Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

THE STATE EDUCATION DEPARTMENT /

IMPARTIAL HEARING OFFICER

In the Matter of the Impartial Hearing Requested By WS and HE. 0/b/o their Disabled Child,

| DECISION OF

- against - IMPARTIAL HEARING

OFFICER

rhe II01 isi

INTRODUCTION

This Impartial Hearing was brought on by a Due Process Complaint Notice dated June 29, 2012 on behalf of a Disabled Child, || [S.D. Ex. 2]'. J.G., born in [Redacted text], and his Parents reside within the TE schoo! District (“District”). The Demand, on behalf of a child ih EE :18¢¢cc that this preschool student with a disability was denied a Free Appropriate Public Education (“FAPE”) for the 2012-2013 school year, including the summer of 2012. The Parents of I brought their claims under the Individuals With Disabilities Education Improvement Act (“IDEIA”), its implementing Regulations, the New York State Education Law and the Commissioner of Education Regulations at Part 200 as well as No Child Left Behind Act (“NCLB”) and §504 of the Rehabilitation Act (“§504”).”

ISSUE

The District’s Committee on Pre-School Special Education (““CPSE”) proposed that | be placed in a Center Based program to promote interaction for his 2012-2013 preschool year

* References herein will be as follows: Transcript = Tr.; School District Exhibits =S.D. Ex __; Parents’ Exhibits = P. Ex _-| * This Hearing Officer was assigned this case pursuant to the JDEIA and Article 89 of N.Y.S. Education Law and has nojurisdiction under NCLB or §504. Additionally, no claims of discrimination were made or the subject of testimony. supplemented by some home based 1:1 Applied Behavior Analysis 6 oD therapy and related services whereas the Parents desire that their child primarily receive 1:1 home based Hi therapy and Special Education Itinerant Teacher (“SEIT”) assistance in a typical preschool. At issue is the Parents’ demand for reimbursement. In a nutshell, the Parents bring their claims under the Burlington/Carter/Connors Test seeking reimbursement for their unilateral educational placement. Additionally the Parents sought a pendency ruling, however, the District in its

Answer dated July 12, 2012 agreed that ij was entitled to services pursuant to 8 N.Y.C.R

§200.5(m), services consistent with those he received as a result of a December 2011 Individualized Educational Program (“IEP”). [S.D. Ex 7]. As such, it is unnecessary for me to issue a pendency determination or rule on summer programming.

The Parents’ Complaint argues that, both procedurally and substantively, || was denied an offer of FAPE for the 2012-2013 school year. The Parents allege the following: e The District’s CSE met without a Parent member and without securing a proper waiver executed by the Parents; e Certain goals and objectives in the proffered [EP were developed outside the IEP process without appropriate [EP team members; e The IEP fails to indicate reports upon which it was based; e The District offered inconsistent recommendations and inappropriate changes to i. offered program; The County Representative mislead mi: Parents regarding State guidelines and programming offers;

Gs IEP fails to adequately describe i; present levels of performance in all areas, strengths and needs; The District proposed providing [J a 1:1 teaching assistant (“TA”) rather than the 1:1 SEIT which the Parents believe requires; The Parents believe that [J should attend a typical preschool, on a part-time basis, rather than the special education center based program proposed by the District; The Parents believe that the District failed to proffer appropriate assistive technology services; The Parents believe that the District failed to consider reports and recommendations of their providers and their experts; The Parents allege that the District failed to undertake a Functional Behavioral Assessment (“FBA”) or develop and recommend a Behavior Intervention Plan (“BIP”); The Parents allege that the District failed to treat the Parents as fuil and equal IEP team members; The Parents do not believe that the proffered program provided the traditional _ program that he needs; That the proposed goals and objectives were not sufficient, measurable or appropriate for GE and That the proposed program would not be appropriate for him. [S.D. Ex 2]. Specifically, the Parents are seeking an Order that the District “reimburse” a: Parents for and/or otherwise insure that I receive the following: (a) 40 hours per week of 1:1 ; | services (to be delivered in | home, community and school environments); (b) placement in a typical preschool; (c) 3 x 30 minutes per week of 1: | TE therapy services; (d) team meetings and program coordination/supervision; and, (e) at least one hour per week of individual Parent counseling and training for Mr. & Mrs. Hl The Parents request that all services be provided on a 12-month (52 weeks) basis. The Parents seek either reimbursement for programming that they have obtained for | | or prospective payment for such programs should they be unable to afford same. [S.D. Ex 2].

The District denied most every allegation set forth by the Parents, defended its proposed Center Based program and alleged Affirmative Defenses including: e That the program recommended for fill for the 2012-2013 school year would provide him an JEP with services that met his needs; e That the challenged IEP met all procedural and substantive requirements; e That there were no procedural inaccuracies which impeded the student’s right to FAPE, significantly impeded the Parents opportunity to participate in the decision making process regarding the provision of FAPE, or caused the deprivation of educational benefits and, accordingly, no procedural basis upon which the IHO could find that the student did not receive FAPE; e That the challenged IEP, when reviewed in its entirety, is procedurally and substantively appropriate; e That claims prior to July 2, 2010 are time barred; e That the equities favor the District; e That services sought by the Parents would result in an unduly restrictive environment to meet the student’s needs; e That the services sought by the Parents are inappropriate to mei 's needs; and, e That there is no jurisdiction to award prospective funding or direct funding. [S.D. Ex J].

Having failed to resolve the matters in a Resolution Session, an Impartial Hearing was held over

6 days resulting in a 1,469 page transcript. Sixty Two (62) Exhibits were admitted into evidence.

STATEMENT OF FACTS

| | is a four year old child born in [Redacted text]. [7r. 1144 S.D. Ex 2]. The Parents first noticed that he was not typically developing at about age 18 months when his speech was thought by them to be delayed. [Tr. 1/44]. He was evaluated when the family lived in Virginia for the City’s Early Intervention Plan. [7r. [144]. Thereafter, received some services through the Parents’ locale. [Tr. 1145]. In May 2010, the family moved to New York and i was referred for Early Intervention (“EI”) Services in Suffolk County. [7r. 1/46]. Initially, || received po Therapy, 90 minutes per session, 12 sessions per week. [7r. 1/47]. The family received 1 hour of Parent training each week, [Jr 1147]. By the time || transferred to CPSE Services he was receiving approximately 28 % hours of BR Therapy per week in his home. [7r. 55, 1/47]. Somewhere around December 2010, when J G. was 2 years 9 months old he was evaluated by im |

BE schoo! District (“District”) upon his transmission to EI to CPSE eligibility.” (Tr.

1148]. In December 2010, 7 was diagnosed with autism. [7r. 1/49]. He was evaluated, on behalf of the District, by an independent contractor TE ervices, LLC. [S.D. Ex. 12]. i evaluator found s scores consistent with the diagnosis of pe [S.D. Ex.

12\. A P| Evaluation, a Social History, a EE © valuation, a Behavioral Evaluation, an M[(herapy Evaluation and a Medical Summary were _ conducted at that time. [S.D. Exs. 12, 13, 14, 15, 16, 17 and 18]. The Parents and the District had a CPSE meeting in June 2011 and CPSE services began for | | in September of 2011. [77.

1150].

