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: August 9, 2011

September 26, 2011

October 17, 2011

November 14, 2011

November 15, 2011 Actual Record Close Date: December 14, 2011 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 9, 2011

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 26, 2011

Mother — Student

Attorney — Student

Attorney — DOE

School (via telephone) — DOE

Teacher (via telephone) — DOE

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

Attorney — Student

Father (via telephone) — Student

Mother (via telephone) — Student

Attorney — DOE

Lead Teacher at (via telephone) — DOE

Director- School — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 14, 2011

Attorney — Student

Mother — Student

Social Worker- School (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15, 2011

Attorney — Student

Mother — Student

Classroom Teacher- School (via telephone) — Student

Therapist- School (via telephone) — Student

Attorney — DOE

BACKGROUND AND PENDENCY ORDER

On July 6, 2011, I was appointed hearing officer pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), in this matter. The Parents asserted in their hearing request that the New York City Department of Education (the “DOE”) failed to offer the Student a free and appropriate public education (“FAPE”), that the Parents have placed the Student at the (“ ”) for the 2011-2012 school year, and that they are seeking tuition reimbursement for that placement. The hearing request asserts that the program offered by the District was defective in that the Committee on Special Education (the “CSE”) failed to conduct a triennial evaluation; that the team failed to comply with the State Education Department guidelines governing participation in a CSE meeting by teleconference in that the reports and evaluations utilized by the review team were allegedly not provided the private school teacher participating via teleconference, and that the goals and objectives developed were not fully discussed with Mr. ; that the one to one paraprofessional recommended on the individualized education program (the “IEP”) does not meet the Student’s needs because he requires a trained educator to provide the support he needs; that the IEP is deficient in not providing for parent training and counseling; that the program site offering was inappropriate because the Student becomes environments, because the school did not have which he needs when he becomes and because the school did not have a teacher or therapist at the school; that the class grouping was inappropriate because the other students were and the Student is classified as ; and that the Student’s related service mandates could not be met at the program site. The hearing request also asserts that the Parents did not receive an IEP after the February 14, 2011 meeting. The hearing request asserts that the pendency placement is at as a result of an un-appealed decision of an Impartial Hearing Officer.

We convened for a hearing on the issue of pendency on August 9, 2011. At the hearing, the parties agreed that the hearing officer’s decision, dated May 16, 2011 (Exh.

B) was the child’s current placement for pendency purposes, and therefore, that the School was the Student’s pendency placement (See T. 5).

The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415(j); Educ. Law §§ 4404(4), 4410(7)(c); 34 C.F.R. § 300.518[a]; 8 NYCRR 200.5(m). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 (1987); Evans v. Bd. of Educ., 921 F. Supp. 1184, 1187 (S.D.N.Y. 1996), citing Bd. of Educ. v. Ambach, 612 F. Supp. 230, 233 (E.D.N.Y. 1985)). Under the IDEA, the pendency inquiry focuses on identifying the student's then current educational placement. Although not defined by statute, the phrase "then current placement" has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced (Murphy v. Bd. of Educ., 86 F. Supp. 2d 354, 359 (S.D.N.Y.

2000) aff'd, 297 F.3d 195 (2002); Application of a Student with a Disability, Appeal No. 08-107; Application of a Child with a Disability, Appeal No. 01-013; Application of the Bd. of Educ., Appeal No. 00-073). The U.S. Department of Education has opined that a student's then current placement would "generally be taken to mean current special education and related services provided in accordance with a child's most recent (IEP)" (Letter to Baugh, 211 IDELR 481 [OSEP 1987]; see Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]). A prior unappealed impartial hearing officer's decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440 at *23; Letter to Hampden, 49 IDELR 197 (OSEP 2007); Application of a Student with a Disability, Appeal No. 08-107; Application of a Student with a Disability, Appeal No. 08-050; Application of the Dep't of Educ., Appeal No. 08-009; Application of the Dep't of Educ., Appeal No. 07-140; Application of the Dep't of Educ., Appeal No. 07-134). I therefore find that Rebecca is the student’s pendency placement.

On August 19, 2011 I issued an interim decision, ordering that the DOE continue funding the Student’s placement at the School during the pendency of these proceedings.

We proceeded to a hearing on the merits on September 26, 2011. The hearing continued on October 17, 2011, November 14, 2011 and November 15, 2011. The parties submitted closing briefs on December 14, 2011.

