November 30, 2011. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present its positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the requests for extensions of the compliance dates were granted. The current record close date is December 14, 2011 and the compliance date for issuing a decision is December 27, 2011.

The hearing was requested by the parents to challenge the May 23, 2011 review and recommendation of the Committee on Special Education (“CSE”) and to obtain funding for the ”), a private entity lacking New York State Education Department approval. The parents brought the hearing seeking reimbursement/prospective payment for the tuition for the program at the for the 2011-2012 school year. The parents also seek reimbursement for evaluations. The parents submitted an invoice dated November 15, 2010 in the amount of $1,250 for the evaluation (Exh. L at 1) and an invoice dated December 21, 2010 for , for a Evaluation in the amount of $1,000 (Exh. L at 2) and an invoice from the dated November 11, 2011 indicating proof of payment for check # 782 in the amount of $2,500 with the date of payment of May 12, 2011 and a DOE wire transfer in the amount of $39,479.17 with the date of payment of October 13, 2011 (Exh. M at 1). The parents further submitted a copy of the check in the amount of $2,500 (Exh. M at 2) The parents requested the cost of a transportation paraprofessional and special education bus transportation, but the DOE representative stipulated that the parent was entitled to a transportation paraprofessional and special education bus transportation (trans. 343).

BACKGROUND

The Student is an year old boy who is classified with (Exh. L at 2). He currently attends . The Student was diagnosed with at the age of and received since months of age with related services of ”) and ”) (Exh. F at 2). He attended a therapeutic for 2 years with a paraprofessional He attended public school at from grade where he was assigned to a classroom setting (Exh. F at 3; J at 1). On December 18, 2009, the CSE met and drafted and Individualized Education Program (“IEP”) that recommended that the Student be placed in class with a staffing ratio of or 6 children and 1 special education teacher with related services of (Id.) The Student was not successful at the public school placement and was placed at the for the 20102011 school year. The parents removed the Student from after they observed a in his after grade and placed the Student at . The parents noted the setting with an individual paraprofessional and individual was not able to address his (Exh. J at 1).

Dr. , Ph.D conducted a Evaluation on September 17, 2011 when the Student was years old. Dr. noted the Student was in the and was and was towards and others and , that . She further noted that his parents needed to times (Exh. F at 1). Dr. remarked that the 2009-2010 school year was difficult as the Student‟s escalated and resulted in him . She further noted his without provocation to and the continued “ ” and was prescribed ( ) in the Spring of 2010 (Exh. F at 2; J at 1). She noted that the Student wore and (Id). She reviewed the educational services the Student received and noted that the Student attended a for 2 years with a paraprofessional due to and attended on since (Exh. F at 3). Dr. noted that the Student had received (“ ”), however, was for the Student because it “ him and the demands of were a for his ” (Id.)

Dr. used the Second Edition. The indicated that in the domain the Student‟s ; in the Social Functioning domain the Student‟s skill fall in the ; and in the domain she noted the Student in all areas of with skills falling in the less (Exh. F at 4). Dr. concluded that the Student had significant and diagnosed the Student with , (Exh. F at 6).

On September 22, 2010, Evaluation was conducted and the noted his in September 2009 and he engaged in and a program included class with a staffing ratio of with related services of individual and paraprofessional. The noted that “the intensity of the services was proved primarily because of the , unpredictable tendency to , , and skills” (Exh J at 1). The noted his is and evidenced by the intensity with which he (Exh. J at 2) She was unable to use , but noted he was and his tolerance for poor (Id.). The assessed his and found and his skills was limited to simple phrases. She noted that reciprocal exchanges could not be established; however, he could respond to simple one-level commands (Exh. J at 3). She indicated that the parents related that the Student was happier and more responsive since the placement at the (Exh. J at 4).

On December 10, 2010, a class room observation was conducted by Ms. ,a , who observed the Student after a movement class and noted the Student was an assistant teacher (Exh. 6 at 1). She further observed him during an session and noted the provider and the “ [the Student] ” (Exh. 6 at 2). Ms. noted that his teacher told her that the Student wanted . (Exh. 6 at 3).