Expressive language is | biggest deficit. [7r. 1/53]. When attempting to communicate, will frequently utilize an I-Pad. [7r. 1154-1155]. Early on in his eligibility for services, yj was seen by Dr. L.C., who is the Director of the EE 2 <p2tment at ii po [Tr. 52]. Dr. C. foundlilll to be on the severe end of the I (77. 59].

He found ff} to also have cognitive delays and speech/language delays, particularly in the expressive speech area. [Tr. 59]. | | presents with significant expressive language limitations. [Tr. 63]. P| engages in self-stimulatory behaviors including self-injurious head banging and the inability to maintain eye contact. [7r. 60]. a: has provided J with SEIT

, Notwithstanding CPSE eligibility, J.G. received services through El until the beginning of the 2011-2012 school year. services. [J7r. 64]. The agency also provided him, and continues to provide him, EE Services. [Tr. 64].

P| continued to address language skills and gross motor skills during the 2011-2012 school year and i. rate of progress is generally described as “slow relative to a normal population of children his age.” [T7r. 68-69]. Even though fi. engages in some aggressive and self-stimulatory behaviors, BE :0viders did not recommend a Functional Behavior Assessment (“FBA”) because they believed they understood the functions of im: behaviors. [Tr. 70]. However, a took the position that, as to the “more intense behaviors”, an FBA might be provided somewhere in the near future. [7r. 70-71].

PD was described as “a science of behavior modification”. [7r. 72]. It is utilized in an attempt to change socially significant behavior. [7r. 72]. For a severely disabled child, S| is implemented in a 1:1 format. [7r. 73]. The principles of f can also be utilized in small groups and in play activities. [7r. 73-74]. In its most intensive form, ii” is referred to as discreet trial teaching (“DTT”) and delivered on a 1:1 basis in an isolated setting and presented in a very systematic manner. [7r. 74]. | I received DTTs during the 2011-2012 school year. [7r. 75]. There is, however, controversy about whether a learned skill can be generalized when it is learned in such a controlled situation. [7r. 75]. Dr. C.

recommended DTTs be delivered tol for approximately 2-3 hours per day. [Tr. 76]. Dr. C. convincingly testified, in relation to the number of hours of SEIT services i. receives, that more DTTs a day are not necessarily better. [Tr. 79]. || received some of his E] and CPSE services from a SEIT provider named G.C. [7r. 17/]. G.C. was an Independent Contractor for TTT 1.0 did behavioral consulting work and provided , | services. [7r. 171]. He worked with | from June 2010 through February 2012. [Tr. 172]. At that time, Preceded a great deal of physical prompting to participate in most activities. [Tr. 1/73]. Periodically, G.C. would take | i places in the community such as bowling, Chuck-E-Cheese and the Y, buff had difficulty engaging with other students. [7r.

174]. In his attempt to communicate with peers, a engaged in problematic aggressive behaviors including biting and scratching. [7r. 175]. G.C. rated a: aggressive behaviors as “lower frequency behavior”. [Tr. 176]. The emphasis on fs program at the time was to utilize expressive language in order to reducelll.s frustration. [7r. 781]. G.C. worked onli ; ability to generalize skills learned in individual sessions. [7r. 783]. If discreet trial teaching is defined as providing the child stimulus, awaiting a response and then yet another stimulus provided based upon the response, DTTs were utilized with | A day every day. [7r. /85].

| | engaged in self-stimulatory behaviors but had access to sensory activities to reduce those behaviors. [TR /87]. G.C. believed that a: problematic behaviors were based on frustration, i.e., his inability to communicate and believed that the team should focus on ability to request and engage in other expressive language skills. [7r. 189]. G.C. testified that a SEIT and a Teacher Assistant (“TA”) could be interchangeable. [7r. 22/-222]. Some TAs can have more training in hen a SEIT. [7r. 223]. || has had a number of SEIT providers. One of them, M.A. began providing services for him in July 2010 when he was receiving EI Services. [Tr. 596]. At that time, she worked with him on his response to name, eye contact, attending to task, play skills, puzzles, cause and effect toys and manipulatives. [7r. 596-597]. As a preschool child she works with him on his ability to sit and attend, to focus, to develop preschool skills such as color identification, letter identification, pre-wtiting skills, imitation skills and play schools. [T7r. 597]. Although ma has limited expressive language he is able to express himself with an I-Pad program called One Voice. [T*.

597]. Regarding use of the J-Pad, he primarily uses it when prompted although he can independently utilize it to express hunger or request a specific toy. [T7r. 598]. P| has problematic articulation although providers are able to understand him. [7r. 598]. He can put his clothes on when prompted. [Tr. 599]. A provider is working on a toilet training schedule as he is primarily reliant on prompts to use the bathroom. [7r. 599]. M.A’s annual review dated February 20, 2012 as well as a subsequent progress report for June 2012 show that || had not mastered any of his stated IEP goals. [Tr. 60/7], [S.D. Exs. 22 and P. HH]. At a CPSE meeting

| in June 2012 M.A. believed thatiMneeded a small structured environment and 1:1 assistance. [Tr. 602]. M.A. would not recommend solely a home program for a. for the 2012-2013 school year. [7r. 617]. During the 2011-2012 school year, ma received 1:1 istruction at home for 30 hours per week. [T7r. 621-622]. M.A. recommended the same level of services, but not necessarily at home, for the 2012-2013 school year. Although | | has fine motor issues, his Parents favor an BB rogram rather than specific | 605].

Another one of | SEIT providers J.S. testified. She started working with i in June 2010.

[Tr. 642]. She has provided EI, CPSE and [ervices as a SEIT to I. [7 642]. 1. believes that | og receptive skills are relatively strong. [Tr. 644]. She testified convincingly that [Fs greatest difficulty is the intensity of the self-stimulatory and off task behaviors resulting from his frustration with expressive language. [Tr. 645]. Those behaviors have included banging his chin with his hand or banging his chin on a table, head banging, pulling his own hair, trying to bite, trying to scratch, trying to hit, “side sighting”, tapping, banging of objects and twirling of objects. [7r. 646]. The providers and consultants are addressing the behaviors and instituting behavioral protocols. [Tr. 649-652]. a will pick up items which he can use for self-stimulation, tapping or banging. [7r. 667]. J.S. believed that ff needed ahighly structured program with a full-time 1:1 for the 2012-2013 school year. [7r. 684]. 1:1 assistance is needed to address 7 self-stimulatory behaviors. [7r. 677]. J.G. does have opportunities to go into the community, frequently with his nanny in the afternoons. [Tr. 672-673]. In the community he does not get DTTs. [Tr. 673]. | does not interact with other children. [7r. 677].

As of June 15, 2012 a had not reduced or eliminated his self-stimulatory behaviors. [Tr. 704]. At the conclusion of the 2011-2012 school year i. had not mastered any of the goals set forth on his IEP. [Tr 706]. J.S. believed that there was no consistency in program until September 2011. [Zr 7/2]. Even thereafter there were constant changes in a: program and the focus of the program. [Tr. 7/2].

J.S. had provided SEIT services to a child in the Preschoo! approximately 2 years ago. [Tr. 686}. She testified that that preschool was receptive to suggestions made by her. [7r. 687]. She expressed the hope that 7. would imitate social behaviors of typical children. [7r. 688-689]. She testified that because needs structure he would benefit from hours in addition to the 30 hours of Jblready provided him. [7r. 690]. J.S. testified that she envisioned as placement in a typical preschool as an opportunity to generalize the skills that he has been working on in his 1:1 home setting. [7r. 720]. J.S. believed thai needs his 1:1 delivered by providers with more education than that mandated for teaching assistants. [7r. 728].

