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: September 15, 2011

September 27, 2011

October 14, 2011

Record Close Date: November 28, 2011

Hearing Officer:

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

Attorney — Student

Parents

Parents

Attorney — DOE

School (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 27, 2011

Attorney — Student

Parents

Parents

Director of Learning (via telephone) — Student

DOE Attorney — DOE

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

Attorney — Student

Parents

Parents

Therapist (via telephone) — Student

Teacher (via telephone) — Student

DOE Attorney — DOE

The parents of . (“ ”) requested an impartial hearing on his behalf in a letter from their attorney dated July 6, 2011. The hearing was held on September 15, 2011, September 27, 2011, and October 14, 2011, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sec. 1415 (f)(1). The parents and the New York City Department of Education (“DOE”) each were represented by an attorney. Lists of the documents that were accepted into evidence and the individuals who appeared each hearing day are included in this decision. Procedural History and Extension of Time Lines

I was appointed to hear the matter on July 7, 2011. The following extensions of the timelines were granted: on July 27, 2011, the parent requested an extension due to witness availability and the compliance date was extended to October 3, 2011 (Tr. 99100). On September 15, the parties jointly requested an extension due to availability of the witnesses and I granted the extension to November 2, 2011. On October 31, 2011, the parent requested an extension to allow time to submit post-hearing legal memoranda and I granted an extension to December 2, 2011. During each of these time periods the student was attending school and receiving all of his services. The additional time was necessary to allow the parties to fully exercise their due process rights.

Background

is an and a year old boy who was classified as by the Committee on Special Education (“CSE”) and recommended to attend a New York State approved non public school, in a class with a student to teacher ratio of , pursuant to an Individualized Education Program (“IEP”) dated June 8, 2011 (Ex. 9). He also was recommended to receive three times per week for thirty minutes per session, and ( ) once a week for a thirty minute session, three time per week for thirty minutes per session, and group ( ) twice a week for thirty minutes per session. One session per week of group counseling was terminated (Ex. 9-16). The student attends (“ ”), a state approved non public school (Tr. 16). .None of the program or service recommendations stated in the IEP are in dispute. (Tr. 8 - 10). The parents requested the impartial hearing because they allege that the DOE denied their son a free appropriate public education (“FAPE”) by failing to recommend home-based services. The parents maintain that an appropriate program includes and eight hours of a program to address 's behavioral issues, which if not addressed through an appropriate at home program, will significantly hinder his ability to learn. The issues in this hearing are whether the DOE failed to offer a FAPE because it did not include a home program in the IEP and, if not, whether the parents are entitled to reimbursement for the monies paid for the services they have provided for their son. The Department of Education Witness

Dr. testified that he has been a school for the DOE for approximately seventeen years (Tr. 14-15). He sat as the school and the district representative for the annual review for on June 8, 2011 (Tr. 15, 17). As per the sign-in sheet of the IEP, the other participants included , a DOE social worker, 's parents, a his classroom teacher, (Ex. 9-2; Tr. 19). According to Dr. the meeting was a subcommittee meeting because it was to continue services and therefore a full committee was not required unless the parent requested a full committee (Tr. 17-20). Dr. testified that as a subcommittee, “all that we would be empowered to do in terms of making a placement recommendation would be to recommend the services continue at the same site.” (Tr. 87).

Dr. testified that the parents were informed of the powers of a subcommittee only to continue services and instructed that if they wanted any “substantial” modification from that recommendation they would have to request a full committee meeting from the CSE chairperson (Tr. 19-20). He could not recall if the parents made such a request at that time (Tr. 20-21).

Dr. believed that the parents received a draft of the IEP from prior to the annual review and recalled that they acknowledged seeing the draft at the time of the meeting. (Tr. 21). Dr. tesitified that he would have received the draft IEP on the same day of the review (Tr. 81-82).

For the most part, pages 9-1, 9-3, 9-4, 9-5 and 9-7 through 9-17, containing all of the goals, the (“ ”) and the related services that the student would receive were drafted by staff (Tr. 22-24, 32, 34, Ex. 9-16, 9-17). According to Dr. , at the review, Ms. summarized 's performance and was given the opportunity to address any inaccuracies or make any necessary additions (Tr. 25-26). She indicated “that everything in the draft was correct and what the school was recommending” for the upcoming school year (Tr. 26). Dr. did not recall the specific contributions the parents made at the meeting but added that they were invited to share their perception of how their son was doing at and whether continuing there with the recommended services was appropriate (Tr. 26-28).

Neither Dr. nor Ms. ever observed at (Tr. 58). There was no information available as to whether an observation ever had been done by the DOE (Tr. 90). Dr. has no experience providing direct services to children on the (Tr. 58-59). He has worked in schools with children on the and has participated in IEP meetings for children on the spectrum (Tr. 59).

Dr. testified that no one disagreed with the descriptions of 's academic, social and performance as written on the IEP draft (Tr. 28-30, 38, Ex. 9-3, 9-4, 9-5). No one suggested that the academic management needs, or needs noted on the IEP could not be addressed during the school day (Tr. 29-31, Ex. 9-3, 9-4, 9-5). He stated: “I don't recall anyone suggesting that any part of the IEP was inaccurate.” (Tr. 31).