On April 21, 2011, a evaluation was conducted by , who observed the Student needed to and because he became to who attempted to (Exh. 7 at 1). Ms. noted that the Student was a and and was “ and , almost other than a and a , table” (Exh. 7 at 2).

On April 21, 2011, a social history was conducted and interview noted the Student was at the and observed the Student responding to and noted he could recognize his name and trace letters and recognize some numbers (Exh. 5 at 1) She noted his last IEP indicated that he had and (Exh. 5 at 2). The interviewer reported that the parents opined since the Student has been at his behavior improved and he required the and for short periods (Exh. 5 at 2).

On May 23, 2011, CSE met and drafted an IEP and recommended that the Student be placed in a special class in a specialized school, for a 12-month school year, with a staffing ratio of with special education transportation and related services of 5 times per week for 30 minutes per session; individual 5 times per week for 30 minutes per session; ”) twice per week for 30 minutes per session; a full-time management paraprofessional and a special education paraprofessional and individual twice a week 30 minutes (Exh. E at 17). The IEP indicated in the section of “Other Programs/Services Considered” that a NYS approved non-public school was discussed, but parent indicated that the methodology utilized in those school would not be appropriate (Exh. E at 16). On June 4, 2011, the DOE offered a Final Notice of Recommendation (“FNR”) to the parents at Robert Randall School, (Exh. 13) located in a neighboring community to the Student‟s family.

THE POSITION OF THE PARTIES

The DOE has recommended that the Student be placed in a special class which is a , in a specialized school, for a 12-month school year, with a staffing ratio of , and receive related services of and . The parents disagreed with the Dept. of Education‟s placement and request tuition reimbursement/prospective for for the 2011-2012 school year as they maintain that the Student‟s IEP was not prepared in accordance with the procedural and substantive requirements of Federal and State Regulations and is appropriate. The parents further request reimbursement for the private evaluations.

THE DISTRICT‟S CASE

The District‟s case was presented in the testimony of , , the classroom teacher of the proposed class at / during the summer of 2011.

Ms. , certified employed by the Department of Education since January 1997, testified that she had a Master‟s degree in (trans at 59). She participated in the May 23, 2011, CSE annual review and noted that the team reviewed the Multidisciplinary Evaluation dated November 10, 2010 (Exh. 8), the Classroom Observation dated December 13, 2010 (Exh. 6), the Social History Update dated April 21, 2011 (Exh. 5) and the Evaluation dated April 21, 2011 (Exh. 7) and the Multidisciplinary Evaluation dated May 2011 (Exh. 8). She testified that the Student‟s teacher for the 2010-2011 school year at the appeared at the review (trans. 72). She further testified that the Student was in an at the , but given his age he was in the grade during the 2010-2011 year (trans 73). She stated that she reviewed her observation to the team and noted the parent provided a private evaluation and a private (trans. 74). She recalled that she and her partner created goals based on the Student‟s levels of deficit areas and his academic levels as his teacher at the reported. She further recalled the Student‟s reading skills were in level (trans. 76). She stated that the team developed academic management needs of as his needs were significant (trans. 79). She stated the team discussed his to communicate resulted in towards himself (Id.). She further stated that the team developed goals by to reduce (trans. 82). She noted that a paraprofessional was continued and was added to address the (trans. 84). She recalled that the team discussed the (trans. 87). Ms. maintained that the parent and the Student‟s teacher had an opportunity to ask questions and voice concerns over the and did not agree with the recommendations of the team.

On cross Ms. testified that she did not conduct a (“ ”) formally, but conducted an informal at the IEP meeting (trans. 89). She further testified that was discussed, but no consensus was reached (trans. 90). She agreed that the IEP did indicate that New York State approved non-public schools were not appropriate because of the , but that the social and emotional section did not indicate that component was not appropriate (trans 91). She could not answer the question of why the IEP did not note that the Student responded (Id.). She noted that the ”) was developed at the meeting because the Student had (trans 79).

