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

Dates of Hearing: July 1, 2010

December 1, 2010

January 11, 2011

January 20, 2011

March 9, 2011

March 23, 2011

May 17, 2011

May 18, 2011

May 31, 2011

July 20, 2011

August 4, 2011

Actual Date of Record Close: October 12, 2011

Hearing Officer: Judith Schneider, Esq.

Corrected: November 4, 2011

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 1, 2010

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 1, 2010

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 11, 2011

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 20, 2011

Attorney — Student

Parents

General Education Teacher (via telephone) — Student

Attorney — DOE

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

Attorney — Student

/, (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 23, 2011

Attorney — Student

Mother (via telephone) — Student

CSE Psychologist (via telephone) — Student

Attorney — DOE

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

Attorney — Student

(via telephone) — Student

Paraprofessional (via telephone) — Student

Special Education Teacher (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 18, 2011

Attorney — Student

Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 31, 2011

Attorney — Student

(via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 20, 2011

Attorney — Student

(via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 4, 2011

Attorney — Student

Attorney — DOE

On July 1, 2010, December 1, 2010, January 11, 2011, January 20, 2011, March 9, — DOE

2011, March 23, 2011, May 17, 2011, May 18, 2011, May 31, 2011, July 20, 2011, — DOE

August 4, 2011, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415[f], and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

The proceeding was initiated at the request of the parent by correspondence dated June 25, 2010. (Ex. D)^[1] An Interim Order on Pendency was issued on July 1, 2010. (Ex. I)

The parties moved to extend the compliance date on various occasions in light of various considerations including the parties’ desire to evaluate how the student functioned in a school age general education/ICT program, anticipated testimony, the scheduling of witnesses and submission of evidence and closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted.

The current compliance date is November 4, 2011. The record closed on October 12, 2011, upon my receipt of all post-closing memoranda.^[2] Lists of persons who appeared and documents in evidence are appended.

BACKGROUND and POSITIONS OF THE PARTIES

At the commencement of the 2010-2011 school year the student was about years old. Her disability classification was . (Ex. E) That classification is not in dispute.

The student received services and had received services pursuant to a CPSE IEP during the 2007-2008 school year. The CSE convened on April 16, 2008, to develop a program for the 2008-2009 school year. Its recommendation was rejected by the parents who filed an impartial hearing request. At the hearing that followed, the DOE agreed to the parent’s request for 35 hours per week of to be provided at a general education pre-school selected by the parent and at home and also agreed to certain related services. With regard to the sole remaining issue, the rate for the services of the provider, the impartial hearing officer ordered the DOE to fund providers selected by the parent at a rate not to exceed $126 per hour. (Ex. C)

A subsequent impartial hearing request concerning the 2009-2010 school year was resolved by settlement (“the settlement agreement”) after a pendency order in that matter continuing the 35 weekly hours and related services had been issued. (Exs. A,

Y) The DOE agreed, among other things, to reimburse the parent for full tuition for the 2009-2010 school year including the 2009 summer session at the (“ ”), the parent’s unilateral placement, and provide special education teacher services with an approach for 35 hours per week at a rate not to exceed $126 for 46 weeks. (Ex. Y) The student had been receiving related services as recommended in the May 13, 2009 IEP. (Exs. D, E, U) The related services were provided through RSAs. (Ex. D-4) The parent asserts that that the DOE has failed to reimburse her pursuant to the settlement agreement for various payments for which claims have been made. (Ex. IV)

On May 27 and June 7, 2010, the CSE reconvened to develop an IEP for the 2010-2011 school year (“the IEP”). The student, although chronologically a second grade student, would be entering the first grade. The CSE stated that her instructional levels in reading and writing ranged from grade and in math from grade, based upon teacher estimates. Among other things: It was reported that she had made progress within the her general education setting, improvements in her were noted and it was stated that she should access the general education curriculum with modifications. Academic management needs were , ( , .” (Ex. E)

