New York City Department of Education, Impartial Hearing Decision

0

FINDINGS OF FACT AND DECISION

Case Number: 116413

Student’s Name:

Date of Birth:

District: 2

Hearing Requested By: Parent

Dates of Hearing: July 8, 2008

September 3, 2008

November 21, 2008

December 4, 2008

December 5, 2008

March 5, 2009

March 12, 2009

March 13, 2009

Hearing Officer: Judith T. Kramer, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 8, 2008

Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 3, 2008

Student

Student

Parents

and — Student

DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 21, 2008

Student

Parents

DOE

School — DOE

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 4, 2008

Student

Student

Parents

DOE

DOE

(Via Telephone) — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 5, 2008

Student

Parents

DOE

, DOE

, ,

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 5, 2009

Student

Parents

School (Via Telephone) — Student

DOE

(Via Telephone) — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 12, 2009

Student

Parents

Student

Student

Student

Student

Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 13, 2009

Student

Parents

Student

and (Via Telephone) — Student

(Via Telephone) — Student

DOE

INTRODUCTION

On July 8, 2008, an impartial hearing was commenced pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415 regarding the issue of pendency during the proceeding regarding the alleged failure of the Department of Education (“DOE”) to provide a free appropriate public education (“FAPE”) to L.K. (“the child”) for 2008-2009 school year. The hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 10:00 a.m. The hearing on the merits of the underlying complaint regarding the denial of FAPE was continued on September 2, 2008, November 21, 2008, December 4, 2008, December 5, 2008, March 5, 2009, March 12, 2009, and March 13, 2009.

A list of exhibits that were admitted into evidence is attached to this decision.

BACKGROUND

The child who was previously diagnosed with - and classified as “ ” is currently classified as “ .” This classification is not in dispute. The child attended for the 2007-2008 school and for several years prior. She was in a Collaborative Team Teaching (“ ”) classroom and received various related services.

In June 2008, a Committee on Special Education (“CSE”) review meeting was held and an Individualized Education Program (“IEP”) was created which contained a recommendation that the child remain in a for the 2008-2009 school year and that she continue to receive various related services as modified on the June IEP. No particular school placement was recommended on the IEP. The parent’s disagreed with the recommendations on the IEP and placed their child in the School, a NPS approved by NYS, and procured additional -based for her some of which were provided under the pendency provisions of the IDEA and some were not. They are seeking reimbursement for the private school tuition as well as reimbursement for all of the home-based related services, which they have paid for during the 2008-2009 school year.

THE PARENT’S POSITION

The parent contends that the child was not provided an appropriate placement by the DOE for the 2008-2009 school year. He contends that the IEP process was flawed and the recommended placement was inappropriate. He seeks tuition reimbursement for his unilateral placement of the child at the School (“ ”) which he contends is an appropriate placement as well as for the continued private services of 7.5 hours of / ( ) , , therapy services, and services, and reimbursement for team meetings/parent trainings conducted outside of school; with all of these services being implemented by private s. He contends that the equities favor him.

THE DOE’S POSITION

The DOE contends that it provided the student with a FAPE and that the placement and related services offered was appropriate. Moreover, the DOE contends that neither the program nor the additional related services selected by the parents are appropriate for the student and that the equities do not favor the parent. The DOE contends that the parent’s request for reimbursement in all respects should be denied.

THE EVIDENCE PRESENTED

The child is classified as and impaired but has a prior classification of . As a grader at , she had been enrolled in and participated in a , to which the parent agreed.

On June 4, 2008, an Individualized Education Plan (“IEP”) was conferenced and developed for the child. A recording of the June 4 meeting was made by the parent and a transcript of that recording is in evidence as Parent’s Exhibit J. There were 18 people at the CSE review meeting. The meeting was between 1.5 and 2 hours. The meeting began with a discussion of the child’s current academic performance during which the child’s described as being on grade level in reading and progressing nicely in math. (Parent’s Ex. J-4, 5). Although an earlier evaluation conducted in February 2008 by yielded slightly different results (e.g. WRAT subtest was found to be at the 3.6 grade level) and parent was surprised by the statements in light of earlier mid-term report cards (Parent’s Ex. J-7), the testimony is supported by the child’s report cards dated June 2008 (Parent’s Ex. L) and by evaluation which was done after ’s in April 2008. found that the child’s reading and writing abilities were high average to superior and that her math skills were average. (Parent’s Ex. NN17).

The CSE team next discussed the child’s and needs, her OT requirements and her PT requirements. An attempt was made to discuss counseling but the discussion was taken off track. (Id. at p. 30-31) The team then began a discussion of whether was an appropriate program for the child. The parent’s stated that it was inappropriate primarily because the parent’s experts recommended that the child be placed in a small school setting for the and impaired. The parent also stated that was inappropriate for the child because the had refused to address the issue of alleged of the child there and that she was allegedly not successful in her grade . (Id. at 63, 69). At the meeting, the suggested that the parent could ask that the child attend a in another public school;, but the parent rejected that idea. (id.)

At the parent’s request, the team next addressed the issue of changing the child’s classification from to which the team agreed. (Id. at 72) The meeting ended after the CSE team made its recommendations as to and and the parent requested a copy of the IEP and the child’s math and ELA scores when they are released. (Id. at 76) The parent was given a copy of the completed IEP the next day. (Parent’s Ex. B-2)

The IEP indicates that child is classified as . (Parent’s Ex. D) The IEP recommended a program of with of OT for thirty minutes in a one-toone session twice a week, and a group of two once a week; and therapy for thirty minutes in a one-to-one session twice a week, and a group of three twice a week; PT for thirty minutes in a one-to-one session once a week; and counseling. All of the were to be delivered to the child during the school day by the public school related service .

The DOE presented several witnesses to support the CSE recommendation of as the LRE for the child and for the , which were recommended.

is a in the fourth grade at . (Tr. 581). She has a Masters degree from and has been working in for over 18 years. (Tr. at 581). The is handpicked for students who would benefit from the social emotional elements. (Tr. at 582). The students benefit from and from the small group instruction. (Tr. at 582). She described the benefits of role modeling for students with social emotional issues. (Tr. at 582). Ms. taught the child in the second grade and was familiar with her levels of functioning. (Tr. at 582).

Ms. looked at the DOE’s proposed 2008-2009 IEP for the child before the CSE meeting. (Tr. 639; See P-D). Ms. testified that the IEP was not ambiguous and that the IEP in question contained more information and better written than most the IEP’s she has read. She stated that all IEPs are vague, stating “it’s up to the individual to do her job or his job.” (Tr. 657- 660).

Ms. testified that the grade has - and students. of the receive of , and .

Ms. testified that the child would have been functionally grouped with the other students in the based on her academics and that she works on the deficit areas that the child struggles with. (Tr. at 598). She further testified that the other students in the for grade have the same social and emotional deficits that the child presented with. (Tr. at 606). She elaborated that she works on similar plans as the child had. (Tr. at 606). She testified that she works on similar goals and short term objectives and would be able to implement them and would also do an on-going assessment on the student, which would begin at the start of the year. (Tr. 606-612). Ms. described a , which she believed would help the child succeed academically and socially.

