New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: July 13, 2011

August 3, 2011

September 23, 2011

October 11, 2011

November 9, 2011

December 22, 2011

January 19, 2012

January 24, 2012

March 14, 2012

Actual Record Closed Date: March 26, 2012

Hearing Officer: Theresa R. Joyner, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 13, 2011

ESQ., Attorney for Parent — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 3, 2011

Attorney — Student

DOE Attorney — DOE

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

Attorney — Student

Mother — Student

Attorney — DOE

School (Via Telephone) — DOE

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

ESQ., Attorney for Parents — Student

Parents

ESQ., Attorney for DOE — DOE

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

ESQ., Attorney for Parents — Student

Parents

ESQ., Attorney for DOE — DOE

CSE School (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 22, 2011

ESQ., Attorney — Student

Parents

Principal, Imagine (Via Telephone) — Student

ESQ., Attorney — DOE

Unit Teacher, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 19, 2012

Attorney — Student

Parents

Teacher, Imagine Academy — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 24, 2012

Attorney — Student

Parents

BCBA Expert Witness — Student

Department of Education Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 14, 2012

Attorney — Student

DR. , BCBA

, Parent For the Department of Education: , DOE Attorney

This matter came before me on July 13, August 3, September 23, October 11, November 9, December 22, 2011 and January 19, 24 and on March 14, 2012 pursuant to the Individuals with Disabilities Education Act (IDEA) 20 U.S.C. §1415(f)(1).The applicable timelines were extended for each adjournment upon joint request of the parties, after each hearing day. Appended to the record are lists of persons in attendance and documents submitted into evidence.

BACKGROUND

A pendency order was issued on July 18, 2011. The student is , who is classified . She attends a private school, in an ungraded class. The Department of Education (DOE) via its Committee on Special Education (CSE) convened an Individualized Education Program (IEP) meeting on June 14, 2011. The CSE recommended a program, placement in a specialized school, for a 12 month school year. Also, related services were offered for , , , and a .

POSITION OF THE PARTIES

The parents allege that the student was not provided with a “free and appropriate public education” (FAPE); they contend that the DOE failed both procedurally and substantively to offer the student a FAPE. They are seeking prospective and/or reimbursement relief under Burlington/Carter/Connor, to the extent that they incur costs and expenses in their efforts to obtain an appropriate educational program for their child, including tuition and transportation costs as well as related services expenses.

The DOE contends that they offered the student a FAPE including an appropriate special education program designed to meet the student’s specific needs, extensive related services with transportation and a transportation paraprofessional.

THE DEPARTMENT OF EDUCATION’S CASE

The DOE‘s first witness was Stacy Epstein, a New York State and New York City licensed school who has worked for ten years with the DOE as a CSE school psychologist. She described some of her duties as consisting of conducting evaluations, reviewing evaluations, case management, participating in CSE reviews, making recommendations and addressing parents’ concerns. She noted that the CSE review was initially scheduled for May 24, 2011 and then again for June 3, 2011; both dates were rescheduled at the parent’s request. The CSE meeting actually took place on June 14, 2011. (Tr. 94-96; Exh. 13) the CSE review was an annual meeting to review the child’s progress over the year and make any and all appropriate adjustments. Minutes were taken by , the minutes are taken to note the parents’ concerns, to document the issues addressed at the meeting and to provide a legal accounting of what was said at the meeting. She recalled that on the day of the review, earlier she had a preconference with other DOE CSE members to review documents, to determine who will participate and to obtain updated reports from the student’s school. The reports were detailed from her teacher, the principal and service providers; the team was able to get a clear picture of the student’s deficits and needs. None of the participants requested any additional evaluations or information. She stated that there was no purpose in having a new or conducted because the child was too low functioning to be tested.(Tr. 99-101 and 102-105) (Exh. 1)

She identified the participants at the review and their professional background; they discussed a program for the student, goals and classification. They informed the parent at the end of the meeting of their recommendations and classification. She discussed in detail the team’s recommendations and the reasoning behind same. She agreed with the final recommendations then and continues to support same as appropriate for this student. Her rationale was that they addressed the specific needs of the student and that the other options considered at the review were not suitable to address the child’s needs in the least restrictive setting. She acknowledged that the mother felt that the private school was a better fit for her daughter rather than a District public school.(Tr. 107-111; 112-116 and 119-121)