The certified special education teacher, who taught the program for the proposed class during the summer (July and August) of 2011, testified that she had 2 paraprofessionals each of whom were assigned to a child in addition to a classroom paraprofessional (trans. 106). She stated that her class had 5 children years old. She stated that all her students were and her students functioning in to level in math and grade in ELA (trans. 114). She explained that she used a chart that included a daily point sheet and a star was given for and different motivators were used such as free choice time (trans. 117). She stated that she conducted assessments to functionally group the students and utilized the Every Day Math program and the Reading Milestones program (trans. 115). She further stated that she employed various methodologies in her class utilizing whatever worked best with the child (trans 116) and provided differentiated instruction so she could use or for children who (trans. 120). She noted that a was passed between herself and the parents (trans 121). She maintained that the Student‟s goals could be addressed in her class (trans. 127). She described the various manipulatives such as shaving cream or whipped cream or gel that she used in the class (trans 128). She opined that she could behavior (trans 129) and she would be able to meet the Student‟s goals and that the Student would have been appropriately placed in her class (trans. 130).

On cross the classroom teacher of the proposed class for the summer of 2011 maintained that the class had a and that she would keep an to address his (trans 134). She acknowledged that she had a child who and a child (trans 135). She further acknowledged her building was a mini building contained in a long trailer and children would only go the main building for a special occasion like a dance program (trans. 137). She further stated that there was a special room for , but did not know the size of the special room (trans. 140). She recalled that there was a gate between the playground and the sidewalk and street and the gate must be opened to walk to the playground from the mini building (trans. 144). She further recalled that her students were except a student had difficulty with (trans. 146). She acknowledged that there was a little divider in her class set up to provide a quiet area and an office was used as a quiet area (Id.). She further acknowledged that her classroom had 5 children 4 adults and the classroom was quite small and the quiet corner was near the other children (trans. 148).

THE PARENTS‟ CASE

The parent, the Program Director of , the provider at , the provider at the , the Head Teacher and Dr. testified in support of the parents‟ claim for prospective payment/tuition reimbursement at for the 2010-2011 school year. The parents argued that the district failed to offer the Student a free and appropriate public education (“FAPE”) on both procedural and substantial grounds. The parents maintained that the Department of Education did not perform a psychological evaluation, but relied on Dr. . The parent asserted the Student‟s processing needs were not met at proposed class at the summer program.

Ms. testified that her son was placed at the for the 2010-2011 school year because his behavior was not addressed at the public school placement during the 2009

2010 year at P.S. 37(trans. 299). She opined that since he has been at the he has progressed (trans. 300). She stated that her son did not respond to and as a toddler he had never benefitted from instruction (trans. 301). She recalled a discussion at the IEP meeting of and recalled a discussion that no NYS approved private school was similar to the program at the and all other NYS approved private programs utilized or rigid teaching (Id.). She further recalled her visit to the proposed placement at the summer program and that she spoke to the and the told her that “they used methodology, but because they‟re older in a more relaxed way than they would do [for] a children“ (trans. 306).

She described the severe attacks of her lasted 45 minutes in 2009, but after the placement at , the stopped in September 2010 (trans. 309-310). She further described the trailer and noted the mini-building contained about 80 children with many offices (trans. 312).

On cross Ms. . acknowledged that prior to the IEP meeting CSE had received the private evaluations and also had conducted their own evaluations (trans. 316). She further acknowledged that no information contained in district‟s evaluation, social history update or observation concerned her. She stated she agreed with the district‟s evaluations (trans. 317).

The Program Director at the testified that that had 113 students aged 4 to 20 years and that was ungraded program. She stated that 80 percent of the students were diagnosed on the (trans. 153). She further stated that the class size ranged from 5 to 10 students (Id.) She explained that the ‟s overriding philosophy was the Developmental Individual Difference Relationship-Based Model (“DIR”) and she further explained that DIR was based on 30 years of research (trans. 159). She noted that the DIR looked at each child‟s developmental capacities and as most have sensory processing difficulties the DIR looked for the holes in their developmental capacities and worked to have learning be intrinsically motivated (trans. 160). She further noted that the DIR model approached as a , not a and attempted to get into the child‟s internal motivation to understand the cause and response so the child was open to learning and taking in information (trans. 163). She further noted that the used various literacy methodologies such as Reading A to Z and and used fairy tales so that the child could more easily comprehend (trans. 165). She noted that the Student was placed in the in September 2010 and that he received and (trans. 169). She explained that the Student received instead of (trans. 169) and for the 2011-2012 school year he was placed in a class with a staffing ratio of or students, a head teacher and teaching assistants with bachelor‟s degrees and individual paraprofessionals designated for of his classmates (trans. 170). She maintained that the Student did not require a paraprofessional (trans. 171). She noted that the Student‟s family had a social worker who provided training and (trans. 173). She further noted that the parents paid a deposit of $2,500 when they signed the deposit and that deposit was non-refundable; however, had the parents notified the by September 7, 2011, the parents would have been released from the contract (trans. 174).