EVIDENCE

The DOE submitted the IEP, dated February 14, 2011, as an exhibit. The IEP sets forth a classification of and recommends a special class in a specialized school in a staffing ratio. The recommendation includes four sessions per week of in a group of ; one session per week of in a group of ; four sessions of per week in a group of one; one session of per week in a group of two; of per week in a group of session of per week in a group of two. The recommendation includes a full time paraprofessional. The IEP indicates that the paraprofessional was included due to the Student’s that impacts upon his . (Exh. 1, p. 1, 13, 14, 15)

The IEP notes in the present performance sections that the Student has been diagnosed with ; that he has significant delays and has and ; that he communicates his ; that he is a able to use to express himself; that he benefits from having ; that he needs one to one assistance to help him and attend tasks in class; that he is an emerging reader who can read about words by sight, but is not able to yet. (Exh. 1, p. 3)

The present performance section of the IEP cites a current school report indicating that the Student’s regulatory state is generally calm but that he can fall into a state of high once a day. He becomes as a result of a change in his schedule, being overly excited or not being able to do what he wants. Times of can last up to 15 minutes. When calm and regulated, he can engage with adults in the classroom and can remain in purposeful engagements for minutes surrounding highly motivating activities. He when experiencing , which he often . Once in his classroom, his . (Exh. 1, p. 4)

The present section of the IEP notes that the Student presents as - He seeks input throughout the day/ (Exh. 1, p. 5)

The IEP includes, among the various goals, a goal relating to and , and includes as a short term objective that “ and , he will attend to a for ten minutes in 4 out of 5 opportunities. To maintain a regulated state, the Student will perform self-generated activities to provide input with assistance from an adult in four out of five opportunities. (Exh. 1, p. 7)

The (the “ ”) attached to the IEP indicates among the strategies to be tried to change the : that the Student has needs and requires access and in his hands. It further notes that he requires ; high ; and . It notes that when , he benefits from and a . It includes as a strategy: acknowledging his and narrating what is happening in his . The supports to be employed to help the include the , the special education teacher and the related service providers. (Exh. 1, p. 16)

The DOE submitted the Interdisciplinary Report of Progress from the , dated December 2010. The report notes that “[i]f a change in [the Student’s] schedule occurs, [he] often displays heightened where he becomes on a specific activity such as turning the or . [He} requires and throughout the day to transition from activity to activity and environment to environment.” It notes that he falls into a approximately once a day and it is often “the result , being , or not . These times of can last up to 15 minutes. [He] is able who helps to to a . When [he] is , it helps to items such as the or door that he . It is also helpful to use strategies with [him] such as , reducing the language being used, or as well as other such as or other .” (Exh. 4, p. 1) The report notes that the Student is more engaged during highly motivating activities such as the class (Exh. 4, p. 2). The report notes that the Student had difficulty transitioning to the sessions and appeared more . “Using supported him during this as well as current times of . For example , following [his] idea and phrase, such as “going to the elevator. When [he] becomes with an on an idea, creating a very simple, over for him to engage in can be useful as well as introducing a ”. (Exh 4, p.9)

The goals in the report include strategies for : “such as taking , rather than turning the or slamming the door ”. (exh. 4, p. 10) The report includes, as an goal that “after receiving and through , [the Student] will attend to a classroom activity for 10 minutes 4 out of 5 opportunities.” (Exh. 4, p. 11)

The DOE submitted as an exhibit, conducted in May, June and August of 2010 (Exh. 6). The evaluator recommends that the Student requires a highly-specialized, , program for children on the who are not . (Exh. 6, p. 5). It asserts that “[a] comprehensive, data driven, throughout the day is required and needs to be carried out by special educators who specialize in and who can actively monitor, adjust and collaborate on his goals.” (Exh. 6, p. 6). “It is essential that he be given additional support so that he may focus all of his attention on the curriculum. or need to be used when possible to engage him in the task. Again his program must through the day which is integrated in his ...[The Student] requires an environment where caregivers clearly state their expectations and subsequent consequences when expectations are not met. Discipline should be consistent and methods. State rules in a positive manner, allowing [the Student] to understand the behaviors in which he needs to engage.” (Exh. 6, p. 6)

APPLICABLE STANDARDS

Two purposes of the IDEA are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3dat 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). Also, a FAPE must be available to an eligible student "who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade" (34 C.F.R. § 300.101[c][1]; 8 NYCRR 200.4[c][5]). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

FINDINGS OF FACT AND DECISION

I will first address the appropriateness of the recommendation and placement offered by the DOE. On February 14, 2011, the CSE convened to make a recommendation for the 2011-2012 school year. The team was comprised of the Parent, a special education teacher, a parent member, a school psychologist, the psychologist who performed a psychological evaluation (Dr. ), the classroom teacher from the where the child was attending school, a social worker from the child’s school and , an advocate retained by the Parents (See Exh. 1, p. 2).