With regard to the issue of alleged “ ”, Ms. recalled one in the grade when the parents made her aware of the fact that the child was scratched in the auditorium. She drew a distinction between and a conflict where is a repeated attempt to humiliate.

is the at . She has been working as an OT since 1991 and has worked with children with and and issues. She is certified in . Ms. attended the child’s IEP meeting as an OT clinician. (Tr. 758). The meeting lasted more than one hour. Ms. called the parent for permission to work with the child in a group of three in May but the parent refused to permit it. The parent also refused to allow her to observe the child with the . In order to get a sense of the child, she conducted an informal observation of the child during class on the day before the IEP meeting. (Tr. 770, 771-72, 784). Ms. was asked to do the observation of the child by a member of the “ ” team. (Tr. 801). Ms. testified that the proposed OT goals were drafted before the meeting by an . The parents did not ask to discuss them at the IEP meeting and they were not discussed. (Tr. 762). Ms. serviced other children in The child’s classroom as an OT during the 2007-2008 school year, but would not be the child’s OT for the 2008-2009 school year. (Tr. 757). Ms. does not recall any student ever receiving more than 1.5 hours of OT at school. (Tr. 793) She has provided sessions that are more than 30 minutes and up to 45 minutes in duration at school. She is confident in her ability to implement the .

is one of the at . She testified that she has provided services for students with a myriad of classifications, including . Ms. has never worked with the child. (Tr. 1179). She opined that the recommended would have been appropriate to meet the child’s needs. She indicated that she would be able to implement , such as implementing self-regulation and sensory activities as part of a sensory diet, utilizing the “ ” , - , games with manipulative to improve fine-motor skills, assist with object manipulation for math, and paper pencil activities for visual perception issues. (Tr. 1159-1180). She delivers her services on a push-in or pullout basis, depending on the needs of the student. (Tr. 1155). She would schedule a phone conference or personal meetings with the parent to discuss home- and community-based goals. (Tr. 1188).

Ms. was of the opinion that child’s recommended OT mandate for the school-based support is appropriate. (Tr. 1180).

, the school-based from works with students in the . She is licensed in the State of New York, and has been a for six and a half years. (Tr.1103 ). She has experience working with students with various classifications, including . (Tr. 1104). She attended the child’s IEP meeting for 10-15 minutes, as well as the intervention plan meeting in March 2008. (Tr. 1109, 1138). She has not worked with the child, although she has observed the child once in the classroom and playing the yard on one occasion. (Tr. 1108, 1136-37).

In reviewing documentation from the private , Ms. indicated that the reports reflect that the child demonstrated a lot of strengths, in terms of being able to function in the school setting. Specifically to address the child’s issues with endurance, she testified that after conducting her own evaluation of the child, she could have the child participate in practice running in the yard with peers, jumping exercises, and other activities to increase agility and endurance. (Tr. 1122).

In reviewing the child’s IEP goals, Ms. opined that she could certainly meet the child’s needs, including goals for eye/hand coordination, upper limb coordination, endurance activities. (Tr. 1125). Her testimony indicates that PT in the could be met and that push in during yard time could be utilized for this child. She stated that the decreased had decreased endurance and that a session of more than 30 minutes could make the child fatigued.

, the and from testified as to the details of the school-based related service. (Tr. 538-571). She testified that she is familiar with the child from observing her within the classroom setting, and reviewing her reports. She further indicated that she was present for the IEP review that was held in June 2008. (Tr. 538).

She has never evaluated the child, although she tried to arrange a last minute meeting a few days before the IEP meeting. (Tr. 535-36). Ms. did review ’s report. (Tr. 535).

Based on her review of the documentation concerning the child, Ms. testified that she recommended that the child have three sessions of and therapy, 1:1, for 30 minutes, and two sessions, 1:3 for 30 minutes in a group of two. (Tr. 548). She opined the group sessions were appropriate to address the child’s pragmatic issues, as she has found students have the best experience in addressing pragmatic issues when conversing with their peers. (Tr. 548). In addressing the child’s receptive issues, such as understanding inferences and prediction, she would use keyword concepts and graphic organizing as well. (Tr. 548). And finally, Ms. testified that she works with students in the and stated “the s tend to be quite accustomed to doing comprehension checking to repeating direction, to breaking things down, to using a lot of the strategies that a typical student who receives and would need.” (Tr. at

556). She further elaborated, “In a room you have—the full range of ability, so there is always someone, you know, hopefully one step ahead of you or one step behind you so that you know a lot of the children find that they are able to build up their weaknesses and also use their strengths to help other students around them.” (Tr. at 557).

is a with a Masters degree in and from . (Tr. at 125). She is familiar with the child because she worked with other children in her class in the grade and gave group counseling sessions to the whole class. The child was present at those sessions and made meaningful contributions.

In addition, she intervened last year when the child was having a hard time after she a across the face. Ms. testified that the child wanted to apologize to the and tell her she did not mean it. When the parent came to the school she was to Ms. and denied that the ever happened. When was recommended for the child at that time, the parent rejected it. Ms. again recommended the child receive during her IEP meeting, however, the child’s parents again did not consent. (Tr. 152-53). Ms. does not remember the parents reasoning for . (Tr. 235). Ms. believes that the child’s parents because it was a “ ” service. Ms. admitted that if the child is pulled out of the classroom many times throughout the school day, it could be overwhelming for her. (Tr. 168-69). Ms. offered to do the counseling in the classroom to avoid pulling the child out. She further testified that at the June CSE meeting which she attended, other related services were offered to the or during but the were not receptive.

This year, Ms worked with certain students in the grade while working as a at . (Tr. at 130). She tried to group students together based on needs. Ms. testified that she is very familiar with the grade at and works them closely. (Tr. 160). Ms. stated that she felt a with the related service of counseling was appropriate for the child because “she has demonstrated a lot of throughout the year. And especially with the which is more specific and she thrives on that encouragement and positive reinforcement and I do believe it would be helpful for her to have a with her to continue to make that growth.” (Tr. at 162).

With regard to the issue of , she defined as a consistent and repetitious assertion of abusive power over another. If it occurs once, it is not . If it occurs twice it may be if it is intentional and done by the same person or group.

testified to the child’s social emotional needs in the . . has a Masters degree in cognitive development from and a from the Durner Clinic at Adelphi University. (Tr. at 353). .She is a certified school and a licensed . She stated that the parents did not permit her to observe or examine the child before the IEP meeting. The told her that the parents would not allow to speak to the child. testified as to the appropriateness of the for the child based upon other reports provided by the parents. She confirmed that the child could attend a at another school. She did not think that home based services were appropriate and that all could be adequately provided at the school either pushed in or pulled out. She stated the child is performing at grade level in all areas.

She opined about the that “It’s very enriched—there’s a lot of stimulation , stimulation all day long.” .She elaborated “the s are trained and skilled at breaking things down very carefully.. So when they present a new topic or a new concept or even if they are reviewing something new, they break it down into simple terms and steps. It is carefully skillfully taught instruction.” (Tr. at 366).

attended the child’s 2008-2009 IEP meeting, which she described as being tense. (Tr. 357, 359). She never made a written request to the parent to do an assessment or observation of the child but she testified that the parents refused to consent to an oral request to evaluate or observe the child. (Tr. 387, 397). Despite the failure to secure prior parental consent, the OT did observe the child informally before the IEP meeting. (Tr. 401).

The child’s parents requested her classification be changed from “ ” to “learning disabled,” which agreed with. (Tr. 362, 364; See P-D). testified that the child has difficulty staying on task and completing assignments, difficulty with social cues, but she is generally performing at grade level in all academic areas. (Tr. 367, 369).

attended the March 2008 intervention plan meeting. (Tr. 378). The was aimed at addressing the that prevented her from staying on task. (Tr.