Ms. reviewed the progress report from the early learning center which recommended a continuation of home ( ) for 25 hours per week and 8 hours monthly of consultation, on a 52 week basis. She opined that the services as recommended were an excessive amount of support. She noted that at the CSE review they discussed the student’s progress in the area of . She stated that the IEP was written in a way that her teacher and other professionals who would work with her would understand, what she can do and what she is not able to do. (Tr. 124-129 and Exh. 10) She noted that throughout the IEP it discusses her needs. It refers to cues. The goals are described in detail indicating the level of assistance and are measurable. The student has no history of which are why it was not necessary to conduct a behavior assessment plan and prepare a behavior intervention plan. The information relied on to form the goals was from her teacher and providers and based on the observation. (Tr. 124-126; 128-131 and 137-1400 (Exhs. 3 and 10)

On cross examination the psychologist acknowledged that this was her second year as a school psychologist for the CSE and that she participates in approximately 350 to 400 reviews per year. She admitted that she had never observed the student or seen her in her home program; she never evaluated or tested the student. (Tr. 171-172) Ms. stated that she had never tested a child on the ; she had once attempted to test an autistic child. The did not recall if the mother had contacted the District to inform them that she was unable to attend a CSE review in the afternoon since she had to receive the children at home after school. She acknowledged that both of the prior CSE meetings that were rescheduled had been slated for afternoon meetings. (Tr. 173-175 and 179-181)

Ms. stated that she believed the child was non-testable in 2011and therefore did not have any evaluations done. She admitted that she came to this conclusion based on a evaluation done in 2006. There, the evaluator noted that no formal testing was able to be conducted at that time. However, that evaluator recommended a reevaluation in one year’s time. (Tr. 191-94; Exh. 8) She did not recall any mention of the child’s home program at the CSE review. (Tr. at 202) She believed that the child would be successful in a program based on the reports from her providers and the classroom observation. However, when questioned further regarding the reports she conceded that those reports recommended a continuation of the child’s program at the private school. (Tr. 203-

205) Ms. stated that she was unable based on her knowledge to say that the parent was provided with a full copy of the IEP.(Tr. 206-207)

Ms. testified on redirect that it was not necessary for her to personally test or evaluate the child. The reports were detailed and coupled with her training and experience, all of which provided her with the ability to obtain a clear picture of the child’s needs. (Tr. 207-209) She noted that she felt the child was not testable because of the and the low functioning across all domains. Moreover, the child had made little progress since 2006 and the information was adequate for the team to make their recommendations. She noted that testing can be who are .(Tr. 212-213) The gains made at school did not translate into skills that would be appropriate for formal testing. (Tr. at 215)

testified that she is a unit teacher in ; is a District , specialized school. A unit teacher works as an assistant to the assistant principal and performs various functions. Her duties require her to oversee the implementation of related services, assist with placement decisions and follow up on teachers to make sure that they are following the curriculum given to them. In addition, she reviews IEPs, does classroom observations of the teachers to make sure the classroom environment is appropriate and that the lessons are being differentiated for the students. There are six classes of for children on the . (Tr. 219-242)

She has been trained in several methodologies, including ) and in Treatment and Education of Children (TEACCH). She has utilized these methodologies with children across all ranges of disabilities. She stated that the student’s mother along with other parents came to view her site in June. The proposed class for the student was a in Y-17, taught by Ms. . Ms. , as a classroom teacher is responsible for setting up the physical environment of the classroom, reading the IEPs, knowing the students’ goals and determining how to differentiate instructions for each of the students. She is trained in the TEACCH methodology. The proposed class had one teacher, one class paraprofessional and two paraprofessionals. (Tr. 244-247 and 249-251)

She discussed the curriculum used in the classroom; she explained that the curriculum was multi-layered so that it could be utilized to teach children on several different levels. Each student has an individual binder which is reviewed by the teacher to track the student’s progress and make adjustments as needed. The students in the proposed class had two children at a and were . The remaining three children were functioning on a . (Tr. 253-255 and 257-258) The student’s ages range was . All the students were on the , some had . Ms. was the classroom paraprofessional (para), she has a bachelor’s degree in education with ten years experience. She has worked with the population for two summers. She was trained in the by Ms. . The para assists with heath needs and academic needs; she spends approximately twenty minutes per day on instruction, as needed by the student. Also, under the teacher’s supervision she may work with the children in small groups. She keeps the children on task, keeps them involved with classroom activities. (Tr. 260-262 and at 263)