The minutes of the CSE meeting indicate that the Parent had the opportunity to participate. According to the minutes, the CSE added a mathematics goal at the request of the Parent. A discussion took place regarding reading goals. The parent expressed an opinion and the teacher explained his perspective. The Parent was in agreement. The minutes note that the CSE discussed the evaluations and it was noted that the Parent did not have any questions about the reports. The draft of the IEP was discussed. The Parent noted that the Student could count higher than 10 and this was added to page 3 of the IEP. The minutes note that both the Parent and the teacher provided input into the goal development. The were discussed and the was discussed and developed. Dr. was consulted. Both the Parent and the staff were consulted before the discussion regarding the was completed and both indicated that they did not have anything else for the . The related services were discussed and the goals from the School were reviewed and included. “ ” goals were added. (Exh. 2)

The minutes of the meeting and the IEP indicate that the CSE paid close attention to the Student’s needs, consulted the Parents and the Student’s current teacher, and incorporated the concerns, suggestions, goals and observations of the Parents, the teachers and the who conducted the .

The goals on the IEP were developed with the participation of the Parent and the current teacher and reflect the needs of the Student. Ten separate annual goals were included, ranging from academic goals to goals, goals, therapy goals, and ADL goals. Goals relating to processing and regulation are included. (Exh 1, p. 6-11). There was no disagreement regarding goals in the hearing request or at the CSE meeting and many of the goals came from the report of the School (See T. 65-71)

The describes various difficulties related to his . It sets forth expectations regarding maintaining a regulated state for 30-45 minutes given adult support, attending to tasks for 10-15 minutes given adult support; through increasing the predictability, structure and support in his environment, and giving him a the events of his life. Strategies include access to and in his hands, to motivate him, breathing and a reduction of language, state, and in his environment to prepare him . (Exh. 1, p. 16)

The CSE recommended a special class in a specialized school, with a staffing ratio of . A twelve month school year was offered. A full time paraprofessional was offered. Fifteen sessions per week of related services were offered, equally divided among , and . Twelve of these sessions were one to one sessions and one session per week in each related service was in a group of two. Ms. testified that having one session per week with a peer would facilitate engagement with others (T. 78). The testimony of Ms. the IEP, the CSE minutes and a comparison of the recommended goals and services with those suggested by the indicate that a great deal of thought and attention to the child’s needs were considered by the CSE.

Ms. testified that the staff in the District programs is very knowledgeable. She testified that the perspectives of the participants at the CSE meeting were all considered and included and that the IEP could be implemented (T. 74). Ms. testified that the District program offered would provide the necessary structure that the Student requires (T. 83).

The Parents argue that the IEP meeting failed in several ways and that the placement offered failed in several ways as well. I will address each issue individually.

The Parents argue that the program recommended on February 14, 2011 is defective in that the CSE had not conducted mandated triennial reevaluations (Exh. A, p. 3). I note that the minutes of the CSE meeting indicate that the CSE reviewed a classroom observation, a school report from December 2010, a “10.29.10 ”, and “

(Exh. 2, p. 1). These items were submitted as exhibits to this hearing: classroom observation, dated January 14, 2011 (Exhibit 5); school report, dated December 2010 (Exhibit 4); Evaluation, dated October 29, 2010 (Exhibit 7); and Evaluation, conducted by Dr. on May 29, June 9 and August 23, 2010 (Exhibit 6). Thus, on February 14, 2011, the CSE reviewed a variety of assessments. There is no specific allegation that any particular assessment was missing which was required in order to understand the Student’s current needs and functioning. The CSE adopted many of the goals developed by the providers at the (see. T. 115 and Exh. 2), and there is no allegation that the goals were inadequate or inappropriate. It is true that the CSE did not conduct assessments in the related services areas. However, they had the reports of the providers in the Progress Report (Exh. 4, pp. 5-8) and relied on the goals developed by the providers.