381). This was never discussed at the IEP meeting, although it was briefly mentioned that the would be involved in implementing the plan. (Tr. 42728).

recommended that the child remain at because she believed that the child had “friends” at the school. ( Tr. 391, 434, 485). testified that was not discussed at the CSE meeting because there were other future opportunities to discuss it and the IEP meetings do not usually take more than a period. (Tr. 500-502). testified that one option if a child complains of request is for the parents to request to move their child to another school. (Tr. 492).

testified that school policy is that all related services provided in school are in 30-minute sessions in school but that as many sessions as needed could be placed upon the IEP. (Tr. 443-44, 475). testified that if the child was constantly of the classroom for related services, her opportunities for learning and modeling after her peers would be disrupted. (Tr. 442).

has been the at for three years. (Tr. 818-19). She testified that there is a zero tolerance policy for at . She stated that there is a handbook about school policy in that regard that was made available during the child’s year in second grade. She testified that many conflicts escalate but that they do not all amount to . She stated that all conflict are written up. She stated that she had one conversation with the child’s parents regarding . She contacted the parent when the child pulled another student’s hair, slapped and hit a . These were written up.

Ms. testified that there is a protocol to deal with in the classroom. The is to provide the first level of intervention. Ms. testified that she attempted to speak to the parents about their concerns regarding . She stated that she invited them into her office but the parents insisted upon speaking about it in front of the child. She said the child was agitated so she then asked them to leave. She said she felt threatened by the who was yelling, the child was shaking in a fit of rage. Ms. said she was going to call security. The parents no longer wished to speak to her but she responded to their letters by telephone. (Tr. 928)

Ms. claimed that she had only one conversation with the child’s parents about when someone stepped on the child’s toes, but she did not believe the child was the victim of . (Tr. 831, 845, 979). Ms. defines as “someone out of the blue…threatening another child, trying to coerce them to do something they feel uncomfortable with…and that child feels unsafe.” (Tr. 824). She does not consider a pattern of escalating conflict as . (Tr. 824). When the child’s toes were stepped on, Ms. testified “it was more of an inappropriate conflict between two children,” not , although she did agree that often involves conflict. (Tr. 896, 1055). Ms. does not recall any steps being taken to investigate the the child. (Tr. 852).

Ms. testified that she heard about an where two classmates called the child at home over the weekend to tease her. (Tr. 941). Ms. testified that she asked the child’s s to make copies of the reports, but she did not know whether they actually did so. No report was produced regarding this . (Tr. 950).

Ms. , who attended the IEP meeting, would not address the situation at that meeting because “I don’t think it’s an opportunity for us to be talking about situations that occurred in the classroom related to their child that not necessarily everyone else in the room can participate in.” (Tr. 877). Ms. would not permit discussion of the derogatory drawing of the child at the IEP meeting “because we were not there to discuss that.” (Tr. 963; P-MM).

Ms. testified that the IEP team cannot recommend a school placement, only defer it to the Central Based Support Team (“ ”). (Tr. 975-76, 978, 983). She did not recommend deferral to the CBST because Ms. felt was an appropriate LRE recommendation for the child and that the parent could request another school for the grade of they wished to. (Tr. 978, 983,984). Ms. testified that the model has proven successful even with the difficulties that the parents have has with the school. (Tr. 1083). When she offered to help them find another in another public school, the parents refused and told her that the child was going to go to a private school. (Tr.1085).

The parent testified that his decision to pursue a unilateral placement at , began when the child complained about at on almost a daily basis during the 2007-2008 school year, and such complaints occurred on a weekly basis during the second half of that school year. (Tr. 1706). He never saw any written reports from her s or other students, nor was the issue of discussed at her plan meeting in March 2008. (Tr. 1705-06). The child’s s reported the problems to him. (Tr. 1707). According to the parent, he tried to address the issue with the on more than one occasion, but she did not want to discuss it with him. (Tr. 1752).

The parent testified about a situation where the child wanted to bring dolls to school (for comfort purposes) because she felt insecure; however, at some point she was not permitted to have them in the classroom. (Tr. 1698-99, 1729; See also P-HH, P-II, PJJ). When the parents approached the about the doll situation and tried to discuss the , the ended the meeting abruptly and threatened to call security if they did not leave her office. (Tr. 1701). After that meeting, at which the child was present, according to the , the child had a lingering fear of the and kept questioning whether she would be going to jail. (Tr. 1701).

In advance of and at the IEP meeting, the parents requested all documents being used to evaluate the child. They were provided with only one document which was a “single piece of paper that was unsigned, undated and un-authored. We received no reports, no evaluations, nothing else.” (Tr. 1722; See also P-M, P-N, P-Q, P-T). The parents ever received any written response to their letters, only a few phone calls. (Tr. 1718, 1748-49). The parents were provided a draft at the March 2008 “ intervention plan” meeting, but they did not receive a final copy until they received the 2008-2009 IEP. (Tr. 1757-58).

The parent stated that there was no discussion of a 10- or 12-month program at the IEP meeting. The recommendations from the Center and which were submitted to the CSE by the parent were for a ten-month academic program. Those two recommendations also addressed the fact that in their opinion the child should receive her related services 52-weeks a year. The DOE recommended a 10-month academic program with related services for the child on the IEP that was sent to her parents. (Tr. 1799-1800; See P-D, P-NN-17, P-PP-4).

At the 2008-2009 IEP meeting, the parent testified that he tried to discuss what he described as the ongoing situation, including a derogatory drawing of the child by a classmate (P-MM). The and assistant determined that the issue should not be discussed at the IEP meeting. (Tr. 1702-03, 1734; See also P-J). The testified that the parents were told at the IEP meeting that another meeting would be scheduled to discuss that issue. That meeting did not occur. (Tr. 1703, Parent’s Ex. J).

The testified that there were of , and problems with the child at school during the 2007-2008 school year that were brought to the attention of the administration, but were not being addressed. (Tr. 1696, 1717, 1732-33; See P-I, P-HH, P-II, P-QQ, P-WW). The stated that the administration would argue with him and the mother that the issue even existed. (Tr. 1711). The parents felt they needed to explore other placement options. (Tr. 1696).

The parents considered moving her to a private placement at the second half of last year when the alleged issues were reported to be escalating. (Tr. 1711-12). They visited a number of non-public placement options in New York and New Jersey. (Tr. 1732).

The parents rejected the proposed placement at because of the alleged difficulties the child had when she attended the school for the two years prior. (Tr. 1771, 1773; See P-I). The parents sent the DOE a letter rejecting the placement and then they received the resolution meeting notice. (Tr. 1783; See P-I). The parents chose to place the child at .

The parent testified that is a and based program. (Tr. 1690; See P-TT). Its program is designed to address the child’s expressive, receptive and pragmatic deficits. (Tr. 1692). The 2008-2009 school year is the first year that the child has not had fulltime 1:1 support in the classroom. (Tr. 1707-08). This year, the child had a social worker/ at whom she met with on a daily basis. (Tr. 1689). While the child is making meaningful progress, there are still issues that need to be addressed, including her attention deficits. (Tr. 1691).

The parents have seen “remarkable progress with the child in all areas of her social and academic progress” at . (Tr. 1690). The said that she is a completely different child this year that she was last year at . (Tr. 1710). He

testified that the child has friends and is happy at school, the s listen to her, and she looks forward to going to class every day. (Tr. 1712). The believes that and the services it provides are appropriate and necessary for the child’s continued progress and education. (Tr. 1750). In the ’s opinion, the child continues to require a 12-month program to prevent regression. (Tr. 1800).