He also stated that he did not recall the specific discussions at 's meeting, including whether had a home program, whether the parent requested any sort of outside services for their son, the specifics of his , or whether anyone stated that could not meet the student's needs unless the student also received a home program (Tr. 36, 38, 40, 43, 57, 67, 68). took minutes of the meeting. Dr. described her as very “thorough in documenting any specific...disagreements or...corrections that anyone might propose to the drafts that were submitted to us....or any specific concern that a parent may have....” (Tr. 41). He believed that if the parent requested home services it would be reflected in the minutes (Tr. 41).

Dr. testified that at the meeting, regarding the IEP goals, it was “[o]ur understanding that these were the goals that the school was proposing that their program would be working on either through classroom instruction or the related services provided.” (Tr. 32-33).

Dr. further testified that was recommended to continue at a New York State approved nonpublic school, specifically , with an class ratio and that no one who participated at the meeting expressed that any component of the recommendedation was inappropriate (Tr. 56). He did not recall anyne discussing that the student would need support in the classroom (Tr. 36). At the meeting, the school indicated that “he was making progress, he was working towards his goals, and ...the school deemed he was approppriate to continue in their program.” (Tr. 37). The Parent's Witnesses

's mother testified that the parents were aware that their son had issues as early as year of age. He received services including special instruction, and from the ages of years and months until he was and a years old. (Tr. 147, 217-218). At age received a evaluation and was diagnosed with , placing him on the . Through the Committee on Preschool Special Education (“CPSE”) process attended a full day center-based program and also received 20 hours of (“ ”) therapy per week, , and (Tr. 149-150, 220). The first year at preschool he was in an classroom and was moved to a classroom for his second year. (Tr. 152). The parents voluntarily reduced the number of at home services to fifteen hours (Tr. 153).

For kindergarten, in September 2008, began at . At the turning CSE review, the CSE put on 's IEP, but would not offer an after-school program (Tr. 154, 223). The parents put the after-school program in place in January 2009 because he was “doing beautifully academically” and behaviorally “was extremely challenging” for the teachers and himself (Tr. 155).

The parent described as having significant challenges. (Tr. 157). The parents and professionals they consult regarding all felt that belonged in a “strong academic program with a program that could move him forward” and that his behavioral issues should be addressed, but not in a school program where that would be the primary focus of his education (Tr. 162-163). The parents believed that he did not belong in a more restrictive program because he was handling the academics, but continued to need the after school in order to participate in the school environment (Tr. 163-164). The parent explained that the after-school program “allows him to ...regulate his own behaviors”, helps him to improve his to verbalize the that he is feeling rather than “turning out the world through ”, and helps him to improve his (Tr. 164-165).

The parent described the progress she has seen her son make over the past few years. When he entered he could not at a time, but now can during a regular class session (Tr. 165). If he needs a break he can of the room. He now can have appropriate, if memorized , whereas previously he could not (Tr. 165-166). He no longer is a or about peer interactions (Tr. 166). The parent described how the home therapist worked intensively on the skills had to develop to extinguish his tendencies and his (Tr. 270-271). worked on these skills as well, but not as intensively (Tr. 271-272).

At he receives a full curriculum that is “on par with the New York State learning standards.” (Tr. 167). He also receives a “ ”, and with (Tr. 167-168). Although 's was terminated, the parent was told that now offers counseling to all of its students as part of the regular curriculum. (Tr. 168-169).

The parents reduced the number of after school hours to eight this year. (Tr. 167). At home, works on “ .” and the will practice a and then generalize it to other individuals like the mother, 's sister, the building doorman, and then perhaps the doorman next door or individuals working in the community, the idea being that these skills “support his ability to participate and be in the classroom.” (Tr. 170, 268). The therapist also works on and to from beginning to end by providing strategies. (Tr. 170171).

The therapist knows which in the classroom through regular e-mails from teachers and therapists either to the parent or the therapist, as well as a daily goal sheet which includes of his performance in each class as well as a comments section from the teachers or therapists if did not achieve his goals or had a good day. (Tr. 171-172; Tr. 175-176; Tr. 236-238; Ex. BB; Ex. AA; Ex. DD). The will engage in a conversation about the goals and also work (Tr. 172-173). mother testified that she works from home full-time and is available during the sessions to help “get to the root of the problem” if is having difficulty and is “totally unable to verbalize” (Tr. 174). The staff at also reach out to the parent who in turn relies on the advice of the therapist for strategies to address (Tr. 182-185; Ex. DD-9).

The parent testified that as a result of school breaks, and more frequently . (Tr. 187). The school staff communicates these concerns to the parent who will inform the because she will target those behaviors in her sessions with since the purpose of her work is to address “the issues that are interfering with his .” (Tr. 177-178). Over the summer months when offers a more challenging program, the home-based therapist also works on academic areas, particularly reading comprehension which is more challenging for (Tr. 179-180). Often the focus of these sessions is to assist with selfregulation while performing a task (Tr. 179-180).

The parent testified that she has seen progress this year through 's greater engagement in school. He converses more and scripts less often. He self-regulates more behaviors that enable him to stay in his seat and participate (Tr. 185-186).