Ms. teaches all the subjects, ELA, math science, social studies and gym. Ms. i described in detail how a typical school day breaks down, from breakfast in the morning to dismissal in the afternoon. She noted that are used in the classroom for children who are . (Tr. 265-267) Ms. familiarizes herself with each student’s IEP and adapts the curriculum for each child’s needs. Sometimes she provides small group instruction, with two children who are similar in their functional levels and assigns the para to work with them. Ms. typically spends on an average twenty minutes a day with each student providing individual instruction, the time varies according to the student’s needs. (Tr. 269-271)

Ms. reviewed the student’s IEP and discussed in detail her academic needs, management needs and related services needs. She opined that Ms. would have been able to meet the student’s needs in her class since the student’s needs were very similar to at least two of the students in her class. (Tr. 272 -274 and 276-278) She addressed how the student’s would be addressed. The student’s behavior as described on the IEP did not appear to be and appeared to be manageable in the classroom through positive reinforcement. However, if the , there are people on staff with the professional credentials and experience to conduct a ). She described how a and the approach to . Once the . Goals and strategies are developed to . (Tr. 279-282)

The student would have been new to the school; she and the teacher would have worked on a transition plan to facilitate the student’s ease into her new school. They would have reviewed the IEP, conferred with the parents and worked collectively to make her transition go smoothly. The would have been addressed by the on staff occupational therapists who would work in conjunction with the teacher and paras to meet those needs. (Tr. 284-285) (Exh. 1) She reviewed the student’s goals and discussed in detail how they could be addressed in the proposed class. She stated that the goals were measurable and could be implemented in her school. She opined that her school could provide an appropriate education for the student because the subject class had students who presented with . (Tr. 287-290 and 292-294) (Exh. 1) The unit teacher testified that parent training is available at the school via the parent coordinator and teacher. In addition, the school was awarded a grant which provides for three behaviorists who come in and work with the student and parents. Also, there are workshops held for the parents as well as individuals sessions to address the student’s specific needs and the parents’ concerns. (Tr. 295-296)

On cross examination, she stated that the general education school occupies floors one through three, with approximately students. The District program is located in the basement with ninety students. The two populations are kept apart except if a student is in an inclusion class. Ms. admitted that when she took the two and half day training it was approximately 15 years ago. The instruction was for three days approximately five years ago. In addition, she acknowledged that she had never met the student, never been to the ) and had never seen the home program or any evaluations of the student. She was not aware that the student would not have attended the summer program at her school. (Tr. 299-301) If the student had attended the school in September, her teacher would have been Ms. and the student population would have been similar to the summer class. There were functioning on a level and two verbal students functioning on first and second grade levels. Also, the September class had one classroom para and assigned each to individual students. When queried about the , from the IEP how often she engaged in these . Moreover, she admitted that she did not know what particular . (Tr. 311 -314 and 316-317)

On re-direct, the witness stated that she worked as a class and in her current position she does observations and walk through of classrooms. She noted that District has an ongoing professional development website and workshops. The summer class and the are very similar, the curriculum is the same and both teachers are effective and experienced. The teachers utilize the and . She noted that it was not necessary to know before class started how often the student engaged in because that is something the teacher would follow and develop baseline data if the with her learning. In addition, the would be determined by the .(Tr. 321-324 and 326-328)

THE PARENTS’ CASE

The parents’ first witness was , the principal at the . She holds three licenses, one as a teacher of the one in and one in . She has over ten years experience working with students and has . Her primary responsibilities as a principal are to oversee the children’s program including basis. In addition, she does observations, in class visits and coaching of staff. There are 21 students in the school, all have a , they vary in their abilities and skills. The school utilizes two primary methodologies, and components of Developmental, Individualized Relationship Based Therapy (DIR). (Tr. 334-336)

The principal noted that the school has a curriculum specialist who works with the special education teacher to create an individualized program book for each child. The book contains all the assessments done that they have done all the skill levels across different domains. Data is taken on a day to day basis, goals are generated. Similarly, information is collected for DIR and goals are generated. She discussed the different assessment tools used to determine the student’s skill levels across different domains that are used as a basis to set goals. Every class has a clinical team consisting of the teacher, teacher’s assistant, the related service providers, floor time and music therapist along with herself and the curriculum specialist. They come together as a team twice on a weekly basis and a lengthy third meeting is held once a month. (Tr. 337-339) There are four classes in the school. The school has an open door policy, which means the parents are welcomed to come anytime to be part of any session. The school does home visits and collaborates with the home team. Each year at the beginning of the term an intensive four day training session is held. It focuses on different issues, this year it was TEACCH and behavior management skills. Weekly in depth training is done and consultants are brought in. Currently, the student is in a class with four other children and five adults. The student receives training throughout the day, to keep the student actively engaged in learning. (Tr. 340-343) The student receives her .(Tr. at 346)