On cross the program director stated that RS‟s tuition of $94,750 included parent training and support groups (trans. 175). She further stated that the Student‟s parents were very involved training and training (trans. 176). She recalled some incidents of the Student during the 2010-2011 school year (trans. 177); however, she noted that this current school year there were no incidents on the bus (trans. 178). She explained that the Student received times per week for 30 minutes; times per week for 30 minutes per session, times per week for 30 minutes per session since July 2011 and music therapy started twice per week for 30 minutes. She stated that the started in September 2011 (trans. 180-181). She further explained that the Student did not required additional sessions of despite the fact that he is because he received support for his oral motor issues by the classroom staff not just a single person (trans. 184). She acknowledged that the did not provide paraprofessionals unless the DOE or the parents paid for the paraprofessional (trans. 189). She opined that the Student was progressing in music therapy and that his team determined that music therapy was appropriate as the Student‟s IEP mandated counseling (trans. 202). She did not explain why the Student did not receive counseling in the summer (trans. 203). She explained that despite the fact that the Student‟s IEP mandated a paraprofessional, the paraprofessional was not appropriate. She noted that the Student had trouble generalizing and a paraprofessional would not allow him to move his skills to other people (trans. 207).

The Head Teacher, a certified teacher with pending special education and elementary education certificates, testified that she was trained in . She stated that she was the Student‟s Head Teacher since September 2010 (trans. 228). She explained that her class had 5 children and 4 adults: 2 classroom assistants and 2 individual paraprofessionals designated for 2 of her students (Id.). She recalled that when the Student came to in September he was engaged in (trans. 229). She explained that he never wore a in her class, but he would request to wear (trans. 232). She opined that the Student progressed by requesting to rather than to engage in (trans. 234). She further opined that as he progressed in his communication his lessoned (trans. 236). She explained that the Student required more to meet his and he was more available to learn after attracting exercises in the (Id.). She further explained that she used a fairy tale curriculum and integrated sensory activities into the reading program (trans. 241). She opined that the Student progressed in his number of sight words: from 7 sight words to 15 sights (trans. 242). She further opined that he progressed in his ability to attend (trans. 243), and he progressed in his ability to respond to adult initiated conversation (trans. 247). She further opined that he progressed in his ability to interact with peers and participate in Floor Time activities (trans. 250).

On cross the Head Teacher stated that Floor Time was primarily for and s (trans. 257). She explained there were not enough music therapists over the summer of 2011, but once more therapists were hired, the Student was able to start (Id.). She further explained that she used a math checklist instead of a math curriculum (trans. 259). She recalled that she regulated his by speaking in a work (trans. 263). She further recalled that there was a big range of reading levels in her class from no words to reading fluently (trans. 264). She estimated the reading levels in her class ranged from grade level. She stated that most of the children in her class were with little (trans. 265270).

The certified and licensed Pathologist with a Master‟s Degree in Pathology employed by the , testified that she worked with the Student since September 2011. She stated that the Student had oral difficulties moving his articulators and approximated sounds She noted that he was very and currently the Student was making progress with his (trans. 273-275). She further stated that he had difficulty expressing his and he could become with his inability to express himself. She noted that she was working on and used visual aids to address the Student‟s (trans. 276-278).

On cross the explained that she did not work with the Student over the summer and the team decided that were appropriate (trans. 283). She further explained that 5 sessions of were not appropriate because the classroom staff supported her work (trans. 285).