Maurine is a and . graduated from school in 1976 with her initial training focused on . (Tr. 1355-56). did the first evaluation of the child when the child was old and has evaluated her every year since. (Tr. 1356). ’s reports were admitted as exhibits P-FF and PPP.

In February 2008, saw the child for an evaluation. She testified that the child had continued to make progress and that her academic skills were “on target”. (Tr. 1363). She had a concerned about the status because the child did not seem as happy as she had in the past, she was more subdued. (Tr. 1364). testified that the child needed to get out of the school because of the conflict the was having with the school over the years. She felt this conflict was affecting the . (Tr.1375).

She observed the child in class for 90 minutes. (Tr. 1373). The child seemed to have “ and really needed her to…get her going much more than I had seen the year before.” (Tr. 1372). described the role of the during her observation as prompting the student to focus but did not describe her as offering any academic support. (Tr. 1369-72). was concerned that “the large public school classroom” was inappropriate for the child. (Tr. 1367). She did not define what she meant by large. She testified that the child was making progress in receptive and expressive processing, pragmatic and especially her social skills. (Tr. 1392)

She testified that the child had a best friend at and of school. (Tr. 1390). Over the spring break, the child and her were . (Tr.1390). She testified that as of February 2008, the parents had looked at least four private schools. (Tr. 1388).

testified that she learned that child was being “ ” in school. (Tr. 1358). She said that the child told her that the s were mean to her but she saw no evidence of that. (Tr. 1373-1374). did not see significant interaction between and her peers at during her observation. (Tr. 1372). She did not know of the at utilizing any positive support or reinforcement. (Tr. 1372-74, 1379). She testified that based upon report from the ’s, she believed that the child was not accepted by many of her classmates as she was often made fun of and some students would do things that were inappropriate to her. (Tr. 1416, P-P-1).

testified that the child would benefit from a school that focuses on learning disabilities as part of a team approach with trained to help her. (Tr. 140405). “The idea was for her not to have a with her in class for the rest of her educational career. The idea was to make her more independent.” (Tr. 1413). Further, the child needed to be in a “ ” than , and she needed to be surrounded by other students at her intellect level with similar disabilities. (Tr. 1404). She did not specifically opine that the was inappropriate for the child.

has noticed that since the child started attending , she has been excited about school. (Tr. 1376). Over the past year, the child has even increased her ability to skip and hop. (Tr. 1395-96). At , positive rewards are used for good . (Tr. 1379). When, for example, an issue came up between the child and another student at who called her a name on the , the school personnel addressed it immediately and the other student was spoken to by the . (Tr. 1396-97). would not characterize this as by that .

is the at . (Tr.1230) Ms. has a Bachelor’s Degree in and and a Master’s Degree in and School . Ms. is a licensed social worker. (Tr. 1225). has been open for 40 years and caters to students who have an average or better than average IQ but are or . (Tr. 1225, 1227; See PTT). The must be licensed and certified in New York State with a Master’s Degree. (Tr. 1228).

utilizes a “social skills” curriculum which varies based on the needs and problems in the classroom, and the academic curriculum is based on the New York State mandated curriculum. (Tr. 1238). All of the are assigned a school social worker. (Tr. 1242). Contact is constantly maintained between the parents and the student’s social worker and s. (Tr. 1252). Students at have a point card for that is broken down into various areas, including time, homework, , work and contract. (Tr. 1231). The points are used by the students to purchase rewards at the end of the week and can be used daily for reinforcements. (Tr. 1232). The goals are reviewed weekly, by s and student, and are developed based on what needs to be worked on. (Tr. 1231, 1240, 1253). Students can also lose points for , which impact what tangible items they are able to get. There is also a “quiet room” that is utilized for students who have in class. (Tr. 1270).

At the intake process, there is a discussion with both the student and the parents about how students should respect each other at the school, what the expectations are, and how the student should express when they feel or . (Tr. 1234). At , there is no for or and this is discussed with the students at the beginning of the year and is reviewed periodically. (Tr. 1232, 1235). If a situation does arise, the school will meet with the student to find out what happened, investigate the situation, then arrange a meeting between the students involved to discuss their feelings and how to change the situation. (Tr. 1234-35, 1268-69).

When the child first arrived at , she would get anxious and very apologetic when she believed she was acting poorly. The child has with self-regulation and reading social cues. (Tr. 1245). The child is very active in the contract process, giving her view on whether she feels she has made any progress on her own goals. (Tr. 1236). When the child masters the goals, the school personnel discuss with her other goals that may help her. (Tr. 1240).

Ms. testified that the child is progressing across the board. She is better able to focus on her schoolwork and the child knows the strategies to rely upon to learn. (Tr. 1251). The child is better able to manage herself instead of relying on s to tell her what to do next. (Tr. 1236). The child is better able to stay on task and not blurt out in class when inappropriate. (Tr. 1246). The child is showing leadership skills by working in the school store to assist other students to redeem their points. (Tr. 1237). Apparently unaware of the described by , Ms. testified that, to her knowledge, the child has not been involved in any or at , either as a victim or an aggressor. (Tr. 1271).

Ms. testified that the child is appropriately placed based on her academic skills and social profile. (Tr. 1252). There are still some that are being worked on, such as being off task, requiring prompts to stay focused, waiting, impulsive s and calling out. (Tr. 1251). If the child exhibits in the classroom, school personnel will use cues, prompts, modeling supports and marking her point card to get her back on track. (Tr. 1245, 1259).

is the child’s ABA . Ms. has her Bachelor’s Degree in Psychology and has been working at the Institute for two years. (Tr. 1420). Ms. started working with the child in August 2007. (Tr. 1463). Ms. was the program for child’s program in 2007-2008, and she provides program coordination between the school and home-based program for the 2008-2009 school year. (Tr. 1421, 1430). Ms. currently takes a “more minimal role, using five hours a month on average” to provide program coordination and consultation. (Tr. 1464). Ms. ’s report was admitted as exhibit P-W. The report indicates the areas which the is working on with the child. They include among other things: participation in social activities/conversation, responding to social cues, auditory comprehension, reading comprehension, comprehension of heavy math problems, increasing processing skills and writing fluently. (P-W-1)

Ms. visited the child at between four and five times during the 20072008 school year. (Tr. 1423-24). Ms. testified that the support in the classroom was “not good” and the s took on more of the “ ” role in the classroom. (Tr. 1424-25). Ms. recalled a situation where other students refused to give his/her spelling test to the child for peer grading and the had to intervene to get another student to work with the child. (Tr. 1454).

Ms. attended child’s 2008-2009 IEP meeting by telephone and prepared a progress report and proposed goals for the IEP. (Tr. 1422; See P-W). “It was a very tense meeting, and everyone kind of was trying to talk all at once, and from what I could tell, it was just ended.” (Tr. 1435). Ms. did not have the opportunity to speak. (Tr. 1436). Ms. also attended the March 2008 intervention plan meeting. She was never provided with a draft or final version of the . (Tr. 1433-34).

Ms. works with the grade and the school social worker at to address their concerns with ability to stay on track, discussing ideas that would help focus and motivate the child. (Tr. 1432). uses a point motivation system which allows students to earn up to 40 points per day. (Tr. 1436). This is a positive reinforcement system similar to what the Institute uses. (Tr. 1446-47).

is the child’s home-based . Ms. is a licensed New York State . (Tr. 1597; See also P-U). Ms. provided at- services to the child during the 2007-2008 and 2008-2009 school years. (Tr. 1599, 1604). Ms. has special training and experience in working with special needs students that helps her redirect and focus the child’s on school work. Ms. ’s report prepared in May 2008 was admitted as exhibit P-V. The report indicates that the child has made progress in , writing comprehension, organization, processing speed, fluency and many other areas. Id. The report states that the child is performing on grade level in math. Id.