Students are grouped based on developmental levels, peer relationships and age. The student is in a class with students that are in the same development range that she is in and they are , . There are other females in the class and she is drawn to them. There are opportunities for peer interactions. The principal emphasized the importance of . The goal at the school is to make every minute of the day an opportunity to learn. The student is ; she needs . (Tr. 349-351) The principal noted that the school and home curriculum specialist are in frequent contact to make sure each team is on the same page. She noted that in the the . Home services are important because there are some skills that need to be worked on at home. In addition, she stated that the student does not generalize. ( Tr. 355-356)

The principal testified that she attended the June, 2011 IEP meeting via telephone. Her staff provided the DOE with any reports requested and filled out some of the IEP pages. She estimated that the IEP meeting lasted no longer than ten minutes. There was no discussion pertaining to the documents that were sent, she was told that the mandates would remain the same. To the best of her recollection, there was no discussion of goals, objectives or possible programs for the student. The DOE recommended a and her staff advocated a program. She opined that a was not appropriate to meet the student’s needs because it does not provide a sufficient amount of one to one instruction. A full time health para is not the same as trained teacher assistant. (Tr. 358-360)

Ms. stated that her school has a ten month program only and that the student needs summer services in order to stop regression. (Tr. at 363 and at 369) The methodology is applied throughout the day and data is collected throughout the day. However, discrete trials are used only on a portion of the day. In addition, DIR is applied throughout the day. She was unable to identify any research that addressed mixing the two methodologies. There is no one certified presently in ; , the curriculum specialist, is working towards certification. There are several persons on staff, including herself that have certification on some level in DIR. (Tr. at 371; 377-379 and 381-382)

The principal stated that knowing the professional qualifications of the staff in the proposed class was not of any importance, because the ratio is still inappropriate. After leaving the public school system in 2001, she worked at a private special education preschool. She provided , , to children . The principal stated that she was not aware of any state certification required to provide to students. ( 402-405)

The mother testified that she noticed that on. Her daughter was placed in an until she was and next she attended a . She and the CSE placed the child in a . She attended the for two years; she regressed. The mother removed her from the program and her for . The mother became aware of the and placed the child there. The school provided ; her daughter has made . (Tr. 582-583)

Prior to attending the June 14, 2011 IEP, she sent the CSE all the documents requested and the Academy filled out the IEP pages. At the meeting, she was told that the related services would remain unchanged and that the DOE was recommending a program. There was a discussion regarding summer camp and it was also recommended.. A few days later she received a Final Notice of Recommendation; she visited the proposed placement. It was very similar to the program that the child had attended previously. The methodologies were the same and very little individual instruction was available. (Tr. 587-590) (Exhs. 2 and C)

She wrote a letter after visiting the site and informed the DOE that the proposed placement was not appropriate. She was willing to visit any other sites and until an appropriate placement is forth coming she would continue the and home program. The mother stated that the uses individual instruction all day and that it meets her daughter’s needs during the day and the home program is necessary for her to make progress. The mother gave a detailed breakdown and costs of the . She noted that the is under the supervision of . Ms. makes sure that the home program complements the school program and maintains ongoing communication with the school, including visits to the school. Her family cannot afford the costs of the ; she referenced their tax return. The daughter is not able to generalize the skills learned in school and apply them at home. It takes her time to be able to transfer skills acquired in one location to another. Also, she is not an incidental learner; every skill learned must be broken down with lots of repetition and reinforcement. (Tr. 591-595; 597-601and at 601) (Exh. G and N)

On cross examination, the mother recalled that her daughter attended a placement during the 2002-03 and 2003-04 school years. The mother acknowledged that her daughter has made progress, but noted that she is still a slow learner with a lot of interfering behaviors and still is not an incidental learner. The IEP and FNR came together; she did notice that the IEP had fewer pages than what the had submitted. She thought the CSE found it unnecessary to include all the goal pages. Moreover, there was no discussion regarding the goals at all during the IEP meeting.(Tr. 606-609) She stated that she was open to CSE recommendation and visited the proposed school for about one hour.(Tr. 611-612) Her while in the was manifested by her from her environment into her own world. She lost skills in several areas.(Tr. 613-614)