The parent testified that alone “would serve” 's academic and social needs (Tr. 186). “is on or close to grade level, based on his testing in both literacy and math.” (Tr. 233). I think that he would without the .” She stated that it is appropriate as a school placement, but that “would not be ...making the progress that we're seeing him make and progress that's reflected in progress reports and the IEP...” (Tr. 186). The parent believes that would be able to address 's academic, and IEP goals (Tr. 251-252, 266). She further testified that the program, (“ ”) has been particularly beneficial to in the last couple of years. The parent explained that relies on an adult-student relationship which forms the basis for the student to generalize to peers and other areas of their lives and development (Tr. 225-226). The parent described as very open to 's behaviors that are a manifestation of his issues, like or , and have a component with equipment and facilities to address (Tr. 227-228). Additionally, has a developed by his teachers and as part of his IEP which identifies and to help manage those that are with his classroom work. There also are goal sheets that focus on at a time that the student is responsible for monitoring throughout the day (Tr. 228-229). The parent has found these strategies to be useful and that the reflects an understanding of and his needs (Tr. 229230). She added, however, that there is not enough time in the school day “to devote to in the way that the home program can focus on his .” (Tr. 230). provides the parents with ongoing discussions, support groups and trainings to support the work the studetns are doing in the classroom (Tr. 248).

testified that she particpated at the June 8, 2011, CSE meeting. , the head of school, “came by a couple of times...although she wasn't in attendance at the meeting the whole time.” (Tr. 188). At the end of the meeting, after reviewing the entire IEP, the parent testified that the parents requested that the home program that they have had in place for the last few years be placed on the IEP as a related service (Tr. 189-190). According to the parent, they were told that it was not appropriate to discuss services to be provided outside of school at the CSE meeting and that they could pursue their request through due process (Tr. 190-191, 196).

testified that she and her husband were asked to sign the CSE Meeting Minutes form to reflect their attendance (not their approval of the minutes) and did not see the document again until the first impartial hearing date. (Tr. 191-192). According to the parent the minutes are incomplete in a number of ways. There is no indication marked that the recommended placement was discussed, that 's teacher, , participated for the entire meeting or that was present during part of the meeting. (Ex. F; Tr. 193). The parent recalled that Ms. stopped in to explain how counseling had been incorporated into the school's program for all of the students and to listen to the end of the meeting regarding the parent request for a (Tr. 193). The request itself is not reflected. The parent testified that the few statements that are included are true and reflect only a portion of what was discussed during a half hour long meeting (Tr. 194, 274).

testified that she and her husband signed the Final Notice of Recommendation at the end of the IEP meeting, as they have been asked to do in previous years. (Tr. 194195; Ex. G). The parents consented to all of the services indicated on the notice, but on the form, the mother wrote: “We consent to the school placement and related services listed above on the IEP. It was explained that after school services cannot be the subject of this meeting. We do not waive the right or opportunity to seek funding for afterschool services by signing here.” (Tr. 195; Ex. G). The parent testified that similarly, at the meetings for the last two school years, the parents were prohibited from discussing the home program at the meeting and made a notation on the Final Notice reserving their rights to do so in the future (Tr. 204-205; Ex. R, Z, AA).

The parent testified that she and her husband never were told that the IEP meeting was a “subcommittee” meeting and that she had never heard that term used until the prior hearing date (Tr. 196).

Subsequent to the CSE meeting, sent a letter on the parents' behalf to , CSE Chairperson, to explain 's benefit from the home program (Tr. 198-199; Ex. C). The school or parents never received a response to the letter.

The parent testified that the does not write progress reports, but communicates with the parent daily (Tr. 247). The home provider wrote an example of the types of goals she worked on in the summer months in an e-mail to the parent (Ex. DD-7). There are no other written goals (Tr. 247).

, the head of , testified that is on the is “ ”, and “has behaviors that really do interfere with him getting the most out of his classroom experience.” (Tr. 280). He is , can become and can be (Tr. 280). Ms. testified that she “met with the home provider at one point”, during the 2009-2010 school year, and that the parent and head teacher communicate with the (Tr. 282, 295). Ms. feels that needs extra help to get him past some of the and to help him to generalize what he is learning in the classroom (Tr. 285-286). The teacher addresses 's through the teacher using “a lot of , , . She also works with the home and the to come up with...plans to help these .” (Tr. 292).

Ms. testified that all of the academic and related services goals are being addressed in the school. (Tr. 302-303, 316). Ms. testified that can meet all of 's - as she sees them in school. The school uses a classroom management program that involves “a proactive approach to working with students with ...using , using redirection, using a variety of strategies to help the child to attend and be a productive part of the classroom.” (Tr. 296-297). also has a weekly thirty minute social skills class (Tr. 310). Prior to the 2011-2012 school year, she has seen make progress at and attributes it to “the collaboration with home and with his therapist at home.” (Tr. 286-287, 301, 304-305).