Ms. works with the child on focusing her attention, homework, and social skills. (Tr. 1601-02, 1609). Ms. also works with the child on pragmatic skills, including starting, sustaining and ending conversations. (Tr. 1604-05). Ms. also works with the child on maintaining skills that are no longer being addressed in school. (Tr. 1638-39).

At , the child told Ms. that various students “ ” her . Tr. 1600; See P-V. The child is improving during 2008-2009 with the small, more nurturing environment at , but still requires 1:1 assistance outside of school but does not give any current reason why. (Tr. 1605, 1608, 1618, 1639). “With support, she’s making progress, both academic and social.” (Tr. 1611). This year, the child says she enjoys going to school, whereas before she did not enjoy actually being at school (Tr. 1604). Also, the child has a lot more play dates with classmates and conversations about school and the other students are positive rather than negative. (Tr. 1603, 1622).

was the child’s at during the 2007-2008 school year on Mondays, Wednesdays and Fridays. (Tr. 1469; See P-R). Ms. ’s reports were admitted as exhibits P-S and P-GG. In her report, she did not recommend that services be continued. (Parent’s Ex S) Ms. testified that there was a lot of negativity towards the child from her classmates at . (Tr. 1472). Ms.

observed situations where the child was pushed out of the way by other students when trying to approach a friend. (Tr. 1473-74). She also observed the child being tripped by another student, after which the reprimanded the child for “making a scene.” (Tr. 1477-78). Other students would also blame the child if items were missing or if they tripped or stumbled. (Tr. 1501-02).

Other students were permitted to have dolls or toys with them at all times; however, the child’s s decided the child should not have one because it was too distracting for her. (Tr. 1480; See P-JJ). Ms. testified that the school’s approach toward the dolls was inconsistent: “One day she had them in her desk, and the next day we say she can’t put them in her desk, and then the next day they are in her backpack, [and] a week from now you need to leave them home.” (Tr. 1495, 1528).

Ms. was present when the parents spoke to the about the “dolls”. (Tr. 1479-80). When the parents stated that the dolls made the child feel more secure, the “got the phone and said she was calling security and made us leave the building.” (Tr. 1482-83, 1530). Ms. did not consider this appropriate in front of the child, and after this , the child would repeatedly ask Ms. if security was coming and she was going to jail. (Tr. 1483, 1503, 1534).

At the 2008-2009 IEP meeting, the child’s parents tried to address the issue and the “actually slammed her hand on the table saying that was not going to be addressed and to move on with the meeting.” (Tr. 1485). At the IEP meeting, the child’s academics and strong points were discussed, but the team did not address deficits or weaknesses. (Tr. 1488). Ms. stated that she did provide input in the development. ( Tr. 1527).

Ms. does not feel that is appropriate for the child because it is “overstimulating,” the class was too large, and does not have the consistency or positive support that the child needs. (Tr. 1486). She did not offer an opinion regarding the appropriateness of the . Ms. was aware the parents were considering other placement options. (Tr. 1518)

was the child’s other at . Ms. has a Bachelor’s Degree in and a Master’s Degree in Applied Analysis. (Tr. 1549-50; P-DD). Ms. started working with the child in November 2007 on Tuesdays and Thursdays.

(Tr.1551- 1552) Academically, there were skills that the child was “okay” at and others where she required more one-on-one attention. (Tr. 1586). Ms. report prepared in May 2008 was admitted as exhibit P-EE. Her report did not recommend that the services be continued. Id.

When Ms. worked in the child’s classroom at , it was evident that the child did not have good relationships with the other students. (Tr. 1555). There was “a great deal of , a great deal of just children backing away from the child, not including her.” (Tr. 1555). Ms. testified that the child “looks” normal and academically functions at the same level as her typically developing peers. Tr. 1564. Ms. testified that she was concerned about the child’s self-esteem while attending because. The child “was everything…occurring around her from other students” and thought the child might need counseling. (Tr. 1587). She was apparently unaware that the parent rejected counseling as a related service that was recommended for the child.

Ms. testified that the s in the child’s classroom were not respectful of the child’s special needs. The child would be reprimanded by her s for raising her hand and not immediately speaking because she was collecting her thoughts, or calling out without raising her hand. (Tr. 1568). Ms. observed an where the other students refused to use a pencil that the child had touched. The ’s response was to label the pencil with the child’s names, which only reinforced the of the other students. (Tr. 1556-58). The child would often be sent to the “ removal” room which was more welcoming and friendlier for the child than her regular classroom. (Tr. 1562-63). Ms. also personally felt hostility from the s and administrators at . (Tr. 1555-56). Ms. helped develop the child’s Intervention Plan, but she never saw it being implemented at school. (Tr. 1566-67).

The child’s classroom at had nearly 30 students, two s, an assistant, two paraprofessionals, and other students with 1:1 aides. (Tr. 1569). Ms. recommended that the child go to another placement but did not testify that was inappropriate for the child. (Tr. 1569). Ms. was aware that the child’s parents were looking into the possibility of a school placement. (Tr. 1583).

Ms. attended the child’s 2008-2009 IEP meeting and testified that she had never seen an administration act towards parents the way this administration did towards the parents and herself. (Tr. 1561, 1573-74). When the issue was brought up at the IEP meeting, the would not discuss the issue. (Tr. 1560, P-J).

has a Bachelor’s Degree in Psychology, a Master’s Degree in Counseling Psychology, and a Master’s Degree in Special Education, with a secondary certificate in general education through grade. Tr. 1294. Ms. worked with the child as a substitute for four days when the regular classroom was also absent . (Tr. 1294, P-LL-3). Ms. notes were admitted as exhibit P-LL. Ms. defines as “stigmatizing a child or…causing her to feel depressed or less than other children.” (Tr. 1299). She described an “ ” in which a drawing was made by “ ”, another student, who was told to throw it away. (P-MM) There was no evidence that the picture was ever shown to the child or to anyone else. The took it out of the trash and kept it to show the parents. She did not report it to the administration. Ms. noticed that when the child was being teased and , she would complain that her stomach was bothering her this was not noted in her report. (Tr. 1323).

On another , Ms. observed a the child with ketchup on his hands, telling the child it was “ ” and then he child. (Tr. 1305). Ms. observed a group of try and lure the child into stepping on they had put on the ground. (Tr. 1306). Ms. observed a group of the child. (Tr. 1320). Ms. also observed the other students to use a pencil that had been used by the child. (Tr. 1320). There was no written reports which she prepared regarding these . It is unclear when they occurred. Ms. did not state that she reported their to the regular classroom or the administration.

is the child’s . has a in and . (Tr. 261). He has evaluated and worked with the child for approximately years. (Tr. 262). evaluates the child at least once per year. (Tr. 307-08). ’s report which was prepared in April and May of 2008 was admitted as exhibit P-KK.