The parents’ next witness was Dr. , who is a board certified behavior analyst and the director of . She explained that her duties as the director entailed everything from working directly with students, training staff and attending to the overall administration of the operation. Also, she writes up s, attends CSE meetings, provides direct service to children and parents as well as home based consultation services. In addition, she provides consultation services to Districts. She noted that she provides indirect consultation services to the student; she does observations of the student in school and at home. She supervises the student’s home program, directing the home providers how to run a specific teaching protocol. Typically she does a home visit twice a month; she usually stays two to three hours. She goes to the school once or twice a month, the observations run for an hour to an hour and a half. Dr. has worked with the student for two years. (Tr.653-655 and at 657) She reviewed some of the student’s as well as . She discussed in detail some of the areas that are being worked on, such as so that she may make requests and play activities. The student has . (Tr.662-664 and 66-668) Some of the gains made this school year are . She has made progress in the ; she is now able to . The student has made improvements with . (Tr. 669-672)

The , they use a lot of . related service providers in school to obtain suggestions . coordinator has come to the child’s home a couple of times.(Tr. 683685)

Dr. opined that she believes is an appropriate placement, they have staffs there who know how to use effective teaching strategies following . They know her well and have a good rapport with her. The school emphasizes working on . The school is very cooperative and share the data gathered on the student and discuss what’s working well and what needs to be to be adjusted. The student continues to need the because she has major . The student still needs a lot of . She needs . In addition, she stated that a she needs in order to progress and does not provide (Tr.692-696 and at 699)

Dr. explained the proper way to collect data and graph on discrete trials using Proper collection of data and discrete trails enables one to track the acquisition of a particular skill set that has been targeted and to obtain an accurate picture of her progress or to determine what is appropriate to work on next. In order to get a clear picture of her progress, you have to review both the graphs and task analysis to see if she is having a problem with some steps or if she has mastered a particular skill. (Tr. 700-703) If the student has a variable performance in performing a skill, she would draw a trend line on the graph to determine if . She further refined the term variability as not performing in a consistent manner. One day she .(tr. 711-713 and at 715)

In some instances, they have been successful with reducing variability pertaining to some tasks by changing something in the environment. The student struggled with using a soap dispenser when washing her hands due to her . They changed the and then she started trending upwards. She identified other skill areas where there was variability in the child’s performance. (Tr. 717-718) She stated that she was aware that the school used DIR, she has little familiarity with it and does not adhere to it. The home and school programs have many similarities but there are some differences. It is not her goal to maximize the student’s progress; it is to insure that the child makes progress and becomes more independent.(Tr. at 722 and 733-735)

testified that she is the student’s current teacher; she has worked with her for one year. Her duties as a classroom teacher are student’s IEPS. She directs the team in the classroom on providing instruction and works with the providers on the student’s goals. She communicates with the parents and home providers for further assessments and to move the student along in achieving her goals. The classroom consists of five students including the subject student and all students in the school are instructed on an individual basis. She provided a detail overview on what a typical day in school looks like. There is a rotation of instructors and activities. (Tr. 446-449) The student struggles with her communication skills. Although, the student is eager to communicate with other people, her articulation is not clear and people are unable to understand what she is saying. The student is using the and she has just completed . (Tr. 451-452)

The teacher discussed some of the gains the student has made this year, in the area of . Her , she is able to . The student is progressing with her , . Her ability to generalize skills accomplished with one person in a specific area to doing so with others in different areas. (Tr. 453-455 and 456-459) The student’s academic needs continue to be , which facilitate her to achieve in and . She is working on she is able to . (Tr. 460-461)

The student is improving in accomplishing goals developed for her; she is improving . She has improved in her her . She is , . (Tr. 462-463) She is learning from different instructors and DIR instructors. The instructors rotate throughout the classroom. The teacher meets four times a week with all of the student’s instructors to discuss the student’s progress and once a week the entire team meets which includes the instructors as well as all the providers. The team members leave notes and email each other on an ongoing basis. In addition the teacher noted Dr. who oversees the , has come to the school, twice in the last five months. Also, Dr. , follows up monthly via telephone, to confer with , the school’s expert. Ms. remains in communication with the family on a daily basis via a daily report which includes information from her, instructors and providers. She stays in touch with the family by email and phone. (Tr. 464-467 )

The teacher explained that the student continues to need because she has a . Also, if the child is going to be able to achieve her goals, she needs appropriate instruction. The teacher opined that the student was appropriately placed at the because it facilitates the child’s learning and growing in the way that she needs. She discussed in detail her knowledge of the child’s and stated she believed that it was appropriate to meet her needs.(Tr. 467-468) She discussed data collection at her school, how it is done and the analysis process.(Tr.476-478)