The Parents also argue that the IEP meeting was inadequate in that the private school teacher participating via teleconference was not provided with the reports and evaluations utilized by the review team and because the goals and objectives developed were not fully discussed with him during the teleconference. I note, however, that the Parents do not argue that the goals were inappropriate, or that the CSE misunderstood the Student’s functioning or needs in the classroom. Therefore, there was no substantive affect of this procedural lapse.

The Parents also argue that the CSE failed to properly address the Student’s needs by recommending a paraprofessional because the paraprofessional is not a trained educator and cannot provide the type of educational support the Student requires. They further argue that by offering a paraprofessional within the context of the program, the CSE is acknowledging that this program is not sufficient.

, the school psychologist who co-chaired the CSE meeting in question, testified for the DOE. She testified that the role of the para would be to make sure that the Student is in a calm state so that he is available for learning: meaning that he has enough input into his to keep him alert and available. The role of the para would also be to provide support for transitions, which for the Student is a significant concern (T. 43). Ms. testified that the special education teacher would be in charge of the one to one para; that she would lead the instruction and would give direction to both the classroom para and the para in terms of what she felt it was appropriate to do (T. 41-42). Ms. also testified that the indicates the goals for the para (T. 110). The (Exh. 1, p. 16) describes the behaviors that the Student engages in, indicates the expected behavior changes and the strategies to be tried to change the behavior. There is no need for goals on the IEP to be specifically directed to the para; rather, the para is expected to follow all the classroom goals on the IEP, just as the teachers do.

The management paraprofessional works in conjunction with, and under the guidance of, the special education teacher. The special education teacher would instruct and supervise the one to one paraprofessional in implementing the required strategies. Ms. testified that when working with a , she would tell them what she expected of them for the day, or if she noticed something was going on, she would direct them to that situation. She testified, for example, that a assigned to a student who had shown and was helpful in working on that (T. 152). S he further testified that the paraprofessionals were helpful during transitions (T. 153). There was no evidence or testimony to indicate that the special education teacher would be unable to instruct and supervise the para, or that the paraprofessional would be unable to follow these instructions.

The recommendation of a program, including the management paraprofessional and the related services are to be viewed as a whole and the fact that a paraprofessional was recommended does not indicate that the recommendation was inappropriate.

The Parents also argue that the CSE failed to recommend parent training and counseling as a related service. The regulations of the Commissioner of Education in New York require, with respect to students with , that: “[p]rovision shall be made for parent counseling and training ...for the purpose of enabling parents to perform appropriate follow-up intervention activities at home.” 8 NYCRR§200.13(d).

, the site coordinator for the site at testified that he disseminates information to parents regarding trainings, and distributes surveys for parents regarding the types of trainings they would have (T. 242). The parent trainings offered are based on these questionnaires. The trainings offered are based on the responses from the parents and, therefore, are based on their particular needs (T. 258). There is no reason to believe that the parent training offered by the District program would be inadequate or inappropriate to meet the needs of the Parents. Since the District program provides parent trainings based upon the needs of the parents, the failure to include it on the IEP did not have a substantive effect.

The Parents argue that the recommended placement at was inappropriate to meet the Student’s educational needs. They argue that it fails on several counts. First, they argue that the size and large number of students in the building would be and unsettling for the Student. Second, they argue that the and children would cause a . Third, they allege that the school does not have any for the Student to use when he becomes . Fourth, they argue that the Student requires the use of to express himself and stay and that there is no teacher or therapist in the school. Fifth, they argue that the because the Student is classified as while the other students are . Sixth, they argue that they were concerned that the placement offered would not be able to meet the related service mandates on the Student’s IEP. I will address each argument individually.