The certified and licensed provider employed by the , testified that she provided individual to the Student 2 times a week for 30 minutes per session and once a week for 30 minutes in a small group of 3 to 5 children (trans. 287). She stated that she worked on the Student‟s processing needs in the sensory gym so he had a sense of where his body was in space (trans. 288). She opined that the Student improved after his sessions because he was more available to engage and was able to participate in the classroom (trans. 289). She further opined that he was able to progress in his motor planning by the use of input to his joints (trans. 290) and progressed in his visual/ special deficits (trans. 292). On cross the provider stated that she started at the group sessions were done in the classroom with the Student‟s other classmates (trans. 297).

FINDING OF FACT, CONCLUSION OF LAW

The U.S. Supreme Court held in Schaffer v. Weast that the moving party bears the burden of persuasion in an administrative hearing brought under the IDEA. 546 U.S. 1145, 126 S.Ct. 528 (2005) Pursuant to Schaffer, the parents bear the burden of proving the three prong test that is the legal standard applicable to a request for reimbursement for educational services: (1) the services offered by the Department of Education are inadequate or inappropriate, (2) the services selected by the parent are appropriate; and (3) equitable considerations support the parent‟s claim. (School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 [1985]) Chapter 583 of the Laws of 2007 stated “that the burden of proof in an impartial due process hearing pursuant to §4404(c)(1) of Education Law to challenge the recommendation of a Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE), or otherwise challenge actions or omissions relating to the provision of a free appropriate public education (FAPE) to a student with a disability, is generally placed on the school district (or State agency) providing special education to the student.” Chapter 583 took on October 14, 2007 prior to the parents‟ demand for due process. Therefore, I find the District bears the burden to establish prong one.

The parents maintained that the IEP was inappropriate because of the following reasons: size of the proposed summer classroom was small; the staff to student ratio of the program was insufficient, the lack of securely locked gates at the proposed placement; the lack of a quiet room and the crowded room in which related services were provided and the ABA component of the proposed program (Exh. B at 5). The parents asserted they were denied meaningful participation at the IEP meeting because their concerns regarding the program were not addressed (Exh.B at 4). The parents further asserted that the IEP was not appropriate because the Student‟s ; however, no FBA was conducted. The parents argued that they were deprived of FAPE because they requested parent training and counseling and their request was denied (Id.) The parents alleged CSE failed to conduct evaluations and failed to consider the recommendations of the private evaluations (Exh. B at 2).

While school districts are required to comply with all IDEA procedures not all procedural errors render an IEP legally inadequate under IDEA. (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 at 381 [2d Cir. 2003]) If a procedural violation has occurred relief is warranted only if it affected the student's right to a FAPE. ( J.D. v. Pawlet School District, 224 F.3d 60 at 69 [2d Cir. 2000]) The denial of FAPE occurs when procedural inadequacies result in either a loss of educational opportunity for the student or seriously infringe on the parents‟ opportunity to participate in the IEP formation process. (Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d, 656 at 659, [S.D.N.Y., 2005]) The district asserted that the proposed program and placement were appropriate.

I find the district is not required to maximize potential. (Bd. of Educ. v. Rowley, 458 U.S. 176 (1982) and Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, [2d Cir. 1998]) Instead the school district must merely provide an IEP that is likely to produce progress not regression. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186,[2d Cir. 2005]). The school district must show that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). The Second Circuit had held that for the program to be appropriate the IEP must „“be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

The parents asserted that they were entitled to a tuition reimbursement of $94,750 for tuition for a 12-month program at RS because the May 23, 2011 IEP was procedurally invalid and the procedural deficiencies seriously infringed on the parents participation in the IEP and resulted in a denial of FAPE. In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies (i) Impeded the child‟s right to a FAPE; (ii) Significantly impeded the parent‟s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent‟s child; or (iii) Caused a deprivation of educational benefit. 20 U.S.C. § 1415(f)(3)(E); 34 C.F.R. § 300.513(a)(2).