Early in 2012 the family retained outside consultants. [Tr. 67 and 1158]. The family contacted and retained providers from an institute which provides services to Jj youngsters and their families, The Po [7r. 1158-1160]. Parents produced for testimony i. a BE employee. [Tr. 786]. The § model is intensive 1:1 instruction using f Po (Tr. 795]. It is comprised of discret trial teaching, incidental teaching, as well as parent teaching. GE «commends intensive therapy, for children (q at least thirty hours per week. [7r. 795]. Such training involves behavioral strategies and taking the children into the community. [7r. 797]. The BE n0de1 also includes Parent training. [Tr. 797].

K.DiS. met

J in February 2012. Upon her review of the data, K.DiS. concluded that hia not exhibit many of the skills he had allegedly previously mastered. [7r. 800]. She serves as a consultant to the providers. [7r. 802-803]. She provides approximately 12 hours per month of consultation. [7r. 807]. She believes Ps greatest difficulties are in the area of attention and retention as well as verbal apraxia. [7r. 809]. The attention issues manifest in self stimulatory activities, escape and task avoidance behaviors. [7r. 809]. Since she started, a. scratching and biting behaviors have been extinguished, however, head hitting remains. [Tr. 8//]. J.G.

needs a behavioral plan which has to be consistently implemented. [T7r. 8/6]. K.DiS, in reports dated April 23, 2012 and June 11, 2012, recommends that GB receive 40 hours of therapy per week. [7r. 823], [P. Exs. JJ and KK].

The PA consuttant has recommended 1:1 services rather than instruction in diads or triads.

[Tr. 834] [P. Ex. P]. | self-stimulatory behavior requires this 1:1 instruction. [Tr. 834]. Nevertheless, the consultant recommended part time placement in a typical preschool which would provide || an opportunity to generalize skills, model language, develop play skills and social skills with typically developing peers. [7r. 835]. In sucha setting, A would still need 1:1 ABA instructor and the prompts therefrom to be kept on task. [7r. 836]. Lessons would need to be modified for him. [7r. 836]. The consultant testified that she thought, at this point, it is in @ best interest to interact with typically developing peers in a typical preschool setting. [Tr. 904]. FJ will need someone with him, even in a play setting in a regular classroom. [Tr.

906]. Qf would need prompting and reinforcements to appropriately interact with children in a preschooi setting. [Tr. 908].

| | does have some evolving skills such as dressing. [7r. 848-849]. J.G. can imitate some skills. [Tr. 853-854]. The providers are currently working on pre-academic skills primarily through imitation. [7r. 854-855]. Regardless, a. acquires new skills at a very slow rate. [77.

882}. | I had to receive a great deal of instruction in making a fist due to his fine motor issues, [Tr. 827]. || has motor planning issues. [7r. 8268]. GR bas both fine and gross motor deficits. (Tr. S897]. K.DiS. believes that a: fine motor needs are being met through the Lovaas services. [7r. 892]. He matches 23 letters and he can match numbers 1-10. [7r. 908-909]. In all probability, MB will need hand over hand prompting when engaged in arts and crafts activities in a preschool setting. [7r. 926].

Ms. W., the Clinical Director at the Ii Institute and the direct supervisor of K.DiS. testified concerning the key components of an , | program which she believed to be consistency, intensity, parent involvement, training of staff and data collection. [7r. 946-949]. The main objective for f | services is to prepare these young children to be able to benefit from a classroom setting. [7r. 952-953]. In terms of [jh the personnel are working on prerequisite skills which will help him in a classroom program. [T7r. 953]. Currently, | & program emphasizes imitation skills so that he can learn from both instruction and peers. [7r. 953]. a: greatest difficulty continues to be in the area of speech. [7r. 954]. BBB also has issues with motor planning and movement. [7r. 954]. Because a. has difficulty maintaining skills, Ms.

W. recommended the provision of services on weekends. [7r. 958]. p | contractors are not providing services during weekends or school holidays. [7r. 933].

Ms. W. believes it is important for a to be placed in a regular classroom with typically developing peers so as to imitate communication skills, play skills, behavior, language and to utilize his newly acquired imitation skills. [7r. 977 — 978]. The regular classroom placement would be in addition to his intensive 1:1 home S| program. [T7. 982}. She testified that the bulk of his learning will continue to happen in a 1:1 home based setting utilizing DTTs because || does not have the prerequisites to benefit sufficiently from small group instruction. [77r. 985].

EVALUATIONS AND PROGRAMMING

A number of evaluations onl were completed in December 2010. [S.D. Ex 12-17]. The December 2010 Psychoeducational and TE © valuations are the last such evaluations to be performed on [Tr. 357]. When I was tested in 2010 his cognitive scores were in the borderline range of intelligence. [Tr. 296, S.D. Ex 13]. Communication, daily living, social and motor skills, as well as overall adaptive behavior skills were in the moderately range. [T7r. 296, S.D. Ex 13). In auditory and expressive communication skills, he scored in the | | percentile. [7r. 298, S.D. Ex 15]. Motor skills were in the percentile. [Tr. 298]. His grasping skills wereljJstandard deviations below the mean, his visual motor integration skills were in the percentile. [Tr. 299, S.D. Ex 17}. |g TEP for the 2011-2012 school year, developed on June 1, 2011, recommends that he receive SEIT services five times per week, six hours per session, Parent counseling and training once a week, 60 minutes per session and individualized 33:22 services three times per week, 30 minutes per session. (Tr. 301, S.D. Ex 7|. The District’s Assistant Director of Pupil Personnel Service, N.Y., testified that the amount of hours GB teceived at home was very different than that typically given disabled youngsters. [7r. 292, 303]. In October of 2011, the 201 1-2012 IEP was changed to read SEIT services 1:1, 30 times weekly,

1 hour per session. [T7r. 304, S.D. Ex 6]. That CSE Amendment was made by written consent. without a formal meeting. [7r. 305, S.D. Ex 40]. On or about December 19, 2011, the IEP was changed so that | | would receive HE herapy on an individual basis, three times a week, 30 minutes per session. [7r. 306, S.D. Ex 5]. Oral motor skill goals were added to the December 19, 2011 IEP. [Tr. 306, S.D. Ex 5]. Whereas has diminished fine motor skills, a services had been recommendedforff for the 2011-2012 school year but the Parents rejected those services and i: not appear on fs 2011-2012 IEP. [Tr. 306, S.D. Exs 5 & 17]. At that December 2011 CPSE meeting, it was suggested to the Parents that they tour some center based programs so that fs last preschoo! year, before transitioning to Kindergarten, might include such a program. [7r. 1359]. There was also concern about the consistency in ma. home program because of the number of SEIT providers required to meet the 30 hour in home requirement. [7r. /361]. In anticipation of a future CPSE meeting, the District’s PPS Director suggested that the Developmental Disabilities Young Adult Program (“DDI”) would be a good starting point because that was a program based on the BB 2pproach. [Tr. 1362]. In planning for IPs 2012-2013 school year the CPSE met on March 19, 2012. [7r. 308, S.D. Ex 4]. Annual reviews and reports from SEIT and related service providers were reviewed at that meeting. [7r. 308]. There was also a language skills report which showed that ms expressive and auditory language skills remained low. [7r. 309-310]. SEIT providers L.C. and J.S. were at that meeting along with a representative from a private center based program, DDI. [7r. 3/0]. J.S. reported that 7. was making slow progress but needed constant redirection. [7r. 3//]. For many skills he needed hand over hand assistance and that it was difficult for him to maintain skill levels.