Ms. testified that she attended a part of the June 8, 2011, IEP meeting in order to discuss the termination of 's services (Tr. 308). Since September, consultants are meeting with 's class of twice a week to address the core deficits of such as , , . (Tr. 313-314, 319). She could not recall if she was present to discuss the request for home services (Tr. 308).

testified that she has an undergraduate degree in special education as well as a Master's Degree in early childhood special education. She has taught for eight years, including a class for children on the and received trainings at two different schools where she worked in and children on the (Tr. 340-341). In addition to teaching a class of children with a variety of disabilities, she is a special education itinerant teacher (“SEIT”) in the classroom and home settings with children on the (Tr. 341).

receives his home services from Ms. and her husband, . She bills for six hours and her husband bills for two hours (Tr. 359-360). They communicate regularly about the work they are doing with , and work similarly with him (Tr. 360). has a Master's Degree in early childhood special education (Tr. 361). Ms. charges $ per hour for their services (Tr. 359). She does not remember how the rate was determined (Tr. 370). She did not know who determined the number of hours of home services should receive (Tr. 369-370).

Ms. knows because he was her student in pre-school for and a years. Since he finished preschool she has been working with him at home for about two and a half years (Tr. 342-343). She described his as “ ”, with skills in areas like math, and more difficulties with reading comprehension. , he presents with a lot of selfstimulatory tendencies, especially in terms of language, like language from television shows, language from books. He can also get about certain things” like the (Tr. 344).

Ms. testified that requires services over the summer months because when he has had breaks because of vacations she has seen “ management” areas that she works on with him (Tr. 345, 353-354). She sees an and and a to (Tr. 353-354). The breaks in service coincide with breaks from school (Tr. 365). When he returns to school, his behavioral check lists are returned with staff reports that he has difficulty attending (Tr. 354).

Ms. testified that she uses a “modified approach in working with 's needs” (Tr. 371). She explained that he needed more of a strict when he was younger while now he needs to work more on generalizing the skills with other people across all environments (Tr. 371-372). This school year she primarily works on managing the with prompting and incorporating appropriate with peers and adults. They “also work a lot on managing the and working on and when he gets upset, especially related to the things, working on and .” (Tr. 345). Her specific goals with vary with what is working on in the classroom; she is in with primarily his parents, and his (Tr. 346, 365). She has had direct contact with 's teacher “only a couple of times” (Tr. 365). She stated that at least on a weekly basis she gets updates from either the teacher or 's parents about how is doing in school and how the , and she always is informed about the goal at school (Tr. 347-348, 351). She described a “loop” of communication between her, the parents and the teachers (Tr. 351). She has sessions with three times per week, and during each session talks to the parents about 's performance.

Ms. explained that the behaviors can interfere with 's ability to attend and learn within the classroom. The that he gets at home helps him to manage all of those obsessive tendencies in order for him to attend and learn in the classroom in a group (Tr. 353). They focus on the behaviors that are prerequisites for sitting and learning in a classroom (Tr. 355). Ms. does this by having work on tasks similar to those he would be working on in school, and then they work on managing the behaviors that arise in that situation (Tr. 357-358, 373-376). In order for to generalize the skills Ms. addresses with him, she has work on communication skills in the context of a play date once a week and also takes him outside of his room or home environment (Tr. 381-382).

Ms. observed that already has made progress this school year. She based her testimony on the behaviors and behaviors she explained are readily observable (Tr. 358-359). For example, she has seen “a marked increase in his ability to initiate greetings and initiate and maintain like with another child which four months ago he could not do on his own.” (Tr. 359).

Ms. testified that she does not take data of . She uses the classroom checklists and the work that they are doing as the behavior that she is measuring. She stated that she just uses the observable behaviors (Tr. 384). She can tell from the reports from school and the constant work with and communication with his prents whether he is decreasing the behaviors they want to eliminate and increasing the skills they want to develop and maintain (Tr. 384-385).

Ms. testified that she is 's head teacher at , in a grade classroom (Tr. 390). This is her second year as his teacher. She described as a “ student. He has attention difficulties and staying on task....He becomes easily distracted by and and he requires cues to remain with the group.” (Tr. 391). She stated that he requires a behavior plan “for less structured activites to help him remain . During less structured settings it's difficult for [ ] to engage with a peer independently, so he requires prompting and teacher support in these instances.” He often echoes the sentences that he last hears of his peers. (Tr. 391).

Ms. stated that the teachers “use a lot of directed statements” and a with visual support, to address 's behaviors in the classroom. has been very responsive to the check board system in the behavioral plan which now has been implemented since the middle of the last school year, on Ms. 's advice (Tr. 392-393). He can see when he has earned three checks for participating in a targeted task or goal and in exchange earns a reward (Tr. 393, 427). He has a list of reward choices that are , like . These help him come back to the group with a . (Tr. 395-396). He has the board with him throughout the day and continuously can earn three checks for a reward. He is and initiating more consistently to earn rewards under the (Tr. 393, 401).

The students in 's class also have a goal sheet with the opportunity to earn based on how many reminders they have needed to achieve their particular goal. Lately, has mostly been earning smiley faces, requiring fewer prompts to achieve his goal than in the past. His goal is to sit with “the whole body listening position” (Tr. 398).

Ms. described as a school with a social skills approach. needs the consistency of hearing the terms used to describe certain behaviors throughout the day. He understands the terminology used, “but his ability to kind of follow it and use it is still something” that his teachers are aiming to improve (Tr. 399).