When he first began working with the child, she presented with marked receptive and expressive impairment and she met the criteria for - . (Tr. 264, 265). Today, would classify the child as a child with a -based learning impairment, although she still has difficulty with “inferencing” and discourse. (Tr. 266). Over the years, has noticed the child has made progress with her skills. (Tr. 273). “Her vocabulary is increasing. Her sentence structure is increasing.” (Tr. 273). However, the child has consistently struggled with “higher level types of abilities” and she is not yet on an age appropriate level. (Tr. 274-75).

attended the child’s 2008-2009 IEP meeting on June 4, 2008. (Tr. 265). The IEP team agreed to change. The child’s administrative classification from “ ” to “ .” (Tr. 278). The child’s parents attempted to discuss her placement at and the situation at the IEP meeting, but the team would not address the issue. (Tr. 272-73, 278, P-J).

recalls speaking with the child’s parents about issues as far back as second grade. (Tr. 270). testified that children with impairments are often victims of because they cannot comprehend higher level , such as jokes and sarcasm. (Tr. 267).

testified that a special education classroom, such as the child’s classroom at , is in his opinion, less restrictive than a room with a 1:1 . (Tr. 279). The environment with approximately 26 other students is too overwhelming for the child. (Tr. 288). “For her [the child] to be in a smaller class without an aide in a situation that recognized her difficulties…would actually enable her…to be more comfortable, be on her own more, more self reliant, [and] learn not to be dependent on adults for scaffolding and processing.” (Tr. 280). also recommends the child continue receiving an additional three hours per week of home-based and therapy. (Tr. 288). He did not give any reason why additional therapy needs to be home-based.

did not agree that the peer modeling offered in a would be a benefit. He testified that “As…typically appropriate peers , the social demands become greater, [and] the differences [between the child and her typical peers] become greater… Peer modeling can actually become not advantageous, but a difficulty.” (Tr. 309). He stated for example, that although the child has been in a classroom with typically developing peers for years, this has not been sufficient to help her overcome her deficits. (Tr. 309).

is the -based . Ms. is a and and she has her Bachelor’s Degree in English with a Master’s Degree in Pathology. (Tr. 1644-45). Ms. is a “ ” through the DOE. (Tr. 1645).

Ms. currently works with the child three hours per week. (Tr. 1645). The child also receives two 30-minute sessions in-school at , one individual session and one group session. (Tr. 1647). Ms. works with the child on conversational , pragmatic skills, listening and writing skills, question response, and social skills. (Tr. 1648). Ms. has noticed significant progress in the child’s socialization and pragmatic , and believes that the additional “definitely benefits her.” (Tr. 1648, 1650, 1651). Ms. continues to feel that the child requires the additional to address her . (Tr. 1647).

Dana is the child’s home-based OT Ms. has a Bachelor’s Degree, and she is a licensed and registered OT who has been working since 2001. (Tr. 1657; See PX). Ms. worked with the child five hours per week during the 2007-2008 school year in her home. (Tr. 1657-58). Based on the child’s improvement, it was recommended that the child’s home-based OT sessions be reduced to three hours per week for the 20082009 school year. (Tr. 1658, 1660). Ms. currently works with the child on Thursdays and Fridays. (Tr. 1666). The child also receives two 30-minute sessions per week of OT in school. (Tr. 1663). Ms. opined that the child still requires three hours per week of home-based OT to address her deficits. (Tr. 1663). Ms. ’s progress report which was prepared in May 2008 was admitted as exhibit P-Y. The report indicates that the child has continued to make progress throughout the school year and as such recommends a reduction on OT services.

Ms. utilizes the “Handwriting ” with the child. (Tr. 1667). Ms. also works with the child on her visual-perceptual skills, working with the child on puzzles. (Tr. 1670). This year Ms. is also working with the child on her organizational skills by having all the child’s school subjects separated in a binder and using a homework planner. (Tr. 1670-71). Ms. works with the child on ADL skills which for most of them, the child is able to manage independently at this time. (Tr. 1679, P-Y-2). The child’s s at , work on the child’s transitioning issues. (Tr. 1677).

The child has made significant progress this year. See P-Y. “She’s a completely different child. She’s so happy and she’s very motivated to work with me.” (Tr. 1672). The child’s handwriting skills have improved, and is now legible. (Tr. 1661-62). The “Handwriting Without Tears” program has proven beneficial, helping the child with the spacing and sizing of letters, as well as staying within the lines. (Tr. 1668).

Ms. has not spoken with any school personnel at because the child is not receiving any OT from the school (Tr. 1680). Ms. was invited to attend the child’s 2008-2009 IEP meeting, but was unable to attend because of a scheduling conflict. (Tr. 1682-83).

CONCLUSIONS OF LAW

Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes special education and related services specially designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written IEP. 20 U.S.C. §1401(8).

A FAPE is offered to a child with a disability when "a) the board of education complies with the procedural requirements set forth in the IDEA, and b) the IEP developed by its CSE through the procedures is reasonably calculated to enable the student to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982); See Application of the New York City Department of Education, No. 06-037.

This case involves only the 2008-2009 school year.

With regard to the first obligation above, the DOE has met its obligation to comply with the procedural requirements of the IDEA. The evidence shows that the CSE held a lengthy meeting – almost two hours -- attended by eighteen people either in person or over the telephone in which all of the appropriate individuals participated. The IEP that was created was developed with the input of the parents and with input from some of the student’s outside s who prepared the goals. The parent complains that not all of the goals were discussed at the meeting and some were vague. However, the testimony of the other participants as well as the transcript of the meeting provided by the parents suggests that all of the issues related to the IEP that were of concern to the parent were adequately discussed.

In addition, Ms. testified that the IEP created for the child contained more information than most that she had read and, though vague, was not unlike all of the others she had read. She stated that the IEPs are interpreted with more particularity by the who are familiar with the child.

The parent further complains that he did not receive the IEP after the meeting. He did however, receive it the next day. There is no requirement that he be given a copy of the IEP after the meeting particularly when after the discussion took place, the child’s classification was going to be changed and thus the IEP had to be modified.

The parent’s complaint regarding the lack of discussion of the is also not compelling. The parents had attended a lengthy meeting in March 2008 regarding the at which their concerns were discussed and the was modified to incorporate them. They further assert that there was no FBA performed prior to the creation of the . This is not supported by the evidence. testified that she created a FBA. (Tr. 508) The evidence further indicated that the prepared FBA was utilized to construct an appropriate which was contained within the IEP. (Tr. 509)

It is true that the parent was not given an opportunity to discuss the issue of “ ” and specifically, Exhibit MM 1 , the drawing made of the child, but the made it clear that there was no time to discuss that issue and that discussion of that issue should take place at a separate meeting. In this case, the issue of is really a separate issue since it does not go to the heart of whether the and the related services recommended on the IEP were appropriate. At best, it places in question the location of where such educational programs and should be provided to the child. However, when given the opportunity to discuss that issue, the parent declined to discuss an alternative public school placement.

1 With regard to the drawing, the evidence does not establish that the child ever saw it or, if she did, who showed it to her. In fact, the evidence shows that consistent with the school’s policy, the in the classroom, in an effort to thwart any effort by another child to make fun of the told the child who created the picture to which she did. (Parent’s Ex. LL-3) If the child never saw the drawing, it could not have effected her. Thus, no finding can be made as to that picture that it constituted . In addition, some witness testified that can affect a child’s academic performance, but the record here does not establish that this child’s academic performance ed. When opined about the toxic environment at she was very clear that it effected the child’s mental health status. Moreover, and such result is not unique to a child with and not a topic that would influence the content of an IEP except for a recommendation which was made and was by the parent.

It is also true that the IEP did not reflect their wishes that the child should be deferred to CBST for private school placement but that goes to the second obligation above and not the propriety of how the meeting was conducted or how the IEP was created.