[7r. 311]. There was some discussion regarding assistive technology, particularly | | utilization of an IPad. [7r. 3/2].

At the March 2012 CSE meeting the CPSE adopted the position that || would benefit from a center based highly structured program. [7r. 31/4]. The CPSE determined that BB needed a program in which he could learn routine, interact with children and prepare for Kindergarten.

[Tr. 314]. The CPSE determined that 1 | needed to learn skills as well as generalize them and that that would best be accomplished in a center-based program. [7r. 3/5-3/6]. The Parents, on the other hand, wished to have , | maintain SEIT services on a 1:1 basis at his home. [7r. 3/4].

The Parents let the CPSE know that || was receiving | a he required 40 hours 1:1 instruction, but that they were willing to look at the DDI program. [Tr. 315].

DDI is a program based on the GE ethod. [7r. 315]. The specific DDI program recommended for a. was a 6:1:3.5 special education classroom. [7r. 3/5, S.D. Ex 4]. The CPSE, in addition to the center-based recommendation, offered 10 hours per week of SEIT services in the home for the 2012-2013 school year. Tr. 316, S.D. Ex 4|. Mr. & Mrs. G stated that they wished || to have exposure to typically developing children and, therefore, were not looking for a special education classroom. [7r. 3/6]. The Parents mentioned the possibly of enrolling [jl in al school with typically developing preschool children. [Tr. 317]. Based upon the discussion at the March 2012 CPSE meeting it was decided to have the Parents visit the pe program so as to continue a working relationship with the Parents and do what was best forll [7r. 377]. The P| program was suggested because it has an integration component with typically developing children. [7r. 3/7]. Prior to the June 2012 CPSE meeting, the Parents, along with their consultant, went to visit the GE program. [Tr.

329].

Annual reviews were discussed at the March 2012 meeting. [7r. 1367-1368]. i: significant deficits in cognition, language, social, emotional and all other areas of development were discussed at the March meeting. [7r. 1369]. Proposed goals were included in an IEP which was projected on the wall at the CPSE meeting. [7r. 1369-1370]. The Parents did not support the DDI placement recommendation and requested that the Committee consider continuation of 30 hours of , | home services and to use part of those hours to attend a typical preschool. [Tr.

1373]. The Parents were afforded an opportunity to discuss MBs needs, in depth, at the March 2012 CSE meeting. [7r. 1/379]. The CPSE rejected the Parents request for a continuation of home SEIT based program. [7r. 1373]. The CPSE took the position that there would be more opportunities to facilitate appropriate peer interaction in a center based program with a special educator present. [7r. 1374]. It was also felt that a center based program could address the consistency issues lacking in the existing home based program. [T7r. /374]. All in all, the CPSE recommended that a center based program because, theretofore, the progress P| had made, was inconsistent and minimal. [7r. 1375-1376]. The CPSE reconvened on June 19, 2012 with a representative of the BRR pogram, D.M. [Tr. 317-318, S.D. Ex 3]. D.M. described the > :ogram as a 12:1:2 program that has half day of direct 1:1 jservices whereas the second half of the day is spent with typically developing preschoolers who were mentored for the program. [7r. 3/8].

At the June 2012 meeting, where the CPSE recommended the P| 12:1:2 program, it also proposed igservices, [EBB services, SEIT services to be delivered in the home and a 1:1 TA to provide Ml. direct hand over hand instruction during the 25 hours he would be in the center-based program. [Tr. 329, S.D. Ex 3]. In light of fs diminished fine motor skills the CPSE recommended BE 0 :ecary services and developed some goals to address those needs. [7r. 323 — 325, S.D. Ex 3]. The CPSE believed that the 1:1 TA could deliver [i services at the pre-school in the form of discret trials. [Tr. 330]. The SEIT would continue to provide those services in the home setting. [7r. 330].

The County had a representative, via | at the June 2012 CSE meeting. [7r. 340]. Mr. S| in reaction to the Parent’s request for 40 hours of 1:1 home support services, told the Parents that what they desired is “not what a program is for, stating that if a. requires that much support he requires a program”. [7r. 340-341]. It is a CPSE which ultimately makes a programmatic decision for a disabled pre-schooler and can override input from the County

Representative. [7r. 407]. Although not put in the IEP, the Assistant PPS Director apparently told the Parents that if a is in a program and not making progress the District would not keep him in that program. [7r. 341-342]. Also not placed in the IEP, in a discussion with the Parents, the Assistant PPS Director offered some additional SEIT services before and after the school day. [Tr. 339-340]. These were termed “transitional support services”. [Tr. 340].

Additional Parent Members were not at either the March or June 2012 CPSE meetings. [Tr.

343]. In advance of the March meeting the Parents were informed that no Parent Member was available. [Tr. 1366]. According to the Assistant PPS Director, at neither the March nor June meeting did the Parents object to going forward without a Parent Member. [7r. 343]. The Parents were told at the CPSE meetings that if a Parent Member could not be found for the meeting that the meeting could be rescheduled. [7r. 402-403]. At both the March and June meetings, the Parents signed a form provided them by the District which states that they are requesting that no Parent Member be present at their child’s CPSE meeting. [7r. 344, SD. Ex

10).

The Parent testified that he had had no prior communication regarding the attendance of a Parent Member at the June CPSE meeting. [7r. 1192-7193]. The Parent testified that they signed the form regarding a Parent member because there were so many people assembled for the June 19"

CPSE meeting and his fear of losing services for his son. [7r. 1/97]. He testified that “I really felt I didn’t have a choice in signing that. It was either sign this form and go through the meeting and at least have a possibility of coming up with the resolution with the District, or not signing the form, waiking out of there and I definitely lose the therapist. I was told that there would not be another trme when we could actually hold the meeting and when his services were going to lapse.” [7r. 1197]. The Parents had been told that if they didn’t reach agreement at the meeting m.. services would be lost and, in anticipation of that the Parent contacted his msurance company to see if they would pay for services for J.G. [7r. 1194]. Mr. G also contacted his

P| providers to see what they had been told regarding the end of services should no agreement be reached. [T7r. 1194]. He was told by the Agency that it did not take insurance or money from Parents as it had contracts from the District. [7r. 1195-1196]. The father testified that “[w]ithin the course of a couple of days of this meeting, I find out if I don’t go into this meeting and have a plan in place to do something, than my son is going to lose everything that he’s got in terms of his therapy.” [Tr. 1/96].

At the CPSE meeting in June 2012, the Parents were given opportunities to discuss their concerms. [7r. 1379]. An IEP was projected onto the wall at the June 2012 CPSE meeting. [7r.

1380]. The Director at the BE a csise Program, D.M., was present at the June 2012 CPSE meeting and stated that 1:1 programming could be afforded a child at the BE »:0¢cam if that was needed to meet the child’s individual needs. [Tr. 1381-1382].