The CSE reported with regard to performance that, among other things, her delays were primarily in the areas of , with she had become more over the past year, tended to engage in academically appropriate activities in the classroom, still required direct support for interacting with peers, required one –to one assistance to follow classroom instructions and close supervision due to her inability to recognize dangerous situations. It was noted that consistency in her environment and access to more socially competent individuals enhances her . The CSE concluded that the student required highly intensive supervision, listed a Para in her needs and also specified that the student’s responses to interventions and reinforcers would be monitored and adjusted to maintain desirable changes. A was not developed. (Ex. E)

With regard to , the CSE, among other things, noted various abilities and limited abilities in and and people, resulting in bumping into or tripping over stationery and moving objects/ people. (Ex. E)

The CSE recommended a 12 month program: a general education program with SETSS three periods per day, ) in the classroom, direct services, a management para and related services ( (“ (“ ”)); summer services SETSS 5 days per week , 3 periods per day, separate location, direct services and the same related services. (Exs. E, M-1) The parent made a post parent’s post-CSE review inquiry seeking more information with regard to the summer program. , the case manager in this matter, clarified that the student would be provided with SETSS, and . (T. 353-356, Ex. M ,) .

By letter dated June 18, 2010, the parent informed the CSE that she intended to keep the student in for the summer session and to continue to provide the student with services but accepted the related services and services provided in the June 7, 2010 IEP and would seek reimbursement or direct payment from the DOE for expenses including transportation. (Ex. P)

The parent’s impartial hearing request was made by letter dated June 25, 2010 from her counsel. (Ex. D) A pendency order was issued on July 1, 2010, which provided at school and home, at a rate of $126 per hour, and related services. (Ex. I)

The student attended during the summer. She was enrolled in the recommended community school in September. With the consent of the parent, she was placed in an ICT class as a general education student. (T. 125, 602) The IEP was not changed. The record is unclear as to the DOE position with regard to whether ICT is a general education program. (T. 434-435) The student has received the recommended related services through RSAs and has received 35 hours of teacher services principally at school with at home hours when sessions were required. (T. 695) The IEP specified that 5 hours of at home discrete trial teaching was to be provided from July 1, 2010 but the DOE has refused to fund that and it has not been provided.

The parent asserts in this matter that the DOE failed to provide the student with a FAPE, for the 2010-2011 school year, implemented various illegal blanket policies that, among other things, discriminated against the student in violation of Section 504 of the Rehabilitation Act, improperly failed to implement the IEP with regard to the homebased component of that IEP and failed to fully implement the settlement agreement. The parent seeks an order providing an ICT class for the 2010-2011 school year, 35 hours per week of 1:1 special education teacher services to support the student in school, 10 hours per week of home-based 1:1 services, and the related services recommended by the June 7, 2010 IEP. The parent requests reimbursement of $835 for tuition for the summer program at Kids Only (or, in the alternative, compensatory education for the lack of denial of appropriate extended school year services), a “bank” of make-up home-based services equivalent to what she should have had but did not receive, reimbursement for any expenses incurred for transportation to/from related services, authorizations for independent educational evaluations and an order directing the DOE to reimburse the parent pursuant to the settlement agreement for services provided in the 2009-2010 school year. (Ex. IV)

The appropriateness of the related services provided by the CSE in its IEP is not in dispute and the parent acknowledges that they have been provided through RSAs. (T.

717) The DOE conceded that the public school placement was not an issue (T. 34) and did not contest the parent’s claim that school and parent agreed that an was the appropriate placement for this student. The placement in a community school is therefore not in dispute.

The DOE elected not to defend its program recommendation in this matter and conceded that it failed to provide a free, appropriate public education. (T. 32-34, Ex. V-2) However, with regard to the issues remaining it asserts that the student was not entitled to in school special education teacher services, was not entitled to any instruction and therefore not entitled to a “bank” for services not provided, has no entitlement to reimbursement at for the Summer 2009 program at because it was not an appropriate placement, has no entitlement to independent educational evaluations and has not established that transportation reimbursement is warranted. Further, the DOE claims that the IHO in this matter lacks jurisdiction to consider the implementation of the settlement agreement. (Ex. V)

CASES PRESENTED

The DOE presented no witnesses and submitted no documents for admission into evidence.