Ms. testified that she is in contact with the who carries over the work that is being done at school. She also learns approaches to use with from Ms. , like the visual support of the check board (Tr. 400-401). The staff will communicate with both parents and the via frequent e-mail (Tr. 402-403, 424-425).

is in a class with students, head teacher and assistant teachers. Academically, is on par with his classmates. He is completing grade level work in social studies and science. Ms. testified that is on the end of the class in terms of behaviors. “He needs more support with certain social and remaining on task behaviors” (Tr. 406). These behaviors, she explained, “definitely impact on [ 's] disengagement and off topic and are present throughout the day and it definitely requires more support” (Tr. 406).

This year she is focusing on his IEP goals including reading comprehension, mathematical abstract concepts, more social interactions with peers, initiating conversation, and such as (Tr. 408). Ms. testfied that all of s management needs as articulated on his IEP are being met in the classroom (Tr. 438-439). All of his academic goals, goals, goals and physical education goals are being met at (Tr. 439-440). Ms. testified that the was developed by the director of curriculum and it is used in the classroom. (Tr. 440). 's is addressed in the classroom through verbal and visual prompts and redirection. (Tr. 441). Ms. discusses 's during her weekly meetings with the social skills teacher, (Tr. 447). They talk about how to “approach [ engaging more with his peers to also ] remain on task.”

Ms. is aware that the work of the is “kind of an extension of what we do at school” and going out into the community (Tr. 408-409). Ms. feels that “needs” the program (Tr. 409). She has seen that collaborating with Ms. , makes progress and it helps the teachers in the classroom as well. (Tr. 409-410). She feels that needs the support and consistency between the two environments. She acknowledged that she never has observed him without the home program, but she sees the benefits of having the program and her ability to collaborate with the therapists (Tr. 409-411). is a child who needs the repetition of the terminology used in school and the visual reinforcement continued at home. She thinks that 's increasing ability to generalize skills is helped by the dual program (Tr. 411).

Ms. testified that she participated in the CSE meeting for the current school year. She recalled the team saying that they wouldn't engage in the discussion of home services....” They told the mother that if she wanted additional services for she could invoke her due process rights. (Tr. 415, 455). She testified that she and 's thearpists wrote all of IEP except for his which was written by the curriculum director and school psychologist (Tr. 459).

After the meeting, at the parent's request, Ms. wrote a letter in support of 's home program to the CSE to reiterate how it was important that the program be continued (Tr. 415; Ex. C). She did not receive a response to the letter. Ms. thinks that all of s needs are met in the classroom or in as they relate to the school day, but she thinks that “there is a definitely inherent limits and I think that the carryover at home has been beneficial in seeing real gains” (Tr. 417).

Findings of Fact and Conclusions of Law Legal Framework

The central purpose of the IDEA is to ensure that children with disabilities have available to them a free appropriate public education (“FAPE”). 20 U.S.C. Sec. 1400(d)(1)(A). See Bd. Of Educ. v. Rowley, 458 U.S. 176, 179-80 (1982). A FAPE includes special education and related services designed to meet the student's individual needs, provided in conformity with a written IEP, at public expense. 20 U.S.C. Sec. 1401(9); 20 U.S.C. Sec. 1414 (d). The special education and related services must be “tailored to meet the unique needs of the particular child and be 'reasonably calculated to enable the child to receive educational benefits.'” E.S. ex rel. B.S. v. Katonah-Lewisboro Sch. Dist., ---F. Supp. 2D ---, 2010 WL 3835008, at *1 (S.D.N.Y. Sept. 30, 2010) (quoting Rowley, 458 U.S. At 207) (additional internal quotations omitted).

A board of education may be required to pay for education services obtained for a child by the child's parents. The prevailing standard used to determine whether the local school district must reimburse parents for private school tuition or other education services is the three-prong “Burlington/Carter” test. Reimbursement can be awarded if the services offered by the board of education were “inadequate or inappropriate”, the services selected by the parent were appropriate, and equitable considerations warrant it. School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). Prong I: Did the DOE offer DL a FAPE?

A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; M.S., 231 F.3d at 102; Application of the Bd. of Educ., Appeal No. 04-031). If a procedural violation has occurred, relief is warranted if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93 94 [S.D.N.Y. 1996]), compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL3218 [S.D.N.Y. Nov. 14, 2002]), or seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 3 F. Supp.2d 144, 3 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]). Thus, Prong I of the Burlington-Carter test entails both procedural and substantive considerations. Procedural Violations

The CSE's failure to permit the parents even to discuss their belief that their son needed a home program to address his behavioral issues impeded 's right to a FAPE because it resulted in a loss of educational opportunity, compromised the development of an appropriate IEP resulting in a loss of educational benefits and most egregiously infringed on the parents' opportunity to particpate in the IEP formulation process.