The program utilizes the HE 1001. [7r. 465-466]. Itisa research based model of treatment for children with I) ([Zr. 465]. It utilizes combined with relationship-based approaches to address social deficits of children with J [Tr. 466]. Upon a review of his documentation, a. was accepted into he i program. [Tr. 473]. He was accepted into an “early learners” program for children who do not have a lot of communication skills, language skills, play skills or socialization skills and require more intensive 1:1 work. [Tr. 473]. The Aa program utilizes discret trial programming for some children but the majority of their students learn through using “pivotal response training”. [Tr. 454-485]. a was to be in a half day integrated classroom with 6 other P| kids joined by 6 typically developing children for the second half of the day. [Tr. 474]. The typically developing children are prescreened so that they will be appropriate role models for children with pe [7r. 475]. The school day would run 6 hours per day. [Tr. 476]. J.G. would be in a classroom of 6 students in the morning and 6 additional typical students in the afternoon. [7Tr. 476-477]. Each disabled child in the program would have an individualized 12 week plan. [7r. 478]. The 12 week plan would link to the child’s longer IEP goals. [7r. 481].

During the afternoon session an Early Childhood teacher would be in the classroom along with the Special Education teacher and 3 teacher assistants. [7r. 490]. The TAs provide direct instruction under the supervision of the teacher. [7r. 5/9]. The classroom is designed to foster peer to peer relationships. [Tr. 493-494]. It meets from 8:30 — 2:30 with an hour for lunch at which intervention occurs. [7r. 577].

The June 2012 IEP for a. included the following: a 12:1+2 self-contained special class 5 times a week, 5 hours per session; a TA with the entire time he was to be in the R:142 setting; SEIT 1:1 services, 5 times a week, 2 hours per session; gg herapy, 5 times a week, 30 minutes per individual session ME 3 times a week, 30 minutes per session; and, Parent counseling and training | time a week, 60 minutes per session. [Tr. 1383, 1413, S.D. Ex 3\. Because || has made minimal or inconsistent progress goals included in his final [EP were similar to goals stated in the IEPs for the prior year. [7r. 1403]. At the June 2012 CPSE meeting, the IEP was projected on a screen so that the entire team could see it. [7r. 382]. Although the goals were not read verbatim, they were discussed. [7r. 382]. The Specific goals were not discussed and the CPSE did not go over every goal proposed for for the 2012-2013 school year. [Tr. 1199, 1427-1428].

Following the June 2012 CPSE meeting, Prior Written Notice was provided to the Parent. [77.

351, Ex. 38]. In part, that Prior Written Notice reads “[p]lease be advised that if you do not sign the Preschool Enrollment Form for the 2012-2013 school year, then the Committee will be unable to implement the IEP for the 2012-2013 school year, and your son’s services through the Comunittee on Preschool Special Education will end on 6/29/12.” [Ex. 38].

Preschool parents are asked to sign a Preschool Enrollment Form for submission to the County in order to insure payment for services. [7r. 1386-1387]. That form was presented to the Parents at the end of the June CPSE meeting, at which time the PPS Director told the Parents “I was concerned if they didn’t sign it, Jj would not get his services for the 2012-2013 school year.” [Tr. 1388]. The Parents did not agree with the CPSE’s June 2012 program recommendation and did not sign the form. [7r. /389-1420].

The father claimed that because they wouldn’t sign the form at the end of the June 2012 CSE meeting that | | lost approximately 1 week of services. [7r. 1234-1235]. The father testified that he understood at the conclusion of June meeting that if the Parents did not agree with the program recommendation that 7. would be entitled to continue receiving services through pendency. [7r. 1246]. Nevertheless, he also testified that he did not know that || was not going to lose services. [Tr. 1246]. The father also testified that his wife received calls that if there was not a CSE meeting in June that a. would not receive any services. [7r. 1268]. Their providers also told them that if there was not another IEP agreed upon that services would be lost at the end of the 2011-2012 school year. [Tr. 1269-1270].

Mr. also testified that at the December 2011 meeting, in which additional GR herapy was added, the family was told that the County had “red-flagged” their child’s program because of the amount of | | in home, services [il was receiving. [7r. 1168-1170]. He believed that based upon County input, the District was taking the position that the Parents needed to start looking at center based programs. [7r. 1170]. Mr. ff testified that at the March meeting the County Representative, Mr. P| stated that | | should not be receiving as much home therapy as he was and that he should be in a center based program. [T7r. 1176-1177].

The Parents hired an expert Dr. F. to accompany them in a visit to the Bo: ogram and to go with them to the June 2012 CPSE meeting. [7r. //8/-1199]. Mr. G did not agree with the Bogen because he believed that BR would not get sufficient 1:1 assistance and that the program was “very heavy in sensory and GE therapy type delivery of care”.

[Tr. 1186-1187]. However, he did testify that “[t]echnically, my nanny gives J 1:1 instruction when she takes him to Chili’s and they eat dinner together.” [7r. 7787-1188]. The Parents were allegedly told by the BE Director that if they were searching for intensive BR 2ery ae i: not the placement. [7r. 7/88].

The Parents did not accept the District’s proposed [EP and, as such, || currently attends the Po School in Fo New York 3 times a week from 9:30 a.m. — 12:00 noon. [7r. 1215]. On average, he receives about 7 % hours a week in that setting. [7r. 72/5]. A SEIT accompanies him to that school. [7r. /215]. The Parents and their experts see this as “an opportunity to learn certain skills that he was going to need to function in a preschool..... [Tr. 1215]. The family believes that their proposed program provides an opportunity for ff to develop skills and be exposed to typically developing peers. [7r. 1219-1220].

The Parents pay separately for therapist to come in over the weekend. [7r. 1222].

In this litigation, the Parents are looking for an intensive in-home fil program for 40 hours per week (although they would be willing to compromise for 30 hours) as well as an hour of Parent training per week and i three times per week, 30 minutes per session. [7r. 1264-1265]. Currently, under pendency, the District is paying for precisely those services. [Tr. 1265]. Additionally, the Parents seek funding for the 7.5 hours the SEIT accompanics Ji to the typical preschool. [7r. 1265-1266]. The Parents expert, Dr. F, testified that HJ is the best practice utilized for children with P| [Tr. 1039]. Dr. F. concluded that J had “interfering behaviors” and that his behaviors were such that he required a behavior intervention plan. [7r. /050]. Overall, Dr. F.

did not think P| would be an appropriate program for because it lacked the intensity that he requires at this time. [77. 1072].

Dr. F. testified that given | & cognitive potential he would benefit from having opportunities to observe typically developing children in a preschool environment. [7r. 1/079]. Part of the basis for Dr. F’s recommendation for 40 hours is that “if he’s going to preschool, he needs to be pretaught and previewed a lot of the skills that the children in the school might be experiencing”.

[7r. 1081-1082]. Dr. F. observed a. in his typical preschool setting with the SEIT providing support. [7r. 1082-1083]. She described a. when out on the playground, as observing the other children. [7r. 1084-1085]. Dr. F. testified that fj would only be better off in a center-based program “if that program provided him with an intensive individualized 1:1 S| program that followed the actual principles and strategies of ee ©: the research literature”. [Tr. 7/13].

LEGAL STANDARD

The Individuals with Disabilities Education Act (“IDEA”) provides disabled children with a free and appropriate public education (““FAPE”). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir.2005). To ensure that qualifying children receive a FAPE, a school district must create an individualized education program (“IEP”) for each such child. See 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 2d Cir.2002) (describing the IEP as the “centerpiece” of the IDEA system). The IEP is “a written statement that sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.” D.D. ex rel. V.D. vy.