The Parents first argue that the recommended site would be unsettling due to the size and large number of students in the building. However, there is no evidence that this would be for the Student. The evidence suggests that the Student is when he is not sure what his schedule is going to be (T. 542), but there is no evidence that being in a building with a large number of students is . I note that in his behavioral observations, Dr. notes that when other children acted out, the Student seemed initially distracted by their behavior but did not become and to the contrary, and compliant both in the library and in the classroom. (See Exh. 6, p. 4). Mr. testified that the Students would come into contact with the other programs in the building during cafeteria time. He testified that there have been no instances in which the students (many of whom were classified as having were by the number of students in the building. He further testified that when students have or , in general, that they have a provided by the classroom staff and the therapist (T. 257). He testified that the students in the District program would be sitting in the leg of the “L” shape of the cafeteria by themselves and that they don’t really see the other students (T. 280). Ms. testified that the District programs are often housed within larger schools, but that they are often separate in many ways and tend to be small and supportive (T. 74). She also testified that she considers the fact that the setting would offer access to nondisabled peers to be a potential plus. She testified that she thought that living in the city, negotiating the city – that those are skills that he needs to master and can be worked on in a setting such as that (T. 75). I do not find that the site setting is inappropriate due to the in the building.

The Parents argue that the transitions from would cause the Student . The school report indicates that the Student “requires throughout the day to transition from ” (Exh. 4, p. 1). I also note that the by Dr. sets forth that during an observation at the , the examiner observed the Student transitioning from the classroom to library time and back to the classroom. The examiner noted that the Student “transitioned fairly easily to next activity on his agenda, which was back in the classroom, with some redirection from his para.” (Exh 6, p. 4).

Ms. testified that the was developed at the CSE meeting with the participation of all participants. (T. 59 at 16-19). She testified that the teacher noted that the Student needs “a lot of and a lot of that ” (T. 61 at 9-12). The IEP indicates that “consistent verbal prompting for transitions” can be used (Exh. 1, p. 4). The Student’s teacher at the testified that the Student is “able to stay regulated most when he knows what his schedule is going to look like throughout the day” (T. 542). She reiterated that he handles transitions better when told what to expect and also required during transitions.” (T. 558)

Mr. testified that the Student would transition four times during the day (between September and June) and one time during the day during the summer (T. 271272). Mr. testified that the Student’s providers could have supported the Student during transitions, preparing before and after transitions and providing consistent verbal prompts during transitions (T. 255). He also testified that some students need throughout the day to aid with transitions and that he has seen that provided in classrooms (T. 256). I find that the Student would have been appropriately supported during would not have rendered the placement inappropriate.

The Parents also argue that the site would not offer appropriate for the Student to use testified that the Student is and needs input throughout the day (T. 52-53). She testified that the Student benefits from (T. 54). She testified that the classroom teacher provided information to the CSE regarding what he found helpful in the classroom and that what was needed were ; ; directing him to or he is ; and moving him away from whatever is . He also noted that is a highly motivating activity and that he should have . (T 60-61). ). Among the several strategies provided in the , are “access to and ” and “ ”.

. Mr. testified that a is provided by the classroom staff and the therapist to help students from being (T. 257). He testified that the staff could have provided the Student with access to and in the hands as set forth in the BIP (T. 253). He further testified that “the staff might work together on planning which materials they might need, weighted bats, whether it’s balls, whether it’s items or or whatever they would need and then they would obtain these items and use them with the students.” (T. 253) Ms. testified that most of her students need to be when they are not engaged or . She uses for some students as well as . She had a jar of sand which the kids would play with their fingers and that seemed to have a . They turned time (T. 166).

I see no reason to doubt that the DOE can provide what is set forth in the BIP developed by the CSE. I find that the program could have offered these interventions to support the student to when .

The Parents also argue that the Student himself and and that there is no teacher or in the school. I note that the uses in two different ways. First, they use as “an ” to work on : as a medium to (T. 317). Second, they use as a . Thus, they might sing (T. 317) as a way of . I note that the BIP prepared by the CSE includes access to to motivate him, as a strategy for addressing the . I see no reason to doubt that the teacher and providers would have followed the mandates on the IEP or would have failed to and other into the day in order to . I note that Ms testified that there was a space in the classroom where they could have set up some and could have worked to meet his needs (T. 168-169).

With respect to the need for a teacher or therapist -- I do not believe that the provision of is required for the Student to receive FAPE. Ms. testified that the related services of , and would have addressed the need to increase the Student’s ability to (including a session each week with a peer), and that this would have served the same purpose as . She further testified that they included in two places in the IEP – in the and in management needs. She did not feel that he needed a formal class to address those things. (T. 76-78).

The Parents also argue that the class composition would not provide a suitable and because the Student is classified as while the other students are classified as . I note, at the outset, that although the Parents make this argument, Ms. testified that most of the students are the in which the Student was unilaterally placed by the Parents are classified as have (T. 364 at 1-3).