The teacher acknowledged that she attended the June, 2011 IEP and identified all the pages she drafted for the IEP. She noted that the goal pages were drafted by her and/or drafted by the child’s providers. She recalled that she was vehemently opposed to the recommendation because it would not meet the child’s needs, it was highly inappropriate. She explained that the child has a challenge with herself from grabbing, especially at pictures hanging up or different papers. Both behaviors are shaped into upon whatever her present level is in any area. (Tr. 479-482 and 483-486)She did not specifically recall someone making a recommendation for a health paraprofessional; however she noted that the child does not have health needs that require a . She requires someone who is academically trained to instruct her and to facilitate her learning. The teacher opined that the student’s goals could not be appropriately implemented in a setting since the only appropriate instruction for her is instruction. (Tr. 487 -488)

On cross examination, Ms. stated that the students in her class have been together all year and their ages ranged from . Three of the students in the class are girls and there is one boy.(Tr. 494 -496) Only one student is and the other students to the extent they . She confirmed that she is the only certified special education teacher in her class. (Tr. 502-504) She does not hold any certifications in . There has been one instructor change in her group due to his personal needs; he was replaced with another person. (Tr. at 513)The teacher explained that the entire time that she has worked with the student, she always had the home program and therefore she cannot gauge what effect, if any, the has on the child’s progress. However, “my sense is that the she only benefits from as much instruction as possible in all environments. (Tr. at 544and at

545) She opined that goals in the IEP were appropriate; the placement would be inappropriate. (Tr. at 554)On re-direct, the teacher testified that there are inconsistencies in her learning and that is the norm for her and any individual with global developmental delays. “ Individuals with global developmental delays need a lot more time, a lot of more repetition and a lot more direct instruction”.(Tr. at 564)

The parents’ final witness was Dr. , who has worked with the student, on a yearly basis, since 2006 when she conducted an observation of the student. Dr. testified that she has a Masters in Special Education, a Ph.D. in Health and Behavior services and is a board certified behavior analyst at the doctoral level. She has a New York State license for general education, special education, school administration and supervisor license and a math license.(Tr. 771-772)She stated that she works for school districts, setting up programs in schools and provided home based programs after school. She provides staff training, parent training and educational consultative support to parents. Also, she teaches at at the graduate level in their special education program.(Tr. 776777)

She conducted her initial observation of the child in 2006; the child had not yet started in any school program. At that time, the child had . She had Subsequently, she conducted observations of the child twice in the 2010-11 school years, once in March at school and again in September at home. She discussed her March 21st, 2011, hour long observation at the child’s current school. It was at lunch time, the teacher, teacher assistant and all of the student’s providers were gathered with the children. She was able to speak to each of them; they reported the child was making . There are twenty-one students in the school and they eat lunch together with the staff. The lunch is an instructional lunch, the , under the guidance of the worked with the child throughout the period. The student appeared more sociable and engaged in socially appropriate behavior more so than in previous observations. She is now able to say hi and make appropriate eye contact when she greets someone. She was speaking more, she was able to , and those were some of the gains made this school year. (Tr. 778-780 and 782784)(Exh. 12)

She found the school to be extremely appropriate for the student; the school is small and it provides her with the intensity and consistency that she absolutely requires. The staff are either certified or working in a Bachelor’s program in their particular discipline. Overall, the staff is very skilled and knowledgeable. In her report, she noted that the child’s rate of and during periods of not receiving training she will regress in her skills. The slower the rate of progress typically gives rise to a , if the student does not have daily instruction.(Tr. 787-789)

Dr. discussed her home observation, done on September 7, 2011. She noted that the home team created a lot of the student’s programs, the materials they designed are more suitable for a teenager and they do not use . A was being used to improve . The student is . She has specific chores assigned to her. She has improved in her ability to . The as well she can follow. The . (Tr. 792-795 and 796-797) (Exh.M)

Next, Dr. and the mother visited the proposed placement, on June 27, 2011.She found the placement would not be appropriate for the student for several reasons. The placement offered very limited individual instruction, maximally 40 minutes per day. The student requires an intense one on one format to be able to progress. The methodology, requires students to work in groups, small or large and some level of independence. The student doesn’t have any level of independence in any area. The school does not have any consultation from a BCBA. There was limited sensory equipment in the gym.(Tr. 813-815 and 817-819) (Exh. E) She opined if the student was placed in a program she would regress. (Tr. at 821)

Dr. stated that she has observed the student approximately ten times since 2006. The time for each observation ranged between one hour and a hour and a half, two hours. She has never observed her when she was not receiving home instruction.(Tr. 825-