The testimony of the parent and 's teacher are credited regarding the CSE's refusal to allow a discussion to occur about a home program for . The CSE psychologist, Dr. , testified that he did not recall the specifics of the IEP meeting, yet he suggested that the parents never brought their request for a to the attention of the CSE explaining that if they had, it would have been reflected in the meeting minutes (Tr. 41). Yet, as he also testified, the minutes were incomplete (Tr. 106). Indeed, they do not reflect the participation of 's teacher or the head of school (Ex. F). As noted by the parent, the few sentences that are included may be true, but hardly reflect the content of a half hour long meeting. Moreover, a written statement added to the Final Notice of Recommendation signed by the parent at the meeting belies Dr. s position since she explicitly wrote that “it was explained that after school services cannot be the subject of this meeting....” (Ex. G-1). Nothing in the record supports the notion that any one from the CSE was confused or surprised by the parent including that on the notice. Additionally, the CSE psychologist testified that the IEP meeting was a subcommittee meeting rather than a full CSE meeting precisely because the CSE intended only to continue the recommendations from the previous year (Tr. 17-20). Only Dr. 's less than reliable testimony exists to support that fact. It must be noted that when asked by the hearing officer whether he recollected whether the CSE had a particular document in its possession at the CSE meeting, Dr. testified: “...honestly, I don't have a specific recollection of any of the documents...including the documents that clearly are in my handwriting.” (Tr. 80). Since Dr. sits on hundreds of reviews per year, this statement alone would not ordnarily put a witness's testimony into doubt. However, here, the same witness claims to remember that no one at the review had any concerns or raised the student's need for the home program, a service that has been in place for the student for years. In light of all of the inconsistencies realted above, that is just not credible. The parent credibly testified that the parents were first notified that it was a subcommittee at the impartial hearing, not even being aware that less than a full CSE could meet. The evidence fully supports the finding that the CSE came to the meeting with a closed mind and certainly did not allow the parents even to explain their reasons for thinking that needed the home program to benefit from the other recommendations.

The IDEA requires that parents participate in the process of developing their child’s IEP (Appeal No. 96-31). Federal and State regulations grant parents the role of participants, not merely observers, at meetings held to develop IEPs. (8 NYCRR §200.4(c)(3); 34 C.F.R. §300.345(a)). The SRO has repeatedly held that a CSE does not fulfill its obligation to afford parents a meaningful opportunity to participate in the development of their children’s IEPs by merely listening to the parent’s concerns and then unilaterally preparing the IEPs (Appeal Nos. 91-13; 92-7; 93-42). In this case, by not allowing the parents to even voice their concerns, or explain the rationale behind their request for a program, the CSE disregarded its obligation with regard to parental participation. Even if the CSE ultimately disagreed with the parents' opinions, it had an obligation to engage with the parents in a meaningful discussion about their concerns. It should come as no surprise that the DOE may have understood that was prepared to meet all of s needs (Tr. 32, 33, 77, 438; see IHO Ex. II @ p. 3) when the district CSE representatives prohibited a full discussion including the relevance and importance of the home program and the parents were forced to comment only on the school component of their son's educational program knowing that they could attempt to secure the home program through the imparital hearing process or provide it through their own financial means. There is absolutely no evidence that the all of the participants to the CSE discussion were aware or in agreement that that their comments about being appropriate or meeting 's needs were about alone. Because the parents were precluded from sharing with the CSE their concerns regarding such an established and crucial component of ’s educational program, the CSE review was incomplete and this procedural violation must be considered a denial of FAPE.^[1] Substantive Violations

The district did not support its burden of demonstrating by a preponderance of the evidence that the IEP was “reasonably calculated to enable the child to receive educational benefits” Rowley 458 U.S. at 207. The district did not present any evidence to support the necessary finding that, standing alone, the IEP would be likely to produce progress, not regression” Walczak, 142 F. 3d at 130 (internal quotation marks and citation omitted). On its direct case, the DOE did not present a single witness from the recommended program to support the proposition that alone was an appropriate program. In fact, as the parent's witness, the head of school, Ms. , stated that “needs ” (Tr. 285-286) and that the progress she observed prior to the June 2011 IEP meeting was attributable to a collaboration between and the program provider (Tr. 286-287)2. She further stated that she was unable to form an opinion as to whether could make progress with alone (Tr. 306). Ms. teacher, testified that he “needs” the program in order to progress at school. While these same witnesses testified that benefits from 2 She was unable to comment on whether had made progress during the 2011-2012 school year. his program at , has all of his academic, and needs as well as his IEP goals addressed or met there (Tr. 438-440), and has some of his addressed (Tr. 283, 294, 322, 441), they made clear that it was accomplished through the collaboration between and the home program. (Tr. 286-287, 409-411). Nothing in the record supports the conclusion that would derive meaningful benefit from alone.

The testimony in this case stands in contrast to a recent Southern District case, C.G. and L.G., on behalf of B.G. v. New York City Department of Education, 09-Cv. 6169 (S.D.N.Y. 10/25/10) in which the court also was required to determine whether the student's school program was appropriate without the fifteen hours of services he had been receiving. More specifically, the court asked whether the student's progress at his school “could only be accomplished when coupled with the after-school services” Id. at

8. Like the instant case, documentary evidence in the record demonstrated the student's progress at the recommended school. There was no documentary evidence in the record with respect to the after school program. Here, while there are no progress reports or data records, there are a few e-mails showing the type of communication between the school, parent and provider, described in the testimony, to establish the ongoing nature of the collaboration between the school and the home provider. In the District Court case, however, the court upheld the IHO's analysis of the testimony as upheld by the SRO, wherein the IHO found that the student's former day school teacher's testimony “indicated that such services would be a “benefit” rather than a necessity for progress.” Id. at 9. Moreover, the school director testified that the student's needs were met during the school day and that his needs were not met “due to the supplemental after-school services...” Id. at 10. As described fully above, in addition to the parent and provider testimony supporting the need for the , the head of school and student's school teacher both stated that his progrtess is based on the collaboration of the school and home components of his program.