Ms. testified that the present performance noted for the Student was similar to that of the other students in her class. Most of her students need to be when they are not . She testified that they use , and of . They turned off lights to have quiet time (T. 166-167). She testified that if they needed to work one on one with a child, they could do that as well (T. 167-168). She testified that for most of her students and that they had a routine of meeting them at the bus so that they could see familiar faces, and were with them from the “second they got off the bus” throughout the day. They started the day talking about what was going to happen the rest of the day (T. 167). This would be of particular benefit to the Student because understanding what the routine is and what is expected of him helps to (See T. 537 at 5-7; 542 at 18-24). She testified that one student had in the past shown towards himself and adults and that a paraprofessional was assigned to him to minimize those outbursts, and that the outbursts were in fact minimal (T. 152).

Ms. testified that being grouped with students would not be inappropriate. She notes that the Student meets the criteria for an disorder, as set forth Dr. ’s report.

(T. 79). The Evaluation by Dr. indicates that the evaluation conducted by the indicated the presence of an disorder (Exh. 6, p. 3). In addition, Dr. found that the Student presents with behavioral difficulties consistent with his . He notes that these behaviors are confirmed by the , Second Edition which indicated that the presence of an is very likely based upon and , and possibly based upon his level of (Exh. 6, p. 5). Thus, the fact that he is grouped with students who are classified as would be appropriate.

The Parents also argue that the Student would not be appropriately grouped. New York State Regulations provide that:

The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained. 8NYCRR§200.6(a)(3)(i)

The Parents argue that the summer classroom teacher testified that at the beginning of the school year, her class had four grade students and the reading and math levels ranged from grade. The Parents note that Ms. testified that the Student was academically than her students.

The regulations mandate that the learning characteristics of students in the groups shall be sufficiently similar to assure that this range of academic achievement is at least maintained. Ms. testified that the small class size allowed for differentiated instruction which took the individual student’s needs into consideration and developed a learning program that was really individualized to that student (T. 161). She testified that each child was “definitely getting the individual attention they needed and were working at their level”. She further testified that that could have been done for the Student. (T. 161). Ms. also testified that due to the ratio, they were able to do a lot of one to one instruction. She testified that the students received one to one instruction about 50% of the time. She further testified that the paraprofessionals also provided one to one instruction under her supervision (T. 159-160).

I do not find that the range of in the class rendered the placement inappropriate. The DOE has met its burden of proof that it could have individualized and differentiated instruction so as to maintain an appropriate range of academic instruction to provide appropriate opportunities to achieve the Student’s annual goals.

The Parents further argue that they were concerned that the placement offered would not be able to meet the related service mandates on the Student’s IEP. However, there is no reason to suppose that the school could not provide the related services set forth on the IEP. Mr. testified that the Student would have been provided with the related services set forth on the IEP. “When the related service receives the mandates as part of the IEP for a student that’s attending, they make a schedule based on that and they cover whatever the IEP says”. (T. 248-249). He further elaborated that “[o]nce a student is coming, maybe that’s when they make their schedule, so it might require a therapist to visit more often or they might change their schedule to do multiple sessions in one day. It varies. They do different things.” (T. 282)

Finally, the Parents assert that they did not receive an IEP after the IEP meeting. Ms. testified that the IEP was mailed to the Parent and notes that page 2 of the IEP indicates that it was sent on February 15. She also testified that her partner, confirmed that she sent it out (T. 80-81). Ms. testified that she spoke with the Mother several times after the meeting and she did not indicate that she didn’t receive the IEP (T. 81). I find that the testimony of Ms. and the notation on the IEP (See exh. 1, p. 2) indicating that the IEP was sent out, confirms that the DOE sent out the IEP.

I find that the program recommended by the CSE was developed with the participation of the Parents and the required members of the CSE, that the program and the site offered would have addressed the child’s needs and were reasonably calculated to provide educational benefits.

Although I find that the program offered by the DOE was appropriate, I will address the placement offered by the Parents. , the Program Director at the School, testified for the Parents. Ms. testified that the school’s model is to look at the developmental framework and to see where the child has and where there are holes in development so that they can fill those in and move them up (T. 291). The school uses the ”) based model (T. 290). The school provides a twelve month program, and head classroom teachers have a master’s in special education or are enrolled in a master’s program (T. 295). The school has two sensory gyms (T. 303) and the classroom staff are trained in using the sensory gym and may use it during the day as needed (T. 305).