828) She reviewed and discussed her home observation report dated September, 2011. She noted what the student had mastered and some of the programs the student was working on at that time. She repeatedly stated that she could not be specific about which step or steps were mastered pertaining to a particular task without seeing the data and graph which showed each task, broken down into steps.(Tr. 836-840 and 854-857) (Exh. M)

Next, she was cross-examined on the school observation report, dated March 31, 2011. She testified that she did not recollect, from a year ago, how much time she spent with each member of the student’s team; she wrote down what she thought was the most important aspects of their conversation.(Tr. 862-864) (Exh. 12). She was aware that the teacher was a certified special education teacher and that the teacher assistant was close to completion of her undergraduate work in child psychology. She did not make inquiries regarding the other team members as to their qualifications and work experience.(Tr. 863-866)She was not able to observe any academic time in the classroom because the students were not engaged in any academic activities when she visited She based her conclusion regarding rejecting the proposed placement, on what the teachers, dean and her personal knowledge of . She stated that she taught using the in the 90s. She testified that Dr. explained to her that the student while at was working on a program similar to the . (Tr. at 868 and 870-872)

During re-direct, Dr. testified that she has seen many District , classrooms. In addition, she supervises student teachers through Queens College, who teach in Queens, class. Also, she has graduate level special education students who are placed in special education classes. She has been in many classes on behalf of her students.(Tr. at 884)

FINDINGS OF FACT AND DECISION

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482)2 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22).3 An IEP is a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]).

A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). School districts are of course also required to comply with all IDEA procedures, but not all procedural errors render an IEP legally inadequate (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]).

The Second Circuit has determined that "a school district fulfills it 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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]); in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]).

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 parent were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra, 427 F.3d at 192). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 37071). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id. at pp. 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148).

In the instant matter, the parents alleged that the DOE committed significant procedural and substantive failures resulting in the denial of FAPE to the student. The parents alleged the DOE failed to provide the student’s parents with a finalized IEP; failed to discuss goals at the IEP meeting and failed to treat the parents as equal members of the IEP team. The IEP sent to the parent was missing several of the goal pages. The parent acknowledged that she was aware that the goal pages had been drafted by the child’s school and that there were more pages since the private school sent the draft to her to forward to the CSE. However, when she received the IEP in the mail, she did not contact the CSE to ascertain why she was not provided with a complete IEP. She acknowledged that at the IEP meeting there was no mention of removing any goals and during her testimony she did not indicate that the goals were not appropriate.(Tr. 607-

609) The parent’s allegation that she was not treated as an equal partner of the IEP team is refuted by Ms. ’s testimony, the school who lead the IEP meeting. (Tr. 121-123) I find that the aforementioned allegations do not individually or collectively constitute a failure to provide a FAPE.

The parents allege that the DOE predetermined the student’s placement and program and that the CSE unilaterally decided outside of the IEP process to place the student in a placement. The parents argue that all the reports and discussion recommended a instruction and that the DOE did not weigh her concerns. Also, they note that the IEP fails to indicate the date it and the FNR were sent to the parents. IDEA regulations permit school districts to engage in “preparatory activities” without the parents’ presence. See 34C.F.R.§§ 300.501(b)(1) & (b)(3). The district is obligated to consider the parents’ requests, but, they are not obligated to follow them.(T.P. v. Mamaroneck Union Free School Dist., 554F.3d 247(2dCir.2009) I find that the omission of the date regarding the IEP and FNR to be procedural errors and that there was no predetermination of the child’s educational program and placement.

The parents alleged that the DOE’s placement is inappropriate to meet the student’s needs. The record is replete with testimony, reports and evaluations that all pointed to the student’s need for an intensive instruction and a home . The record shows that Ms. , principal at the child’s school, testified that it is crucial for the student to receive and without it she would not be a learner. She noted the goal of the school is to make every minute of the school day “a learning opportunity”.(Tr. at 350) She noted the student is .(Tr. at 351)

Dr. , who has worked with the child from 2006 to the present and she has prepared ten or more observations of the child over the years reported the student “continues to present with that impact her ability to attend a general education, or even a special class in a general education school.”(Exh.M) In addition, she stated that a placement is not appropriate for the child for several reasons. The placement offered less than an hour of individual instruction per day; the requires students to work in groups, small or large and some level of independence. The student does not have any level of independence, everything she does is supported.(Tr. 813-814) Also, it should be noted that Dr. is very familiar with District , placements since she teaches graduate and undergraduate special education students who are placed to teach in settings.(Tr. at 884)