Finally, the parent complains that they were not provided with documents prior to the IEP meeting. However, from the evidence presented, there were no DOE documents identified as being withheld from the parents which were relied upon by the CSE team. The DOE witnesses testified that they reviewed the evaluations and the reports prepared by the evaluators selected by the parent as well and the reports submitted by the child’s own . The parents had all of these documents. The DOE witness testified that they did not evaluate or formally observe the child themselves because the parent refused to consent to them doing such evaluations and observations. To the extent that the IEP reflects there were assessments done of the child by the for purpose of the drafting of the IEP, it appears that they were based upon assessments and “performance assessment task” completed on or shortly before June 4th, the day of the meeting. It is not clear that any documents existed or were created by the s in the performance of these assessments and the parent never asked that they be produced by the DOE at the hearing. In addition, the results of these assessments were no different from the results obtained by the parent’s own evaluators and thus, did not have a material impact upon the recommendations made in the IEP. Thus, the impact of the failure of the DOE to produce such documents, if any exist, was de minimus and not a denial of FAPE.

As mentioned above, the second obligation of the DOE to establish that it provided the child with a FAPE is that “the IEP developed by its CSE through the procedures is reasonably calculated to enable the student to receive educational benefits." The DOE has also met this obligation.

The DOE recommended that the child attend a ten-month with related services to be provided in school as follows: OT twice a week for thirty minutes 1:1, once a week for thirty minutes 2:1; PT once a week for thirty minutes 1:1; and twice a week for thirty minutes 1:1 and three times a week for thirty minutes 3:1; as well as counseling and a full time .

The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130); in that that it is likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]). The educational program must also place the student in the least restrictive environment (Carlisle Area School v. Scott P., 62 F.3d 520, 535 (3rd Cir. 1995).

The evidence establishes that the child has done very well academically in the ten-month with related services. All of the witness and reports show that she was performing at grade level in every area and has been making consistent progress in social skills as well. Despite the testimony from that he did not think that was the least restrictive environment, it is well established that a placement in a special school for learning disabled students is more restrictive than a placement. And, while the parent has the right to place their child in a more restrictive environment, the DOE may not disregard the LRE requirement.

In fact, none of the parent’s witnesses stated that the itself was inappropriate. For example, reported that all of the child’s skills were on target but that the child would benefit from a small school for the learning disabled. Of this there is little doubt, but it is not DOE’s obligation to provide it when has proven to be a program where the child has made significant and consistent progress. Packer testified that the child should attend a different school other than because the school’s toxic environment created by the ’s conflict with the school administration was having an effect on the child’s “mental health”. This is far different from stating that the in general with related services was not offering or could not offer the child an “educational benefit” and that it was likely to produce progress and not regression.

The witness presented by the DOE who spoke to the issue testified that was an appropriate placement for the child. They testified that the child had made significant strides in a in the past and was functioning on grade level in all areas. The evidence shows that the 4th grade had only 22 student with a ratio of 9:1 special education students to each and was smaller than the grade . Indeed, the one witness who functioned as the child’s classroom the previous year, testified that would provide that child with a program which she believed would help the child succeed academically and socially.

Having found that the recommended was appropriate, the next issue is whether the IEP contained the proper levels of related services. The evidence presented with regard to OT establishes that the child has made significant gains and that her can be performed independently. Thus, the issue of whether some had to be addressed at home is moot. Her own OT testified that the child’s OT services should be reduced. While the amount of OT mandated in the IEP is less than her private recommends, the OT s who testified for the DOE stated that the goals, which were prepared by the , could be met in school within the time frames recommended on the IEP. Moreover, the DOE OT utilizes the same program— “handwriting ”-- as the outside . While every child may benefit from additional , it is not the obligation of the DOE to provide the child with an optimum level of services. Having heard the testimony of the child’s OT that she could receive a benefit even her OT services were reduced, the IEP recommendation for OT will provide a benefit to the child and thus, are appropriate.

The evidence presented with regard to and also establishes that the IEP recommendations for and five times a week will produce a benefit to the child. testimony that the child would not benefit from group sessions because at some point exposure to peers may not have a positive effect, is too speculative to be given much weight. The child is only nine and as much of the testimony seems to indicate seems to enjoy being around her peers this year.

As to PT, it is not being given at all at and the evidence shows that she is not receiving any at all. A parent who rejects a service cannot now complain that the amount of the service is inappropriate.

As to , the testimony of Ms. was that the child should receive counseling. The parent disagreed. There is no other evidence to suggest that Ms. ’s recommendation was inappropriate. Indeed, based upon the testimony of Ms. that he child had gotten extremely upset in school on at least one occasion when she had an altercation with a and the testimony of that the child was withdrawn by the end of the school year, counseling was an appropriate recommendation.

Finally, the issue of a must be addressed. The evidence provided by each of the in-school was that the child no longer needed an in-school . There is no dispute about that. As to the parent’s contention that the child continues to require a at home, the evidence is not that clear. The -based supervisor, testified that the child was doing “ok” at school academically in 2007-2008. Ms. , the home-based said that she now works with the child primarily on social issues. The evidence shows that the child has improved in all domains including development social skills, thus the IEP program provided by the CSE was sufficient to provide the child with growth in these areas. Moreover, in 2007-2008 Ms worked with the child on academics primarily focusing upon her based issues which are the issues that are being specifically addressed at . Since the parent made it clear at the IEP meeting that he was not sending his child to public school and he unilaterally chose to place the child at , a special school to address learning issues, there is no reason to assume that the child continues to require home-based services or that the DOE should pay for such services to help her with her learning issues. Accordingly, the CSE recommendation to exclude after school home-based services on the IEP was appropriate.

The SRO has consistently held that the DOE is not responsible for after school services provided in the student’s home if, in fact, the DOE’s program offers the student an appropriate educational program during the day. See Application of the Board of Education of the City School District of the City of White Plains, Appeal No. 96-81 (finding that it would be “speculative to assume” that the student would not have otherwise achieved progress absent extra ABA, despite the fact the student had previously received extra ABA over and above that which had been provided at school); See also Application of a Child with a Disability, Appeal No. 96-29 Application of the Board of Education of the Sackets Harbor Central School District, Appeal No. 99-8; Application of a Child with a Disability, Appeal No. 02-and Application of a Child with a Disability, Appeal No. 03-036. Where, as here, both the parent and the stated that services were not needed in school, it is hard to justify providing such at .

On the issue of whether the related services, if all delivered at school, would be too disruptive to the child because of the sheer number of sessions mandated, the evidence shows that the child was offered the option of having some sessions on a pushin basis as well as delivery of some services such as OT during gym and yard. This option would have reduced the number of pull-outs to a reasonable number and minimized the amount of regular classroom time missed by the child.

Finally, with regard to the issue of whether the should be provided on a twelve month basis, it is well settled that for services to be provided for 52 weeks, there must be proof that the child would substantial regression if they were not. No objective evidence of was offered. For example, what were the child’s skills like after or ? Did the have to bring her back up to speed after such a school break? There was no testimony as to this from anyone. Indeed, the testimony was uniformly that the child was making consistent progress in all domains. Accordingly, there is no basis to find that the child would substantial regression if she did not receive her over the summer.

Assuming, the DOE is found not to have met its burden that it provided the student with a FAPE, the next question is whether the parent presented evidence to meet her burden to demonstrate that is an appropriate placement. (Frank G., 459 F. 3d. at 364; M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000], cert denied, 532 U.S. 942, 121 S. Ct. 1403, 149 L.Ed.2d 346 [2001]; Application of a Child with a Disability, Appeal No. 02-111; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parent must show that the private school placement met the student’s special education needs (Burlington, 471 U.S. at 370; M.S., 231 F.3d at 104-05; Application of a Child with a Disability, Appeal No. 02-111).