The parent presented the testimony of the student’s two SEITs during the 20102011 school year the student’s community school classroom staff (the general education teacher, the special education teacher and the paraprofessional) for the 2010-2011 school year, the teachers aide in the student’s 2009-2010 and Summer 2010 programs at , the mother, and the CSE case manager at the time of the May-June 2010 CSE review.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The DOE has conceded that the inclusion program in which the student had been placed for the 2010-2011 school year was appropriate. Accordingly, my consideration of the student’s program is limited to determining what program supports were necessary to enable the student to make appropriate educational gains in that program. Claims that the placement would “perhaps” not have been made if the student required the supports claimed by the parent to be necessary (Ex. V) are not relevant in the circumstances here where the placement is conceded. Further, I note that no testimony has been submitted by the DOE to support what is admittedly speculation.

With regard to my consideration of the issues in this matter, I find that testimony of each of the witnesses credible in that the facts stated were truthful and the opinions stated reflected their views. Further, I note that the DOE has presented no testimonial or documentary evidence and that therefore the factual claims made by the witnesses are uncontradicted and therefore not rebutted.

A) Teacher

It is undisputed that the student had been receiving special education teacher support in conjunction with her general education program at during 2009-2010 and that that continued pursuant to pendency. The parent asserts that support at that level for the student’s participation in a general education class from a special education teacher qualified to meet the student’s needs was necessary in order to make appropriate gains in 2010-2011 and, further, in consequence of the DOE’s concessions in this matter, the DOE was required to provide it for the 2010-2011 school year. To the extent that the parents rely on decisions involving appropriate services during the pendency of an action, I find that claim meritless. The mere fact that services were provided during the pendency of an action, whether without objection from the DOE or pursuant to order after challenge, does not establish entitlement to the services in a final order after an IEP has been challenged. To the extent that the parent is relying on a claim that the service is the “last agreed upon placement” and must be deemed to be appropriate in view of the DOE posture in this matter, I note that the settlement agreement is not a basis for determination as to the last agreed upon placement. (Ex. Y) Reviewing this matter most favorably for the parent, the appropriate program to consider is the 2009-2009 school year program. At the hearing after challenge to the DOE recommendation for that year, the DOE agreed to provide that service. (Ex. C) However, an student’s needs may change over two years and this is particularly the case when a very young student has been receiving intensive ABA services. Accordingly, I consider whether the based hours was appropriate.

The DOE has the burden of production and persuasion when its IEP is challenged Education Law §4404[1][c]. The parent has the burden only when payment is sought for a unilateral placement in a private school or the unilateral obtaining of services. Application of a Student with a Disability, Appeal No. 11-053. The parent’s request for additional services or increased frequencies of services provided is not a basis for shifting the burden of proof to the parent. Id. Further, the DOE.s claim that because it has elected to stand mute or because an element of a program selected by the parent has not previously been received by the student the burden should shift to the parent is meritless.

With regard to the I find that the evidence shows: The student had particular deficits in the areas of . (Ex. E). When she started public school in September 2010 her required every . (T. 132-134, 165-166) The CSE mandated a variety of academic management needs including , but did not provide a . (Ex. E) The CSE also specified that the student’s responses to interventions and reinforcers should be monitored and adjusted. (Ex. E) I note with regard to any expectation that community school staff would be able to meet these needs that there was no indication that there were any other students with in the school or any persons with training, the general education teacher provided was not special education certified and there is no indication in the that she had any experience with or training in techniques (T. 122, 151), the special education teacher did not testify as to any experience with children or training with regard to for them, the paraprofessional assigned had no , never preciously worked with a student with and did not work directly with this student until January 2011 and then only for limited periods and with a teacher present because she was not ready to be alone with the student. (T. 146-147, 163, 320-321, 323, 576, 579, 582, 583) DOE classroom staff as well as the teachers believe that a teacher was necessary to enable the student to perform in the classroom provided and keep her behavior under control. (T. 168, 322, 324, 583) Further, even had the burden been on the parent, that burden has been met.