N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir.2006) (internal quotation marks omitted). The IDEA requires that an IEP be “reasonably calculated to enable the child to receive educational benefits.” Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).

Two purposes of the IDEA are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d]}[1][A]-[B}; see generally Forest Grove v. T.A., 129 8. Ct. 2484, 2491 [2009]; Bd. of Educ. V. Rowley, 458 U.S. 176, 206-07 [1982]).

In New York, the state has assigned responsibility for developing IEPs to local Committees on Special Education (“CSEs”). N.Y. Educ. Law § 4402(1)(b)(1); Walezak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir.1998). CSEs are comprised of members appointed by the local school district’s board of education, and must include the student’s parent(s), a regular or special education teacher, a school board representative, a parent representative, and others. N.Y. Educ. Law § 4402(1)(b)(1)(a). The CSE must examine the student’s level of achievement and specific needs and determine an appropriate educational program. Gagliardo v. Arlington Cent. Sch. Dist., 89 F.3d 105, 107-08 (2d Cir.2007).

In determining whether an IEP complies with the IDEA, the two-part inquiry made is, first, procedural, and second, substantive. At the first step, courts examine whether there were procedural violations of the IDEA, namely, “whether the state has complied with the procedures set forth in the IDEA.” Cerra, 427 F.3d at 192. Courts then examine whether the IEP was substantively adequate, namely, whether it was “ ‘reasonably calculated to enable the child to receive educational benefit [s].’ “ Jd. (quoting Rowley, 458 U.S. at 206-07, 102 S.Ct. 3034).

Substantive inadequacy automatically entitles the parents to remedies. Procedural violations, however, only do so if they “impeded the child’s right to a [FAPE],” “significantly impeded the parents’ opportunity to participate in the decision making process,” or “caused a deprivation of educational benefits.” 20 U.S.C. § 1415()G)(E)Gp; 4.C., 553 F.3d at 172. Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not. See Werner v. Clarkstown Cent. Sch. Dist., 363 F.Supp.2d 656, 659 (S.D.N.Y.2005).

New York regulations require a District to conduct an FBA for a student “whose behavior impedes his or her learning or that of others.” N.Y. Comp. Codes R. & Regs. Tit. 8

§200.4(b)(1)(v). The FBA includes “the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior ... and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it.” Jd. § 200.1(r).

When a student’s behavior impedes his learning, a BIP must be developed with strategies to deal with the problem behavior(s). Jd. § 200.225(b), The failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student’s behaviors, leading to their being addressed in the JEP inadequately or not at all. Such a failure seriously impairs substantive review of the IEP because courts cannot determine exactly what information an FBA would have yielded and whether that information would be consistent with the student’s IEP.

RE. v NYC Dept. of Educ.____—~*F.3d_——__ (2TM Cir. 2012). The entire purpose of an FBA is to ensure that the IEP’s drafters have sufficient information about the student’s behaviors to craft a plan that will appropriately address those behaviors. See Harris v. District of Columbia, 561 F.Supp.2d 63, 68 (D.D.C.2008) (The FBA is essential to addressing a child’s behavioral difficulties, and, as such, it plays an integral role in the development of an IEP.”).

The failure to conduct an FBA will not always rise to the level of a denial of a FAPE, but when an FBA is not conducted, the court must take particular care to ensure that the IEP adequately addressed the child’s problem behaviors. See 4.C., 553 F.3d at 172 (finding that IEP provided appropriate strategies for student’s problem behaviors when it (1) addressed student’s attention problem by providing a personal aide to keep child focused and (2) addressed child’s “minimal” tangential and fantasy speech with psychiatric and psychological services), The Second Circuit Court of Appeals recently stated that “our precedents have considered the efficacy of IEPs’ treatment of behaviors in particular cases; they should not be read as approving the practice of routinely omitting an FBA. New York regulations do not permit this shortcut. Additionally, New York regulations require that an IEP provide for parent counseling and training for the parents of autistic children. N.Y. Comp. Codes R. & Regs. tit. 8 § 200.3(d). “Parent counseling and training means assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child’s individualized education program.” § 200.1(kk); RE. v NYC Dept. of Educ., F3d (2"* Cir. 2012).

The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415([f][3][E][a]). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walezak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130° [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walcezak, 142 F.3d at 132). Nonetheless, a school district must provide “an JEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement’” (Cerra, 427 F.3d at 195, quoting Walezak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114 [a][2]fi], 300.116[a]}2]; 8 NYCRR 200.1[cc], 200.6fa][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walezak, 142 F.3d at 132; E.G. vy. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identity the student’s needs (334 CFR 300.320[aj[1]; 8 NYCRR 200.4[d][2][1]; Tarlowe v. Dep’t of Educ., 2008 WL 2726027, at *6 [S.D.N.Y. July 3,2008)), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iti]), and provides for the use of appropriate special education services (34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 0-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim (Florence County Sch. Dist.

Four v. Carter, 510 U.S. 7 [1992]; Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S, 359, 369-70 [1985]).

In New York State the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see MP.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at *7[S.D.N.Y. Aug. 27, 2010]).

A private school placement selected by the Parents must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student’s special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419). A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd.

Of Educ., Appeal No. 08-085; Application of the Dep’t of Educ., Appeal No. 08-025; Application of the Bd. Of Educ., Appeal No. 08-016; Application of the Bd. Of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” (Gagliardo, 489 F.3d at 112; see MS. v. Bd.

of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [sjchool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement...’” (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364 [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student’s potential (Frank G., 459 F.3d at 364-65). When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; see Gaglardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6TM Cit. 2003]) [stating “evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA”]]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401]1]; 8 NYCRR 200.1[ ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New

York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010]). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents’ claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; MC. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; See Carter, 510 U.S. at 16 [“Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents 20 U.S.C § 1412[a][10][C]iit}; see SW. v. New York City Dep’t of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. Of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; MV. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. V. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch, Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep’t of Educ., Appeal No. 07-032).

The Second Circuit recently held that, with the exception of amendments made during the resolution period, an IEP must be evaluated prospectively as of the time it was created.

Retrospective evidence that materially alters the JEP is not permissible. This rule recognizes the critical nature of the IEP as the centerpiece of the system, ensures that parents will have sufficient information on which to base a decision about unilateral placement, and puts school districts on notice that they must include all of the services they intend to provide in the written plan. If a school district makes a good faith error and omits a necessary provision, they have thirty days after the parents’ complaint to remedy the error without penalty. R.E. v. NYC Dept. of Educ. WL 4125833 (2TM Cir. 2012)

DECISION

In this case, the initial FAPE inquiry revolves around whether the Parents’ and i: procedural due process rights were violated. In the first instance, New York State has clearly articulated the mandated members of Committees on Preschool Special Education. Included among those mandated members is a Parent Representative. Even though federal Regulations do not require a Parent representative for an “IEP Team”, see 34 CFR§300.321, the New York State Legislature felt this to be an important component of a CPSE team or it would not have so mandated.

However, the Commissioner’s Regulations state that “such Parent is not a required member if the Parents of the student requests that the additional Parent Member not participate in the meeting.”

8NYCRR §200.3(a)(1)(viii). Although the Parents herein signed a statement that they were requesting that the additional Parent Member not participate, I find that the execution of the waiver for the June CPSE meeting was, in some measure, coerced.