The district‟s attorney asserted that the parents abandoned their claim that they were denied FAPE because the IEP did not include parent training and parent counseling. I find that I need not reach the abandonment issue as the SRO ruled on this issue. In Appeal No. 11-070, the SRO found the failure to include parent training and parent counseling on the IEP did not result in a finding of no FAPE.

The parents alleged that there was no discussion of the difficulties the Student had with and there was no discussion of methods because they will likely cause the Student to harm himself (trans. 332). The parents‟ attorney noted in his closing statement “that the parents did not request that the IEP include the DIR methodology, even though there was evidence that DIR was working for [the Student].Instead, they wanted the IEP to reflect that behavioral methodologies, such as were not appropriate. It is clear that parents brought up the inappropriateness of at the meeting and that they considered inappropriate for [the Student]. Tr. 90-91; Ex. 10-2” (Exh. IHO I at 4). The parents‟ attorney argued that “the IEP was not appropriate because it failed to state that or other were not appropriate in Needs nor in the . Ex. E-4” (Id.). I find the failure to warn those implementing the IEP that was not appropriate on every page of the IEP did not render the IEP inappropriate nor did it reflect that the parents were not given an opportunity to participate. Further, the district‟s attorney argued that the IEP must be considered as a whole. I agree that those implementing the IEP would have the entire IEP and would be responsible to implement the entire IEP.

The district‟s attorney asserted that IEP need not identify what is not good or what does not work for the child (trans. 353). I find that CSE had ample evidence of the Student‟s reaction to and ample of evidence of the Student‟s when frustrated or when presented with the rigid instruction of ; however, I find that the parents failed to establish that would be used in the proposed summer program. I credit the statement by the classroom teacher of the summer program that she would use whatever worked best with the child (trans 116). I further find testimony adduced at the hearing failed to establish that would have been used by the classroom teacher for the proposed summer program. I find the statement from the coach was insufficient to discredit the testimony of the classroom teacher who stated she employs whatever method worked best for the child. Further, the district attorney argued “courts have held that „parents, no matter how well-motivated, do not have a right to compel a school district to provide a specific program or employ a specific methodology‟ See Lillbask v. Sergi, 117 F. Supp. 2d 182, 201 (D. Conn. 2000), citing Lachman v. Illinois State Bd. of Educ., 852 F2d 290, 297, 441 IDELR 156 (7th Cir. 1988), citing Bd. of Educ. v. Rowley, 458 U.S. 176, 207-08 (1982)” (IHO Exh. II at 2). I find the parents failed to establish that the proposed summer program was not appropriate because the classroom teacher used the rigid instruction of .

The parents assert that the district failed to conduct a assessment (“ ”). Regulations of the Commission of Education require that an be completed for a child “whose or that of others, as necessary to ascertain the and factors which contribute to the suspected disabilities.” (8 NYCRR 200.4(b) (1)[v]) I find the IEP did include a BIP (Exh. E at 16), but no FBA was conducted prior to developing the BIP. I find the SRO ruled in Appeal No. 11-049, in this case and in Appeal No. 11-070 on this issue. “Although State regulations call for the procedure of using an FBA when developing a BIP, the failure to comply with this procedure does not automatically render a BIP deficient (A.H., 2010 WL 3242234). ...While the student's need for a BIP must be documented in the IEP, and prior to the development of the BIP, an FBA either "has [been] or will be conducted ("Guide to Quality Individualized Education Program [IEP] Development and Implementation," at p. 25 [emphasis in original]), it does not follow that in every circumstance an FBA must be conducted and a BIP developed at the same time as the IEP (see Cabouli v. Chappaqua Cent. Sch. Dist., 2006 WL 3102463, at *3 [2d Cir. Oct. 27, 2006] [noting that it may be appropriate to address a student's behaviors in an IEP by noting that an FBA and BIP will be developed after a student is enrolled at the proposed district placement]).”