The CSE placed an student with significant deficits in a general education placement that the DOE concedes is appropriate. It was required to provide supports necessary for her to make appropriate educational gains in the placement. I conclude that the requested teacher support was necessary. The rate of pay previously provided in order to obtain the staff with necessary skills was requested in the hearing request and that was not disputed by the DOE in this proceeding.

The DOE’s objections based on EI/CPSE programs and practices and “least restrictive environment” (“LRE”) concerns are not persuasive. (Ex. V) Providing the level of service a particular student needs in a CSE recommended placement is not precluded merely because it is programmatic in EI and/or CPSE programs. Further, LRE constraints require the educating of a child with a disability to the greatest extent appropriate together with their non-disabled peers with the use of supplementary aids and services. P. v. Newington Bd. of Ed., 546 F. 3d 111 (2d Cir. 2008) The student here was in a general education class and the presence of a teacher facilitated interactions with those students and her ability to make appropriate educational gains, precisely what is required by LRE considerations.

B) and Compensatory Education

The parent claims that since the CSE had ordered services and the parent specifically accepted those services, the DOE is required to provide them regardless of any dispute over the level of service during the program. The DOE claims that the services were provided in consideration of the entirety of the instructional program it proposed and that since the parent has rejected the school based portion of the program with regard to support it may not now assert a right to just the other portion of the program. However, the DOE has provided no support for its claim concerning the intent of the CSE. The DOE could have called witnesses from the CSE with regard to the purpose of the after-school hours but did not. Further, the CSE meeting was recorded. (Ex. AA) Evidence in the record indicates that the CSE provided the services to provide support for transitioning for school and homework as well as . (T. 1276) It is noteworthy with regard to that that CSE members opined, in connection with the parent’s request for more after school hours, that its proposed school day program provided more support than was requested by the parent. (T. 1259, 1260) This lends further support to a conclusion that the recommendation was based upon a CSE opinion that after school services were necessary for this student regardless of the school day program. Nevertheless, the cases cited by the parent do not support her claim that solely because of acceptance of a portion of a program the DOE is obligated as a matter of law to provide it. Both Application of a Student with a Disability, Appeal No. 09-0125, and Application of a Student with a Disability, Appeal No. 10-112, involved situations in which students were statutorily entitled during the pendency of a challenge to a subsequent IEP to certain services which had constituted the “then current placement”. In the instant matter, the five hours of was not previously provided and the parent had no statutory entitlement to receive it.

I therefore consider whether the requested home-based service- 10 hours per week- is appropriate. The evidence shows that although certain matters were worked on during the school day the witnesses testified that the student needed additional support with regard to , . (T. 277-279, 704-706, 709-711, 726-733) The parent testified that if the student and . (T. 733, 736, 748, 795-797) In addition, the student engages in and . (T. 737-740)

The DOE does not dispute the testimony herein which I conclude demonstrates substantial deficits. Rather it asserts that home based services were not necessary to enable the student to make appropriate educational gains in school and that generalization outside school was not the responsibility of the DOE. The DOE relies upon a single and cites no support in this for its claim that addressing and the other deficits described above that are manifested when the student is not receiving the constant support that her provides are not an educational responsibility. Moreover, I conclude that the services were necessary for appropriate school gains in view of this student’s placement. I note that the CSE itself determined that at least homework, transition and ADL support was necessary for this student. Further, no testimony concerning the limitation to five hours has been presented and accordingly there was no opportunity to probe the basis for the CSE’s determination that only five hours was to be provided and no rebuttal of the opinion that 10 hours was necessary. This student was placed in a general education class in which she was expected to participate in and keep up with and other class activities notwithstanding her significant deficits. Further, it was determined by the CSE that . It is essential with regard to that that she be able to with and be accepted by typically . The manifestation of and the described, among others, are an obvious constraint on acceptance and the manifestation of them could reasonably be expected to result in . Accordingly, the elimination of certain behaviors is necessary to ensure that the student will have a reduced need for classroom support in the future.

In the foregoing circumstances, I conclude that the evidence shows that 10 hours of as described on the IEP were appropriate. Although the burden was on the DOE in this matter, as discussed above, I find that the even had the burden been on the parent it would have been met.