Although the Parents may have received a call prior to the March 2012 CPSE meeting, the Parents were not forewarned that an additional Parent Member would not be available for the June 2012 CPSE meeting. I find that it was at that meeting that they were first informed of the non-availability of an additional Parent Member. Although they signed the “waiver” they would have been hard pressed not to execute that form. In fact, they had retained and brought their expert, Dr. F., with them to the meeting and had obviously adjusted their own schedules for attendance thereat. They were also told that should they not reach agreement, it was possible that services toll, would terminate. I find, based on credible testimony from the father, that executing the waiver was not wholly volitional.

A significantly more egregious procedural due process violation occurred when the PPS Director informed the Parents that preschool services for would end should they not reach agreement on a’‘program. Although, she may have intended to communicate that it would be problematic for providers to get paid by the County should the Parents not execute a “Preschool Enrollment

Form”, that was not the message she communicated to the Parents. In fact, the father testified that he looked into procuring insurance coverage to continue payment tof ’s teachers and providers should the District carry through on the perceived threat. Whereas the District had provided the Parents with procedural Due Process Notice, there is no clear indication in the record that the District thoroughly explained to the Parents that they could circumvent the threat by invoking Due Process and ensuring pendency services would take place. Further, ever if the Parents did not agree with the proffered program and/or sign the pre-school enrollment form, the program offered by the District would remain available to | | Whereas there are clear prescriptions in the Commissioner’s Regulations regarding the points at which Parental Consent is necessary in order for services to take place, the execution of a preschool enrollment form is not one of those. See 8NYCRR §200.5(b). In this instance, the District’s PPS Director’s statement regarding termination of student services without an explanation of pendency or that the Parents’ signatures were simply needed for County funding, in conjunction with the District’s

Prior Written Notice which explicitly threatens termination of services, is a serious procedural

Due Process violation. Further, New York Regulations require a District to conduct an FBA for a student whose behavior impedes his or her learning...” 8NYCRR §200.4(b)(1)(v). There was abundant testimony in this case regarding ms self-stimulatory, aggressive and self-injurious behaviors, a combination of which impeded his learning. Notwithstanding that the PF providers thought they understood the function of his problematic behaviors, failure to conduct an FBA becomes a denial of FAPE if an IEP does not adequately identify the problem behaviors and prescribe ways to manage them. An examination of the IEP at issue in this case, $.D. Ex 3, the June 19, 2012 IEP, contains only sketchy information regarding | oO behaviors. A review of his IEP Present Levels of Performance, Social Development Section, simply states that mm needs to decrease self-stimulatory behaviors”. It does not describe those behaviors or their functions nor does the JEP, at any juncture, offer mechanisms for decreasing the self-stimulatory behaviors. The Management Needs portion simply states that ‘i needs frequent redirection to remain on all tasks as his self-stimulatory behaviors impede his ability to attend.” The IEP provides very little information regarding the self-stimulatory behaviors and does not even mention the aggressive or self-injurious behaviors in which P| engages. Even more problematic, however, the IEP has but a single goal set forth as decreasing self-stimulatory behavior but contains no mechanisms whatsoever for accomplishing that goal. What, if anything, are the teachers and providers to work on to decrease such behaviors? Further, there is no goal to address fi aggressive or self-injurious behaviors. I find that lb behaviors impede his learning and, as such, he needs either an FBA or an IEP which identifies the behaviors and addresses them. | TES neither the FBA or an adequate IEP. The IEP, in boiler plate, does state that | | needs strategies, including positive behavioral interventions, supports and other strategies to address behavior that impede the student’s learning. However, nowhere does it set forth those strategies while it goes on to conclude that BB does not need a behavioral intervention plan (“BIP”). I find to the contrary. mm: [EP does not adequately address his behaviors, nor does it provide behavioral interventions, supports or other strategies to address those behaviors which would override the need for an FBA and a BIP.

As such, I find that the District should have conducted an FBA which would have addressed the child’s behavioral difficulties and assisted in the development of an appropriate IEP. The lack of an FBA in conjunction with the procedural due process violations addressed above rises to the level that the procedural due process violations impede the child’s right to a FAPE.

Notwithstanding my finding, it should be noted that the Parents and their expert had the opportunity to participate in the IEP decision making, although their position was not adopted by the District. Although the District had a programmatic plan forfill well in advance of the CPSE meetings, I do not find that the District engaged in improper predetermination. The Parents and their experts were given a full and fair opportunity to present opinions and positions at the CSE meetings. Nevertheless, the multiple procedural violations cumulatively result in the denial of FAPE toi

Having determined that the District cannot carry its burden, the analysis herein shifts to whether or not the Parents are entitled to reimbursement for the program they have obtained and/or an Order that the program they have proposed be implemented. In the first instance, the Parents are seeking reimbursement for ms placement at a typical preschool, a SEIT to accompany] to the typical school, additional hours of ME services and payments to their P| consultants. As stated above, although Parents’ private placement is not held to the same level of scrutiny as a school district proposal, it still must be “proper under the Act”. A private placement is only appropriate if it provides educational instruction specifically designed to meet the unique needs of the student. That standard cannot be met by the PD which the Parents herein have placed | | The BE o:0vices absolutely no special education services to i more or less those services specifically needed by him. The typical school does not have a special education teacher and, as such, any services provided to a. in light of his HJ are provided by his 1:1 SEIT. Further, there is no evidence whatsoever that the placement provided educational instructions specifically designed to meet fi unique needs and provided services necessary to permit him to benefit from the instruction. Therefore, I do not find that the preschool | | attends is an appropriate special education setting for him and will not order reimbursement therefor. Since the typical pre-school does not meet | needs it does not become appropriate just because he is accompanied by a SEIT. Clearly, providing DTTs or other intense BR services in a pre-school setting would interfere with the peer interaction upon which he was placed in the pre-school in the first instance. I will, therefore, not order reimbursement for a SEIT to be with him in an inappropriate program.

The Parents herein have retained ihe ED iastitute to consult with and oversee Js program. Whereas Parents are always entitled to enhance their child’s education through additional tutorial or any other support services, the addition of the services to the 30 hours of SEIT services or above the Center Based proposal plus 10 hours as set forth in the IEP is an educational luxury for | not a service necessary for him to benefit from offered educational services. Further, I find that it only adds to the questions regarding consistency of programming as the . | providers are not the employers, contractors or supervisors to the SEIT providers who, as pendency providers, are arguably under the direction of the District. Therefore, I will decline to Order reimbursement for nT cvices. Further, if it is the fi providers or their trainees who are providing the SEIT services to BB ite he is at the typical preschool it only further demonstrates the inappropriateness of the preschool setting. Finally, I will not order reimbursement for any additional SEIT hours, a 40 hours 1:1 week over the 30 hour 1:1 week, as there was no evidence the additional 10 hours of 1:1 | provided S| any benefit over those he received in a 30 hour week.

As I have declined to order any reimbursement to the Parents, no equitable analysis is necessary.

Nevertheless, [ find that the parties, while disagreeing, did adequately work with each other.