On this issue the evidence is mixed. There is no doubt and the evidence supports a finding that the student has made progress in her and academics at this year. She is apparently very happy there. However, program at does not provide the child with any , or with the appropriate number of hours of OT or in a group as mandated by the child’s IEP. There is no credible evidence to suggest that the recommendation on the IEP with regard to these recommendations were erroneous.

The only evidence offered on this point is that the parent has chosen to supplement the OT and therapy with outside and expects the DOE to cover the cost and has chosen to withhold and from the child altogether. While the parent is free to make this choice at his own expense, it does not make an appropriate placement.

As a matter of law, a parent’s unilateral placement of a student in a school that does not provide the necessary services renders the placement inappropriate. See Application of the Dept. of Educ., Appeal No. 08-025 (holding that unilateral placement is inappropriate where it did not offer as recommended by the neuropsychological evaluation and IEP); Application of a Student with a Disability, Appeal No. 08-119 (unilateral placement inappropriate because it does “not provide the level of related services identified as appropriate to meet [the student’s] needs”); Application of the Board of Education of the City School District of the City of Long Beach, Appeal No. 07-097 (finding that “[s]upplementation of the regular education services [at the unilateral placement] by does not support a finding” that the services at the unilateral placement are appropriate, and denying the parents’ request for reimbursement); (same). See also, e.g., Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660 (S.D.N.Y. 2005) (where it is determined that a student needs , the parents’ placement in a school that does not offer such services as a matter of course – but rather only at extra expense and without vouching for the credentials of the party – is not appropriate and does not warrant tuition reimbursement). For all of the foregoing reasons, the parent has not sustained her burden of proving that the unilateral placement at is appropriate. Therefore, the parent’s claim for tuition reimbursement must be denied.

Finally, the parent has not established that the equities tip in his favor. It is clear that the parent intended to send the student to even before the CSE meeting was held. The reasons he gave for the placement were not supported by the expert testimony or the other evidence. He kept stating that and was inappropriate for the child. He took issue with of the to discuss at the IEP meeting and her refusal among other things to allow the child to bring a doll to class. While there is no question that was, in words of , a toxic environment for the child for a variety of reasons, the to consider alternate placements was unreasonable. Everyone who attended the CSE meeting and who testified stated that the CSE meeting was contentious and the atmosphere was tense. The transcript bears this out and the spoke to the . Accordingly, the equities do not favor the parent and his request for tuition reimbursement is denied in all respects.

Ordered that the parent’s request for tuition reimbursement for School for 2008-2009 school year is denied and that their request for reimbursement for additional home-based services is denied. Dated: July 21, 2009

____________________________

JUDITH T. KRAMER, ESQ.

Impartial Hearing Officer

JTK:jm

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.

EXHIBIT LIST

Parent’s Exhibits

DATE DOCUMENTS PAGES

P-A June 20, 2008 Demand for Due Process 6 Pages

P-B June 25, 2008 New York City Department of Education 3 Pages

Answer By:

P-C June 11, 2008 Decision of the State Review 23 Pages

P-D June 4, 2008 New York City Department of Education 37 Pages

IEP

P-E February 21, 2008 Addendum to the Pages

By: ,

P-F & : Annual 5 Pages

Goals & Short-Term Objectives, 08/09SY

P-G Therapy: Annual Goals & Short 5 Pages

Term Objective, 08/09SY

P-H Academic Annual Goals & Short-Term 12 Pages

Objectives, 08/09SY

P-I June 6, 2008 Letter to Region 9 from the Parents 4 Pages

P-J June 4, 2008 Annual IEP Meeting Transcript 81 Pages

P-K Winter 2008 Grade Progress Report & 3 Pages

Progress Report with ’s Comments Attached

By: , & ,

& the of the

[ ]

P-L Spring 2008 Grade Progress Report & Specialist 3 Pages

Progress Report with Comments Attached

By: , & ,

& the of the

[ ]

DATE DOCUMENTS PAGES

P-M May 29, 2008 Letter to from the Parents 1 Page

P-N May 28, 2008 Letter to from the Parents 2 Pages

P-O May 28, 2008 Letter to the Parents from 1 Page

P-P May 28, 2008 and Progress Note 2 Pages

By: ,

[Full Potential ]

P-Q May 27, 2008 Letter to from the Parents 2 Pages

P-R Resume & Public School Certificate 2 Pages

For: ,

P-S May 23, 2008 : Student Progress Report 1 Page

By: ,

[ , ]

P-T May 23, 2008 Letter to from the Parents 2 Pages

P-U Resume for , , Ed. 2 Pages

P-V May 23, 2008 Educational Progress Report 4 Pages

By: , .

P-W May 22, 2008 Progress Report 2 Pages

By: , /

[ Institute]

P-X Registration Certificate for , 1 Page

P-Y May 22, 2008 Progress Report 2 Pages

By: ,

P-Z Resume for , 2 Pages

P-AA May 21, 2008 Therapy Progress Report 8 Pages

With Annual Goals & Short-Term Objectives

Sheet Attached

By: , ,

DATE DOCUMENTS PAGES

P-BB Resume for , 1 Page

P-CC May 21, 2008 & Report 3 Pages

By: , ,

P-DD Resume for , , 2 Pages

P-EE May 20, 2008 Educational Progress Report 2 Pages

By: , ,

[ ]

P-FF May 15, 2008 Report 3 Pages

P-GG May 9, 2008 Notes 2 Pages

By: ,

P-HH May 8, 2008 Letter to from the Parents 2 Pages

P-II May 7, 2008 Letter to from the Parents 3 Pages

With The child’s Letter Attached

P-JJ May 7, 2008 Letter from Ms. & Ms. 1 Page

To the Parents

P-KK April & May 2008 Evaluation 7 Pages

P-LL April 18, 2008 Notes 3 Pages

By: ,

P-MM April 18, 2008 Derogatory Caricature of ‘Lixe’ Drawn During 1 Page

Class Time

By: A Class 3-209 Student

P-NN April 17, 2008 Evaluation with Test Scores 17 Pages

Attached

By: , &

,

P-OO April 1, 2008 Art Class Report 1 Page

[92 Street Y]

DATE DOCUMENTS PAGES

P-PP February 18, 2008 Neuro- Evaluation 4 Pages

P-QQ February 5, 2008 Letter to from the Parents 3 Pages

P-RR Feb. thru June 2008 Invoices, Invoice Breakdown 12 Pages

& Proof of Payment

P-SS July thru Aug. 2008 PT, & OT Invoices, Invoice Breakdown 9 Pages

& Proof of Payment

P-TT Program Description of The School 2 Pages

P-UU 2008/2009 SY Enrollment Contract & Proof 2 Pages

1st Payment

[The School]

P-VV July-Sept. 2008 The School Calendar 3 Pages

P-WW November 29, 2007 Letter to from the Parents 1 Page

P-XX November 1, 2007 Psychological Consultation with Appendix 8 Pages

Sheet Attached By: ,

Psy.D.,

P-YY December 2008 The School Progress Report 12 Pages

By: Nicole Brown, Homeroom

P-ZZ NYC DOE-Respect for All, Rules & Policies 1 Page

P-AAA September 3, 2008 NYC DOE- - Initiatives to Stop 4 Pages

& Bias-Related in City’s

Public Schools

P-BBB July 2008 thru Invoice Breakdown, Invoices & Proof 25 Pages

January 2009 of Payments

P-CCC Documents Provided by DOE in response to 137

Pages

our Request