The Student is provided with three sessions of per week (two individual and one group), two sessions of per week and three sessions of per week (two individual, one group). Ms. testified that he was working over the summer on , his , his , his sight word reading, his math, , his and being more spontaneous in his , and . (T 312).

The Evaluation performed by Dr. notes throughout that one of the Student’s challenges is in the area of “ appeared to be one of his , and aside from occasional requests for self-interested objects or actions...which to the form of , [the Student] remained primarily (Exh. 6, p.3). Dr. noted, based upon discussion with his teacher at the School, that [f] unctional communication and making connections are (sic) continue to be significant areas of deficit. He notes that the Student’s “curriculum mostly revolves around skills, but every day 20-30 minutes include semi-structured sessions that focus more on academics and abstract thinking skills...”(Exh. 6, p. 5) Dr. recommended that:

“A comprehensive, data driven, behavioral program which addresses all areas of functioning throughout the day is required and needs to be carried out by special educators who specialize in and who can actively monitor, adjust and collaborate on his goals. His program must also incorporate intense, daily and with access to or other augmentative , as appropriate, to increase functional communication; therapy and that also focus on increasing age-appropriate adaptive skills; ; and family training and coordination. [The Student’s]

deficits significantly impact his ability to make appropriate progress without intense language, behavioral, and sensory interventions as part of a comprehensive full-day program.” (Exh. 6, p. 6)

Dr. also noted the need for discipline that is consistent and incorporates behavioral methods (Exh. 6, p. 6)

Ms. testified that she has spent over 100 hours doing classroom observations at the School. She testified that the environment is nurturing and supportive and really respects their students. She further testified, however, that it is an environment that is a little chaotic and “I’d be worried that it doesn’t have a lot of structure. The allows the students to lead and it is not a – I wouldn’t describe it as a highly structured environment.

And even Dr. ’s report indicates the need for a program that has more structure overall...” (T. 82-83)

The Evaluation dated October 29, 2010 sets forth a detailed picture of the Student’s needs at that time. The tester noted that the Student’s “ were , relative to his ability to easily and efficiently organize his thoughts and express himself in an understandable and age appropriate manner, as well as carry on a clear, relevant, goal-directed conversation. [He] typically communicated via , , or single word approximations. Periodic noted. Functionally, his skills were for age relative to his ability to easily recall, understand, as well as carry out task related demands.

Functionally his were , and he completed all tasks with structured guidance, redirection to tasks, and noticeable prompting. His , and were somewhat decreased.”

(Exh. 7, p.2).

The Student’s classroom teacher testified that the Student has made progress in the , and , improved communication, progress in interest in , and . (T. 546-548). She testified that he is now able to count with one to one correspondence for five items, which he was not able to do in September (T. 548). He also understands the sequence of when things happen in a day. He often requests music related activities and he is better able to understand the sequence of his day. He has picked up about since September and is beginning to be able to . He in the read aloud, and can say it in the context of what they are reading. He has also made progress in his ability to answer questions (T. 548-549). He is able to do more in the bathroom independently without needing adult support and is able to do more out in the community without . He can follow the safety rules (T. 550). The school has been working on giving the Student the tools to help him , including having (T. 543). The teacher testified that they have seen the Student make progress in (T. 546-547).

At the , the Student is not provided with five days per week of therapy or a data-driven program. The classroom teacher testified that she does not track his with a chart (T. 554 at 22-25; 555 at 1). Instead, the School uses to address the Student’s needs and asserts that this method has produced progress in all areas, as noted above. Instead of five days per week of , the school offers three days per week of therapy, but buttresses that with to address motivation, engagement, and the concept of a back and forth interaction (T. 624-625). While it does not work on directly, it builds on the concepts of conversation and provides the motivation to engage with others. The also uses to communicate with the Student and help him through transitions. These sing-songs are and enhance his communication abilities (T. 628 – 629). The Director testified that the teachers are expected to “cover all five domains all day long...physical, communication, , , and (T. 548).

It is not clear, however, that the work in this crucial area of communication meets the Student’s needs. The classroom teacher testified that:

“ [the Student] struggles with making his ideas clear and known. If somebody is not understanding what he’s saying, he’s not yet at the point where he’ll bring them over to whatever he’s talking about and show them. He’ll try to say the same thing over and over again, hoping that they’re able to understand. And also communication, of challenge for him is staying in a continuous flow, so he’ll initiate something and then somebody will respond and it might fizzle out within five circles of communication.” :( T. 530-531).