The district‟s attorney argued that in her closing statement that “the absence of an FBA does not render an IEP procedurally inadequate, as long as the IEP itself considers behavioral strategies. See A.C. ex reI M.C. v. Bd. of Educ. of the Chappaqua Sch. Dist., 553 F.3d 165, 172 (2nd Cir. 2009)(finding an IEP that addressed behavior procedurally valid even in the absence of a FBA); J.A. v. East Rampano Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 (S.D.N.Y. 2009) (rejecting a claim that the absence of a FBA rendered an IEP invalid and finding that IDEA requires only consideration of behavior interventions and strategies). Second, there is a BIP included in the IEP developed for the student. Ms. Fochetta testified as to the specific discussions and considerations given to behavior interventions and strategies for the student and included a in the IEP (Tr. 79-82). She testified she did an informal (Tr. 89)” (IHO Exh. II at 3). The district‟s attorney further argued that a formal FBA would have been done upon the student‟s entry to the public school (Id.).

I find the did include a list of his “including his and on the table” and included strategies to try to change the behavior such as , the use of a voice, and , and (Exh. E at 18). I further find the classroom teacher for the summer program described the she would have conducted included the use of (trans. 134), and the use of a calm voice and to give the student something that he likes (trans. 129-130). I find this testimony was similar to the testimony of the Head Teacher at the in terms of addressing his behavior. I find the CSE had evaluative information regarding the Student‟s high tolerance for pain and his lack of response to reinforcers. (Exhs. F & J), however, testimony adduced at the hearing established that the severity and frequency of the lessens after September 2010. I also note that the Student was prescribed Respridal (1mg

BID) in the Spring of 2010 (Exh. F at 2; J at 1); however, there was no testimony as to the effect of the medication on the student. I find the listed the specific strategies to remediate the Student‟s . Further, as the SRO ruled it may be appropriate to address a student's behaviors in an IEP by noting that an will be developed after a student is enrolled at the proposed district placement, I find the lack of a formal did not amount to a failure to provide FAPE.

Testimony adduced at the hearing established that the proposed summer class was held in a trailer with , the teacher, a classroom paraprofessional and individual paraprofessionals assigned to children in the proposed class. Had the Student been placed in the proposed class there would have been an additional so the staffing ratio would have been children and adults in the space of a classroom. I credit the parent‟s testimony that she observed a small classroom. I credit the testimony of the teacher of the proposed summer program that the quiet area was by the desks of the children. However, I also credit that teacher‟s testimony that an office was also used as a quiet area. I find the parents failed to establish the inappropriateness of the small classroom to provide a quiet area.

The district‟s attorney asserted that “there are several SRO decisions, for example SRO 11-042, where the SRO addresses school size. The District submits that the same reasoning that applies to school size would apply to individual classroom and/or the therapy room sizes. Unless the student is extremely , the parent cannot objectively show that the mere size of the room would prevent our school from implementing the IEP and affording the student and educational benefit” (IHO Exh. II at 6).

Based on the foregoing, I find that the district demonstrated the Student‟s IEP and program were appropriate for the 2011-2012 school year. Having found that the district prevailed on the first prong, I need not discuss the second prong. However, I note in order to establish the second prong, the parents have the burden to prove that the services they obtained for the Student are appropriate to his needs. The fact that the facility selected by the parents to provide special educational services to the child is not State-approved as a school for children with disabilities is not dispositive of the parent‟s claim for tuition reimbursement. (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]) The parents must prove that the Student will receive an appropriate educational benefit from the program at the non-public school. I find the parents failed to establish that met the Student‟s related service needs in terms of counseling and Testimony adduced at the hearing was inconsistent as to why music therapy did not start over the summer of 2011 for the Student. I credit the testimony of the Head Teacher of the , who stated that there were not enough music therapists over the summer of 2011, but once more therapists were hired, the Student was able to start (trans. 257). I find testimony and evidence including all evaluative material at the hearing established the significant needs, needs, needs, needs, needs and -seeking needs of the Student. I find there was no testimony by the therapist who provided counseling at the to establish that the Student would not benefit from over the summer of 2011. I further find that the testimony from the who testified that the team decided that 3 sessions of were appropriate (trans. 283) that 5 sessions of were not appropriate because the classroom staff supported her work did not contain sufficient information as to how the classroom staff supported her work and enabled him to progress with his skills. Accordingly, I find the parents failed to establish that the Student will receive an appropriate educational benefit from the program at .

Having found the district prevailed on first and second prong, I need not discuss the third prong.