The parent seeks compensatory education for all services the student should have received but did not. Compensatory education is a prospective equitable remedy. See Student X v. New York City Department of Education. 2008 WL 4890440 at 24 (E.D. N.Y.) I note that the DOE has not asserted that I am legally precluded from ordering that here. I conclude that the student is entitled to five hours per week, in accordance with the DOE school calendar for a 12 month program, from the period July 1, 2010 through June 30, 2011 to make up for home based services she did not receive during the 2010-2011 school year. With regard to the limitation to , I note that the CSE recommended five hours, that the student’s program as delivered left little time for additional services (T. 785-793) and that the provision of services after school was requested by the parent although not adopted by the CSE. The rate of pay previously provided in order to obtain the staff with necessary skills was requested in the hearing request and that rate was not disputed by the DOE in this proceeding.

D) SUMMER PROGRAM

The parent unilaterally placed the student for the summer 2009 and seeks reimbursement for tuition for that part of the program. The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). The DOE has conceded Prong 1.

The burden of proof with regard to the appropriateness of the program for which reimbursement is sought (Prong 2) is on the parent. Education Law 4404[1][c] The parent must establish that the program she selected-intensive services coupled with a summer general education program was appropriate. The DOE does not dispute that a summer program was necessary for this student and summer service was placed on the IEP. As discussed above, the DOE’s claim that the requested program is a program and/or does not satisfy LRE requirements is not persuasive. Moreover, a parent is not held as strictly as a district to the LRE requirements in determining whether a unilateral placement was appropriate.

The DOE also claims that was not appropriate because its program was not tailored to meet the student’s unique needs. (Ex. V ) However, the DOE has conceded that a general education/ICT class placement for the 2010-2011 school year was appropriate so long as there were sufficient supports. The program was a general education program and the parent has provided the additional support of 35 hours per week from a special education teacher. The CSE concluded with regard to the 2010-2011 school year that the student’s principal problems were , that she required intensive supervision and that she would benefit and with regard to communication from interaction with more . (Ex. E) The general education program at , I conclude, met those needs. I find it not necessary to decide whether is officially a day care, pre- ” as described by the DOE psychologist who observed the student there. (Ex, H) Further, the CSE delineated academic-management needs which the special education teacher was able to provide. With regard to the specifics of the program, I note that the teachers aide testified that the program included instruction in the morning and, further, that the student’s teachers removed her when the other children were napping for additional individual instruction. Further, the CSE acknowledged that the student had made progress during the 2009-2010 school year in the same program and it is noteworthy that the CSE, which had previously recommended a program, believed after the progress made at with a SEIT that a general education program going forward was appropriate. elements of the parent’s program as discussed above. I conclude that the parent’s has established that that she is entitled to tuition reimbursement. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

With regard to Prong 3, I conclude that equitable considerations do not bar or limit reimbursement in this matter. Although the DOE has suggested that the participation of this parent’s counsel at the CSE meeting gives rise to a claim for limiting or barring reimbursement in this matter, I find that that claim lacks merit. (Ex. V) There was considerable discussion as to the parent’s requests and many were rejected.

E) INDEPENDENT EDUCATIONAL EVALUATIONS

In her hearing request the parent sought independent educational evaluations (“IEEs”) including but not limited to a l or evaluation and an evaluation by a (Ex. D-10) The parent during the course of this proceeding further limited her request to evaluations by a and a t and also requested an (“ ”) evaluation but stated that the evaluation could be done by the DOE, (T. 754) . It was acknowledged that no prior requests for those evaluations or an IEE had been made. (T. 765-767)

In the request the parent asserted in connection with the 2008-2009 school year review, deficiencies in DOE evaluations (D-4), particularly in “the report” but did not indicate the specific evaluation or whether it occurred prior to or during the 2008-2009 school year (D-4 nos. 14 and 15), made no claims specifically concerning evaluations with regard to the 2009-2010 school year review (D-4 no. 18), and with regard to the 2010-2011 school year claimed that the DOE was on notice of objections because it had known that the parent had previously objected to the prior evaluation and had not conducted retests or offered an IEE in response. (D-5 no. 23) There has been no claim that the parent identified evaluations with which she disagreed at the May-June 2010 CSE meeting. (See Exs. IV,VI) Nor were requests for IEEs made at that time. Rather the request for IEEs was made for the first time in the instant hearing request.

Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. A disagreement with an IEP does not constitute a disagreement with an evaluation triggering DOE action under 8 NYCRR 200.5[g]. Application of a Student with a Disability, Appeal No, 11-001. Nor. I conclude, does a general claim that a parent disagreed with unspecified evaluations over several school years and CSE reviews. I note that the district is not permitted to require that the parent specify the nature of her disagreement. However, that is not what is at issue here. In the instant matter I find that the parent’s claims with regard to her disagreement were insufficiently specific to identify the evaluations she disagreed with and therefore in this proceeding the DOE was not required demonstrate pursuant to 8 NYCRR 200.5[g] that its evaluations were satisfactory or provide the parent with an IEE. Further, based upon the record in this matter I find no basis for concluding that the independent evaluations requested should be ordered even in the absence of a 8 NYCRR 200.5[g] requirement.

F) SECTION 504 CLAIMS

In view of the foregoing findings with regard to the program, I do not discuss the parent’s Rehabilitation Act Section 504 claims.

G) SETTLEMENT AGREEMENT

The DOE has not disputed that it entered into a settlement agreement for the 2009-2010 school year.^[3] The dispute between the parties concerns the documentation submitted by the parent to support her claim for reimbursement. (Ex. IV) There has been no claim that consideration of this dispute is necessary to address the parties’ claims with regard to the 2010-2011 school year. The DOE asserts that I lack jurisdiction to determine the parent’s claim that the settlement has not been fully implemented. I agree.

New York State regulations specifying the parameters of the impartial hearing process state that a parent or school district may file a due process complaint on matters relating to the identification, evaluation or educational placement of a student with a disability, or suspected of having a disability, or the provision of a free appropriate public education to such student. 8 NYCRR 200.5(i) New York State regulations “… do not confer jurisdiction to enforce settlement agreements upon impartial hearing officers.” Application of the Board of Education of the Colton- Pierrepont Central School District, Appeal No. 07-043. The SRO’s determination as to that matter was affirmed in pertinent part by the Second Circuit in an unpublished decision, H.C. v. Colton-Pierrepont Central School District, 341 F. App’x 687 (2d Cir 2009).

Accordingly, I do not consider the parent’s exhaustion requirement claims. (Ex. II, III)

H) TRANSPORTATION REIMBURSEMENT

The parent has not asserted that the DOE failed to reimburse the parent for transportation she provided to and from the related services and has submitted no evidence with regard to expenses. Further, the parent, by counsel, acknowledged that the RSAs provided for the related services include authorization for transportation. (T. 88) Accordingly, I find no controversy and no basis for inclusion of transportation in an order at this time.

I) 52 WEEK SERVICES

The evidence shows that the student has been receiving services in accordance with the DOE school calendar for a 12 month program but for the delivery of some services during weekends in that period. (T. 720, Ex. Y) In her closing memorandum the parent requested that services be delivered for 52 weeks. The parent did not assert that claim in her hearing request. (See Ex. d-10 at e) Further, in extended discussions concerning the parent’s position that claim was not asserted. (See T. 74-89) Accordingly, I do not consider it..

ORDER

1. For the 2010-2011 school year commencing September 1, 2010 the student was entitled to attend an class in a community school.

2. The student was entitled to receive for the 2010-2011 school year, commencing July 1, 2010, in a 12 month program consistent with the DOE school calendar:

a) 35 hours per week of services in the class, with make-ups for missed services to be provided at home, at a rate not to exceed $126 per hour.

b) 10 hours per week of discrete trial learning at a rate not to exceed $126 per hour.

3. The student is entitled to home based discrete trial learning at a rate not to exceed $126 per hour as compensatory education for services missed at the rate of 5 hours per week for the 2010-2011 school year commencing July 1, 2010 in a 12 month program consistent with the DOE school calendar. The service shall be provided at the option of the parent but must be utilized prior to October 31, 2012.