The efforts that the Student is making in an attempt to help others understand him make it clear that he is highly motivated to convey his thoughts, but that the ability eludes him. Although the , it appears that the Student is highly motivated to learn to improve his and that he is strategies to do so. This may be further evidence of Dr. ’s observation that the Student is susceptible to frustration in different situations (Exh. 6, p. 6).

Aside from some general testimony regarding an increase in communicativeness

(T. 548), there was no testimony or evidence submitted which would suggest that the Student had made goals set forth in the School Progress Report (Exh. 4, p. 12).

While the philosophy of the School is to offer to all children who attend the school, the evaluations submitted at the hearing support the use of a more structured, data driven, intense . There is no evidence that the School is succeeding in meeting the Student’s needs without this type of approach. If the Parents have reason to believe that this type of program is not necessary – or inappropriate -- they did not provide evidence of that at the hearing. I note that the School is the that

(T. 360-361). The evidence in this case does not show that the Student would benefit from a program that is limited to to the exclusion of ”) or another formal data-driven method; when the evaluations submitted at the hearing indicate a need for an intense data-driven, behaviorally-based program (See Exh 6, p. 5 and 6). Nor is it clear why the School does not use in conjunction with (See T. 403-404).

I note also that Dr. ’s evaluation recommends that:

...[The Student] requires an environment where caregivers clearly state their expectations and subsequent consequences when expectations are not met. Discipline should be consistent and incorporate behavioral methods.

State rules in a positive manner, allowing [the Student] to understand the behaviors in which he needs to engage.” (Exh. 6, p. 6)

It is not clear that the School’s methods of addressing the Student’s behaviors that impede his learning are providing him with an opportunity to access his education. Rather than following Dr. ’s recommendation, the School does not follow a behavior intervention plan or try to change the that impede his learning. Their philosophy is to understand the reason for the behavior and to help students move ahead so that they no longer need to use their to express themselves (T. 39-393). However, there is no evidence that this method allows for progress in all realms in this Student’s case.

In sum, although I do not need to reach this issue, having determined that the DOE has met its burden of proving that its recommendation was appropriate, I find that the Parents have also not met their burden that the unilateral placement at the School would be appropriate.

The Parents’ request for tuition reimbursement is denied. Date: December 20, 2011

________________________________

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 RECORD ON AUGUST 9, 2011

PARENT

A Hearing Request, 7/5/11, 7 pp. B Findings of Fact and Decision, 5/16/11, 25 pp.

DOCUMENTATION ENTERED INTO RECORD ON SEPTEMBER 26, 2011

PARENT

C Notice of Unilateral Placement, 6/17/11, 4 pp. D Due Process Response, 7/13/11, 4 pp. E FNR, 6/10/11, 1 p. F Subpoena Duces Tecum, 9/1/11, 2 pp. G School Enrollment Contract, 6/24/11, 4 pp. H School Payment Schedule, 6/24/11, 2 pp. I Proof of Payment to the School, 9/14/11, 1 p. J School Teachers/Therapists, 2011-2012, 1 p. K Class Schedule, 2011-2012, 1 p. L School Curriculum, 2011-2012, 3 pp.

DEPARTMENT OF EDUCATION

1 IEP, 2/14/11, 16 pp. 2 Minutes of CSE Meeting, 2/14/11, 2 pp. 3 FNR, 6/10/11, 1 p. 4 School Progress Report, 12/2010, 14 pp. 5 Classroom Observation Report, 10/14/10, 2 pp. 6 Evaluation, 8/23/10, 7 pp. 7 Evaluation, 10/29/10, 5 pp. 8 Due Process Complaint, 7/5/11, 6 pp. 9 Due Process Response, 9/22/11, 4 pp.

DOCUMENTATION ENTERED INTO RECORD ON OCTOBER 17, 2011

PARENT

M Letter Regarding Site Visit, 6/21/11, 1 p.

IMPARTIAL HEARING OFFICER

I Emails among IHO and Parties, 8/3/11, 21 pp.

POST-HEARING SUBMISSIONS

IMPARTIAL HEARING OFFICER

II Parents’ Closing Brief, 12/14/11, 21 pp. III District’s Closing Brief, 12/14/11, 28 pp.