The Parents’ Due Process request is for reimbursement or, in the alternative, an Order implementing their requested program. Since the determination herein is that the District is not responsible for reimbursement for the Parents’ program, the next inquiry is whether it is appropriate to order that the District implement the Parents’ requested program. Since I have not ordered reimbursement because the Parent’s program is inappropriate I will not Order the District to implement such a program. There was extensive testimony about i. slow and inconsistent progress with his 2011-2012 home program. There was extensive testimony that a. did not master any of the goals set out in his 2011-2012 IEP. (This I found to be a strange argument from the District as, in the final instance, it is the District’s IEP and proffered goals which were being assessed as to appropriateness.) Although the Parents’ requested program proposed interaction with typically developing students there was no testimony tha . would benefit from placement in a typical pre-school without adequate special education support from the preschool. Arguably, under the Parents’ proposal there continues to be too many providers, questionable consistency among the providers, problematic behaviors, fine motor issues, extremely involved speech deficits and a desperate need for structured interaction, all unaddressed by their proposal. I do not believe that a continuation of 30 hours of home-based mm services is an appropriate program for fill and will, therefore, not order that the District recreate that program.

All the experts extolled the virtues of an || program for ll. The only difference is the intensity and setting in which that methodology is employed. The P| program, providing one-half day of J services and one-half day opportunity to integrate with typically developing peers in addition to the 10 hours per week of a services offered by the District in a: home is a program from which I would have found would benefit had the District not denied FAPE on the basis of procedural due process violations. Clearly, needs the EE services proffered in his IEP and, by Regulation, requires the Parent training set forth in his TEP. I also find that im: fine motor deficits should be addressed and that the District, therefore, made an appropriate recommendation in the IEP foil services. Finally, the Parents did not offer any testimony regarding substantial regression and, therefore, there is no basis for an order providing 52 weeks of service.

ORDER

In light of the above, I order the CPSE conduct a full functional behavioral assessment, FBA, and behavior intervention plan, BIP, in order to appropriately craft an TEP for Upon completion of the FBA/BIP I order that the District reconvene its CPSE, with all members available, providing the Parents a full and fair opportunity to make their presentation. I Order that the Chairperson of the CPSE state that || will be entitled to programming whether or not the Parents sign the Preschool Enrollment form should they chose to enroll their child in a District offered program or simply choose some of the proffered related services. With all the procedural due process protections in place, the District’s CPSE should then proffer an appropriate program for ma which may include the BE >:ozcam, 10 hours of home 1:1 BB services along with scrviccs, a services and Parent counseling. Should the Parents decline the District’s offer, they are clearly free to provide || with an alternative program that the District would not be obligated to fund or implement. If the Parents do not accept the District’s proffered program at that time they do so at their own peril, but I see no reason why the Parents could not decline the center-based program while still accepting related services pursuant to the Commissioner’s Regulations at 8NYCRR

§200.16(e)(3). Where those related services take place would be pursuant to Educ. Law §3602Cc.

Dated: November 21, 2012

So Ordered,

KENNETH S. RITZENBE

Impartial Hearing Offi¢er

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the Parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties’ petition for review shall be personally served upon the opposing party 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. (8 NYCRR §279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home. htm]

EXHIBITS

PARENT EXHIBITS

E. A 06/29/12 Parents’ Exhibit A, three pages of cover sheet confirmation 3 Letter from Parents to District 06/22/12 4 pages

F. Letter from Parents to District 06/20/12 4 pages

H. Letter from Parents to District with fax confirmation + 06/11/12

K. Letter from Parents to District with fax confirmation 05/30/12 2 pages

L. BOE Review Notice from NY to Parents | 05/22/12

M. Letter from Parents to District fax confirmation 05/22/12 2 pages

N. Letter from Parents to District O 03/19/12 PWN Schools postmarked envelope 04/24/12 1 page

P. - Treatment Summary and Recommendation Report (DiS) 06/13/12 10 pages

Q. Educational Observation Review Report (DiS) 05/27/12 15 pages

R. Curriculum Vitae of CF Undated 6 pages

Ss. SEIT Annual Review Report (C) 02/20/12 9 pages

EE. Curriculum Vitae of LW Undated 5 pages

FF. Curriculum Vitae of DiS Undated 2 pages

GG. SEIT Service Quarterly Progress Report (MK) 07/06/12 2 pages

HH. SEIT Service Quarterly Progress Report (MA) 06/15/12 2 pages

I. Related Service Quarterly Progress Report (MA) 06/15/12 3 pages

JJ. Consultation Report (DiS) 06/11/12 15 pages

KK. — 04/12 Consultation Report (DiS) 02/12 14 pages

LL. Affidavit of Service and Subpoena 08/31/12 3 pages

l. School District Exhibits: Response to Due Process Complaint 07/12/12 8 pages

2. Demand for Due Process and Pendency 06/29/12 9 pages DOE

3. IEP 06/19/12 19 pages DOE

4. JEP 03/19/12 20 pages DOE

5. IEP 12/01/11 13 pages DOE

6. IEP 1] 10/17/11 DOE

7. IEP 06/01/11 11 pages DOE

8. Meeting Invitation 05/30/12 2 pages DOE

9. CPSE sign-in sheet ! 10 06/19/12 Waiver of Parent Member ^[1] School District Exhibits: (cont’d.) 06/19/12 DOE

12. Psychoeducational Evaluation 12/21/10 5 pages DOE

13. valuation 12/17/10 5 pages DOE

14. 12/17/10 2 pages DOE

15. 12/10-11/10 Evaluation 16 12/10/10 ] 5 pages DOE

17. Evaluation 12/09/10 7 pages DOE

19. 18 11/23/10 Medical Summary ] SEIT Service Quarterly Report (S) ^[4] 06/15/12 DOE

20. ae ee Report 06/10/12 2 pages DOE

21. 12 Month Rationale 04/01/12 2 pages DOE

22. SEIT Service Annual Review Report (A) 02/20/12 7 pages DOE

24. SEIT Service Annual Review Report (K) 02/20/12 2 pages DOE

25. SEIT Service Annual Review Report (S) 02/20/12 3 pages DOE

26. nnual Review Report 02/15/12 10 pages DOE

27. SEIT Service Quarterly Progress Report (H) 01/28/12 3 pages DOE

28. SEIT Service Quarterly Progress Report (C) 01/07/12 9 pages DOE

29. SEIT Service Quarterly Progress Report (K) 01/16/12 2 pages DOE

30. SEIT Service Quarterly Progress Report (S) 01/18/12 2 pages DOE

31. uarterly Progress Report 01/10/12 2 pages DOE

32. SEIT Service Quarterly Progress Report (C) 11/03/11 8 pages DOE

33. SEIT Service Quarterly Progress Report (H) 10/24/11 3 pages DOE

34. SEIT Service Quarterly Progress Report (K) 11/03/11 2 pages DOE

35. SEIT Service Quarterly Progress Report (S) 11/01/11 36 2 pages DOE

37. 11/01/11 _— SEIT Service Quarterly Progress Report (A) ee Report 2 2 11/03/11 DOE

38. Prior Written Notice 06/19/12 2 pages DOE

39. Prior Written Notice 03/19/12 2 pages DOE

40. TEP Amendment Without Meeting Consent and Prior Written Notice 10/12/11 3 pages DOE

Footnotes

[1] 12/29/10 Preschool Student Evaluation Summary 4

[4] 05/22/12 Correspondence from Parent 2 42 05/31/12 Correspondence from CPSE Chairperson ] 43 03/19/12 CPSE sign-in sheet; Waiver of Parent Member 2