4. The DOE shall immediately reimburse the parent $835 for tuition for the Summer 2010 program at upon submission of evidence of payment. Dated: October 28, 2011 Corrected: November 4, 2011

________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTS ENTERED INTO THE RECORD

A Interim Order of IHO , Case No. , 7/21/09, 4 Parent pgs.

B Excerpt Amended IEP, 10/20/08, 1 pg. Parent

C Findings of Fact and Decision of , Case No. , Parent

1020/08, 22 pgs.

D Impartial Hearing Request, 6/25/10, 11 pgs. Parent

E IEP, 6/7/10, 38 pgs. Parent

F Admission Denied

G Admission Denied

H Classroom Observation, 5/13/10, 3 pgs. Parent

I Progress Report, 5/8/10, 2 pgs. Parent

J SEIT Report of , undated, 2 pgs. Parent

K Progress Report, 4/12/10, 3 pgs. Parent

L Progress Rept, 4/13/10, 4 pgs. Parent

M FNR (2 versions), 6/11/10, 2 pgs. Parent

N Grade 1 Report Cards, 1/9/10 & 3/14/10, 21 pgs. Parent

O Sample of student’s work, 2010-2011, 10 pgs. Parent

P Ten Day Notice, 6/18/10, 1 pgs. Parent

Q Letter from , 5/12/09, 1 pg. Parent

R Social History, 5/12/10, 2 pgs. Parent

S CSE Meeting Notice, 5/27/10, 2 pgs. Parent

T Admission Denied

U IEP, 5/13/09, 22 pgs. Parent

V FNR, 8/3/09, 1 pg. Parent

W Teacher Report for , 2010, 2 pgs. Parent

X Report, 1/7/08 and 1/15/08, 9 pgs. Parent

Y Stipulation of Settlement regarding 2009-2010 Parent school year

Z Admission Denied

AA USB of CSE meeting, 5/27/10 and 6/7/10 Parent

I Interim Order on Pendency of , 7/1/10, 4 pgs. Impartial Hearing Officer

II Parent’s Memo on Exhaustion, 2/2/11, 3 pgs. Impartial Hearing Officer

III DOE response to Parent’s Memo on Exhaustion, Impartial Hearing Officer

2/18/11, 5 pgs.

IV Parent Closing Memorandum Impartial Hearing Officer

V DOE Closing Memorandum Impartial Hearing Officer

VI Parent Reply to DOE Closing Memo Impartial Hearing Officer

VII DOE Reply to DOE Closing Memo Impartial Hearing Officer

Footnotes

[1] I was available to conduct a hearing within 14 days of the end of resolution. After numerous prior telephone conferences and e-mails, on August 10, 2010, the initial hearing was scheduled for September 29, 2010, immediately rescheduled to October 1, 2010, the first mutually available date for the parties and the hearing officer. (Tr. 17-19) The October 1, 2010 hearing was thereafter adjourned to enable the DOE to investigate the appropriateness of the student’s placement in an inclusion program in view of the student’s significant deficits and the school’s lack of experience with regard to them. (T. 19, 22) In a hearing on December 1, 2010, the parties informed me that DOE concerns regarding an inclusion program had been resolved, that a settlement was essentially agreed to but that additional time was required in view of the numerous issues. (T. 23) Subsequent assurances with regard to imminent settlement, including that New York Controller approval had been received, were thereafter made. (T. 30) At a hearing on January 11, 2011, however, I was informed that the parties were not at that time able to conclude a settlement and that the DOE would not be defending its program recommendation. (T. 32-33) The first witness testified on January 20, 2011.

[2] The dates for the filing of closing submissions discussed at the hearing (T. 1297) were subsequently extended at the request of the parties.

[3] I have overruled the objection of the DOE and admitted the settlement agreement into evidence as Exhibit Y. It is relevant to the history of this matter and was referenced in testimony concerning matters other than the dispute about implementation. (T. 342) Documents concerning the parent’s expenses and payments were marked for identification only but were not admitted into evidence.