Ms. , the student’s current teacher at the , has taught recently taught in a DOE classroom and vehemently disagreed with the proposed placement because the child is highly distractible and prone to . However, those may be “ . (Tr.at 486) Ms. Kraham, DOE social worker, conducted an observation of the student and reported that the child” continues to need this program for the structure and it gives her.”(Exh. 7) I find that the proposed is not appropriate for the student. The DOE failed to provide the student with a FAPE for the 2011-2012 (12month) school year. In summary, the additional allegations of procedural errors asserted were either not supported by the record, or did not rise to the level of a denial of a FAPE. Next, the parents must demonstrate that the parental 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.” See Frank G. v. Bd of Educ. of Hyde Park, 459 F.3d356, 365(2d Cir. 2006) (citing Rowley). Cert. denied, Board of Educ. of Hyde Park v. Frank G. 128 S. Ct. 436(2007)

I find that the parents satisfied their burden of proving that the provided the student with educational instruction especially designed to meet her unique needs. The record indicates that the provided the student with an intensive program, combined with DIR Floor Time methodology, with individualized instruction and with related services. The school addresses the student’s and makes her available for learning by providing individualized instruction which is able to keep her focused on the task at hand and learn at her own pace. The student has made slow and steady gains since the school year began and continues to do so.

I further find, based upon the testimony and documents in evidence, that a home based program is an appropriate supplement to the based on the student’s severe global delays across the board; and her difficulty with generalization and regression. However, I am not persuaded that the evidence supports such an extensive home program of 25 hours services and 8 hours per month of consultation/supervision services. The child has been attending the and receiving the home program together since November, 2007. The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379 ; Walczak, 142 F.3d at 132).

I find that the parents cooperated with the CSE; the parents provided the CSE with all the reports from the school and evaluations that were done; and visited the proposed placement. However, the reasonableness of the cost of services is a factor to be considered and may limit the parents’ relief for reimbursement/direct funding. The cost of the home program is approximately $121,000. of the $240,000 plus educational program. (Application of a Child with a Disability, 11-031); Application of a Child with a Disability, 00-060).

The parents request for funding for and 40 hours of training for an individual counselor/paraprofessional, to accompany her to camp for the summer of 2012 is premature. The CSE has not yet had an opportunity to conduct its annual review and develop an IEP for the 2012-2013 school year.(Application of the Dep’t of Educ.,Appeal No.07-037).

ORDER

For all of the foregoing reasons, it is hereby ordered:

1) The DOE shall continue funding the tuition, costs, and expenses at )

including all related services provided therein for the 2011-2012 school year, for a total of $79,500.;

2) The DOE shall provide 14 hours per week of services and four hours per month of consultation/supervision, on a 52 week basis.

3) The DOE shall provide special education transportation with a transportation paraprofessional or guardian, to and from school, on a 52 week basis. Dated: April 9, 2012

THERESA R. JOYNER,ESQ.

Impartial Hearing Officer TRJ:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON

PARENT

A Demand for Due Process, 6/29/2011, 7 pages B Statement of Agreement, 11/8/07, 4 pages C DOE, IEP, 6/14/11, 13 pages D IHO Decision, 8/30/10, 5 pages E Proposed Placement Report, 6/28/11, 4 pages F Letter to New York City Department of Education from Parent, dated 616/11, 3 pages G Letter to New York City DOE from Parent, dated 6/27/11, 6 pages H Program Description, , undated, 1 page I Enrollment Contract 2011-2012, 3 pages J Affidavit of Payment 9/12/11, 1 page K Attendance Record 9/12/11, 1 page L Provider List Undated, 1 page M School Observation, 9/12/11, 5 pages N 2010 Tax Return, 14 pages O Tax Return Signature Page

DEPARTMENT OF EDUCATION

1 IEP, dated 6/14/2011, 19 pages 2 Final Notice of Recommendation, 6/17/11, 1 page 3 Progress Report, 5/20/11, 9 pages 4 report, 2/20/11, 2 pages 5 report, 5/18/11, 2 pages 6 Report, 1/26/2011, 4 pages 7 Classroom Observation, 6/5/2011, 1 page 8 Evaluation, 5/11/2006, 3 pages 9 Examination, 5-27-2011, 3 pages 10 , 4/7/11, 3 pages 11 Social History, 11/7/08, 2 pages 12 School Observation Report, 3/31/2011, 5 pages 13 Notices of IEP Meetings, 5/6/2011, 3 pages 14 Due Process Response, dated,7/8/11, 3 pages 15 Amended Due Process Response, 9/15/11, 3 pages