The CSE did not develop a program that was reasonably calculated to enable to receive meaningful educational benefits. Mrs. B. v. Milford Bd. Of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997). The record establishes that the is an integral component of an educational program for , but is insufficient alone to provide an appropriate education. The parent, 's teacher, the head of school and the home provider all testified credibly that while derives benefit from he is available to learn there, in large part, as a result of the home services which focus on decreasing the behaviors that interfere with his ability to learn. (Tr. 163-165, 286-287, 301, 304-305, 345-346, 353, 357-358, 373-376 The record shows that the school communicates daily with the parents who include the home providers in the flow of information (Tr. 172-176, 236-238, 347-348, 351, 402-403, 424425; Ex. AA, Ex. BB, Ex. DD) and that strategies are shared between the home provider and the school (Tr. 182-185, 400-403 ), enabling 's educators both at and home to tailor a program to meet his needs. Prong II: Was the Parent's Unilateral Placement Appropriate?

The parent bears the burden of proving that LSS is an appropriate program for

DL. See Schaffer ex rel. v. Weast, 546 U.S.49, 58, 126 S.Ct. 528, 163 L. Ed. 2D 387 (2005); N.Y. Educ. L. 4404(1)(c). To meet this burden, the parent must demonstrate that the educational services provided by the home ABA providers address identified special education needs. The record supports the finding that the dual program provides an appropriate and “reasonably calculated” program for However, the parents met their burden as it applies to the six hours of services provided by Amy Richard, but not the two hours provided by Alex Richard.^[3]

The standards for determining whether a private school placement (or in this case the privately obtained service) is appropriate under the IDEA are similar, but not identical to evaluating the appropriateness of the DOE's proposed placement. See A.D. v. N.Y. City Dep't of Educ., 690 F. Supp. 2D 193 (S.D.N.Y. 2010). To be eligible for reimbursement, the parent's chosen placement is not required to meet federal or state requirements, but rather a less stringent standard. See Carter, 510 U.S. at 14; Frank G. v.

Bd. of Educ., 459 F.3d 356, 364-365 (2d Cir. 2006). The core issue is whether the private placement is “reasonably calculated to enable the child to receive educational benefits.” id. at 364 (citing Rowley, 458 U.S. at 207). “No one factor is ...dispositive” of this issue. Instead, courts must consider “the totality of the circumstances....” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112(quoting Frank G., 459 F.3d at 364-365). Ultimately, the analysis requires determining whether “[the] unilateral private placement ...provides education instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo,489 F. 3d at 115.

The parent and Ms. both testified extensively about issues that interfere with his the classroom and the services provided to at home by Ms. to diminish or . The therapist is kept aware of the specific through constant communication, primarily to the mother from the school in the form of e-mails and daily reports which are transmitted to her (Tr. 171-172, 175-178, 236-238). Ms. has these situations as the focus of her sessions with , using strategies to diminish , increasing 's ability to attend to learning, and generalizing his across settings (Tr. 179-180, ).

The parent, teacher and provider all testified that has shown progress this year. He more that enable him to stay in his seat for longer periods and to participate and he is better able to express his needs (Tr. 185-186). The testimony and the extensive progress reports from the 2010-2011 school year show the progress made prior to the CSE review, underscoring the parents' choice of continuing the dual program as an appropriate one. (Tr. Ex. ). Most relevant to this determination, the teacher and head of school both testified that 's progress is attributable to the collaboration between the school and home programs. (Tr. 301; 409-411; 413-414) The school has relied on advice from the home provider in creating and implementing a successful part of 's school behavior plan (Tr. 410) and also has asked Ms. for advice about how to manage some of 's specific when they have not been successful.

The record fully supports the finding that the home program is specifically tailored to 's unique special education needs and that he is deriving meaning ful benefit from it. Prong III: Equitable Considerations

Once a decision has been made in favor of the parents on the first two prongs of the Burlington-Carter test for reimbursement, it must be determined whether equitable considerations support the parent's claims. “[E]quitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363-364 (2d Cir. 2006) (citing School Comm. of Burlington, Mass. v. Dept. of Educ. of Mass., 171 U.S. 359, 374 (1985)). Where a district fails to provide a student with a free and appropriate public education and the private placement is found to be appropriate, “the court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” N.R. ex rel. T.R., 2009 WL 874061 at *6 (March 31, 2009) (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)). A “major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the city throughout the process to ensure that their child receives a FAPE.” (id. quoting Bettinger v. New York Bd. of Educ., No. 06 CV 6889, 2007 WL 4208560, *6 (S.D.N.Y. Nov. 20, 2007)).