As to the claim for reimbursement for the private evaluations I find the parents argued that the DOE failed to evaluate the Student timely under the requirements of Jose

P. v. Amback, 553 IDELR 298 [Jan 5, 1982] (IHO Exh. III). It was undisputed that the parents signed the consent for evaluations on April 14, 2010 (Exh. P) and the district conducted a psychological evaluation of April 21, 2011. The parents‟ attorney asserted under the Jose P. Order, “parents of handicapped students who have been referred for evaluation and who have not been evaluated within thirty days may obtain an independent evaluation” (IHO Exh. III). The parents‟ attorney further asserted that the SRO in Appeal No. 11-049 ruled that the issue of the reimbursement for the evaluations was not ripe because the parents had not yet brought the evaluations to the district and asked the district to consider them. I find the private evaluations were utilized by the district and I find the district did not file an impartial hearing request defending their failure to evaluate. 34 C.F.R. § 502 (b)(2)(i); 8 NYCRR 200.5(g)(1)(v). (IHO Exh. I) Based on the foregoing, I find the parents are entitled to reimbursement for the evaluations.

ORDER

Therefore, it is hereby ordered that the DOE shall reimburse the parents for the cost of the private evaluations (the evidence of such payment must be acceptable to the Department of Education) of $1,000 for the psychological evaluation and $1,250 for the speech/language evaluation. The parents‟ claim for reimbursement/prospective payment for the tuition for the program at the for the 2011-2012 school year is denied. Dated: December 23, 2011

__________________________________

LINDA S. AGOSTON, ESQ.

Impartial Hearing Officer

LSA:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 7, 2011

A Impartial Hearing Request, 6/16/11, 6 5 pp. Parent

B Amended Impartial Hearing Request, 7/12/11, 7 pp. Parent

C Findings of Fact and Decision, 5/5/11, 10 pp. Parent

D SRO Decision Number 11-049, 7/7/11, 22 pp. Parent

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 17, 2011

E IEP , 5/23/11, 18 pp. Parent

F Evaluation, 10/4/10, 8 pp. Parent

G Parent Letter, 6/14/11, 2 pp. Parent

H Interdisciplinary Progress Report, 5/11, 12 pp. Parent

I Interdisciplinary Council on Development and Learning Disorders,

11/10, 10 pp. Parent

J Comprehensive Evaluation, 9/22/10, 5 pp. Parent

K Contract, 5/11, 6 pp. Parent

L Proof of Payments for Evaluations, 11/10- 12/10, 2 pp. Parent

M Proof of Payment and Affidavit, 11/9/11 and 5/17/11, 2 pp. Parent

1 DOE Appointment Letters, various dates, 2 pp. District

2 Consent Forms, undated 4 pp. District

3 Case Material Checklist, undated, 1 p. District

4 Comprehensive Evaluation, 9/22/10, 5 pp. District

5 Social History Update, 4/21/11, 4 pp. District

6 Classroom Observation, 12/13/10, 3 pp. District

7 Evaluation, 4/21/11, 2 pp. District

8 Interdisciplinary Report, 5/11, 12 pp. District

9 Omitted.

10 CSE Minutes of Meeting, 5/23/11, 2 pp. District

11 IEP, 5/23/11, 18 pp. District

12 District 75 Referral Forms, undated, 2 pp. District

13 Final Notice of Recommendation, 6/4/11, 1 p. District

14 Contact Sheet dated 4/21/11, 1 p. District

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 22, 2011

N Parent Letter to CSE, Undated, 1 p. Parent

O Evaluation by , 12/5/07, 6 pp. Parent

P Consent for Reevaluation, 4/14/10, 1 p. Parent

Q Regulatory Selections of 8 NYCRR, Section 200.1,

Subsection R and 8 NYCRR Section 200.22, Subsection

A and Regulation 8 NYRCC, Section 201.2, Subsection H, 3 pp. Parent

POST HEARING SUBMISSIONS

I Memorandum of Law, 12/12/11 9 pp IHO

II Closing Statement, 12/14/11, 6 pp. IHO

III Reply, 12/15/11, 1 p. IHO