The district argues that equitable considerations should preclude an award of reimbursement because the parents had no intention of placing the student in without the home services. The parent, however, did continue the student in without the home program, taking the risk that they might have to bear the financial cost of doing so. The district cannot be permitted first to deny the parents the right to discuss the home program at the CSE, and after failing to even consider it, cry foul when the parent pursues the recourse the district directed was hers to pursue. Additionally, the parents put the district on notice that they retained their rights to challenge the CSE recommendation promptly, by stating it on the final notice of recommendation on the same day of the CSE review (Ex. G). The record shows that the parents have a history of participating in the CSE meetings, attempting to fully discuss their and cooperating in the CSE process. Nothing in the record suggests the contrary. Accordingly, the equities are in favor of the parents receiving reimbursement for six hours per week of the home program, as discussed above.

ORDER

It is ordered that:

1. The New York City Department of Education failed to offer the student, , a free and appropirate public education for the 2011-2012 school year.

2. The six hours of services provided to the student by , the home provider are appropriate.

3. The equities support the parent.

4. The New York City Department of Education shall reimburse the parents for six hours of services per week upon the presentation of proof of payment from July 1, 2011 to June 30, 2012. Dated: December 5, 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 THE RECORD ON SEPTEMBER 15, 2011

PARENT

B Notice Letter, 6/17/11, 2 pages C Letter Teacher, 6/24/11, 1 page D School Report, 5/25/11, 1 page E Progress Report, 6/11, 12 pages F Meeting Minutes, 6/8/11, 2 pages G FNR: Initial, 6/8/11, 1 pages

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 7/6/11, 3 pages 2 Due Process Response, 8/10/11, 4 pages 3 Acceptance Letter, 6/6/08, 1 page 4 Progress Report, 3/11, 5 pages 5 Progress Report, 3/11, 2 pages 6 Progress Report, 2/11, 2 pages 7 Physical Education Report, 3/11, 1 page 8 Update, 3/11, 1 page 9 IEP, 6/8/11, 17 pages 10 Notice of IEP Meeting, 6/2/11, 1 page

DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 27, 2011

PARENT

H Draft IEP from School, and Cover Letter, 6/3/11, 15 pages I Home Providers' Invoices, 7/5/11 to 8/11/11, 2 pages J Copies of Canceled Checks, 8/10/11 and 9/14/11, 2 pages K School Description of Student's Program, Undated, 2 pages L Daily Press Schedules, 9/3/11, 1 page M Class Profile for 2011-2012, Undated, 2 pages N School medical forms, 9/13/10, 5/2/11, 2 pages O School Progress Report, 11/10, 11 pages P School Progress Report, 3/11, 11 pages Q School Student Information Record, 9/13/10, 7 page R CSE Meeting Notes and Final Notice of Recommendation from 2010-2011 IEP

meeting, 5/17/10, 3 pages S School Weekly Notes for 2009-2010, and 2010-2011, with Dates Ranging from 9/13/11 to 6/20/11, 37 pages T Therapy Daily Notes, 7/5/11 to 8/11/11, 2 pages U School Document, Undated, 9 pages V School Session Notes, 7/16/10 to 8/13/10, 2 pages W Minutes of CSE Meeting, 5/18/09, 1 page X Findings and Recommendation, 5/18/09, 1 page Y Parent Letter, 5/18/09; CSE Review, 5/27/09, 2 pages Z Final Notice of Recommendation, 5/17/10, 2 pages AA Parent Letter, 5/17/10; CSE Review, 6/3/10, 2 pages BB Student Goal Sheet, 9/14/11 and 9/20/11, 2 pages CC Subpoena to Parent with Parent's Notes, Undated, 2 pages DD Parent E-mails, 4/8/11 to 8/9/11, 9 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 14, 2011

PARENT

EE Student goal sheets, 9/7/11 to 9/27/11, 11 pages FF Class Meeting Notes, Multiple Dates, 29 pages GG Lesson Plans, Multiple Dates, 25 pages

DEPARTMENT OF EDUCATION

11 Update, 5/25/11, 1 page 12 Progress Report, 6/11, 5 pages 13 Adaptive Physical Educationreport, 6/11, 1 page 14 Progress Report, 6/11, 2 pages 15 Progressreport, 6/11, 3 pages

IMPARTIAL HEARING OFFICER Entered to the Record NOVEMBER 28, 2011 I Parents’ Closing, Undated, 30 pages II District’s Closing, 11/15/11, 21 pages III E-Mails, 11/15/11 – 11/28/11, 7 pages

---

Footnotes

[1] In their complaint the parents allege that the failure of the CSE to incude parent training as a service that is provided also deprived of receiving a FAPE. The parent testified about the substantive training that is provided by . While the CSE should revise the IEP to reflect parent training and as required by the IDEA and New York state regulations (34 C.F.R. 300.34(c)(8); 8 NYCRR 200.13(d)), the failure to include it in the IEP, in this instance is a procedural violation that is not a deprivation of FAPE.

[3] The evidenc regarding provision of services is scant. The record contains the facts that he is the husband of , his educational credentials and the conclusory testimony that his work with the student is similar to that provided by Ms. . This evidence is insufficient to meet the parents' burden.