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 14, 2011

August 18, 2011

October 6, 2011

December 14, 2011

December 21, 2011

Record Close Date: December 28, 2011

Hearing Officer:

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

Attorney — Student

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ONAUGUST 18, 2011

Attorney — Student

Parents

District Representative, CSE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 6, 2011

Attorney — Student

Parents

District Representative, CSE — DOE

School Psychologist, CSE (via telephone) — DOE

Unit Coordinator, (via telephone) — DOE

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

Attorney — Student

Parents

Therapist (via telephone) — Student

Speech Supervisor, — Student

(via telephone) — Student

Assistant Director, — Student

(via telephone) — Student

District Representative, CSE — DOE

Teacher IEP — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 21, 2011

Attorney — Student

Parents

Therapist — Student

Therapist — Student

Therapist — Student

District Representative, CSE — DOE

The parents of ., (“ ”) by their attorneys, , P.C., requested an impartial hearing on June 29, 2011. I was designated to hear this matter on July 1, 2011 pursuant to 20 U.S.C. Section 1415(f)(1). An impartial hearing commenced before me on July 14, 2011, on the issue of pendency.

By agreement of both parties, I ordered that shall receive the following program during the pendency of these proceedings:

1. Tuition at :

2. Special Education Transportation with a ride of limited duration that is temperature controlled;

3. Therapy, 6 hours per week, at a rate of up to $ per hour;

4. Therapy (“ ”), one session per week, at a rate of up to $ per session;

5. (“ ”), one hour per week, at a rate of up to $ per hour.^[1]

A hearing on the merits continued on August 18, 2011, October 6, 2011, December 14, 2011 and December 21, 2011. The compliance date was extended on four occasions, due to the unavailability of witnesses, and the extensive testimony and issues of the hearing; and for other reasons documented in the record. The compliance date was last extended to January 11, 2012. (IHO Ex. I)

is an year old boy with a classification of . His classification is not in dispute. (Par. Ex. A) Since July 2006, he has attended (“ ”) a private special education school, for the past five years. (Par. Ex. H).

On February 10, 2011, the Department of Education (“DOE”) conducted a psycho-educational evaluation of . It was reported that is essentially , and communicates using a , and . He , and takes to . (Par. Ex. H, p. 1). He was described as , and . He was accompanied by his (“ ”) therapist for the evaluation. His was unable to be formally assessed because of his short attention span and impulsivity. Based upon the evaluation, his functioning was estimated to be in the deficient range. He was able to recognize colors and shapes, and could complete up to 10 piece puzzles. He was unable to identify alphabet letters or numbers. On the on the Vineland-II, he scored in the . It was noted that he had made progress. (Par. Ex. H). Ms. , who performed the evaluation, testified that she estimated academic level to be on a level, which is the lowest level she is able to indicate. (Tr. p. 147, 165). She testified that the therapist helped translate ’s’ . (Tr. pp. 151-152). Ms. testified that ’s distractibility could be addressed by a paraprofessional, and . She noted that had been recommended for a . (Tr. p. 157).

On April 7, 2011, the Committee on Special Education (“CSE”) met to review ’s program. Ms. , a , , a special education teacher who served as the district representative, as well as the parent, a school social worker, a parent member, and a teachers and two therapists from , also participated in the meeting. (Par. Ex. C-2).

The CSE recommended placing a Special Class in a Specialized School (District with a ratio of , with related services of (5 x 45 individually); (5 x 45 individually); and Therapy (“ ”) (2 x 30 individually). In addition, was recommended for a full-time health paraprofessional and a registered nurse for .20 of the day. (Id. at 20) Twelve month programming was also recommended. (Id. at 1)

Ms. testified that, in her opinion, the recommended program was an appropriate educational setting for , as it would provide a lot of support and peer interaction. (Tr. p. 148). She testified that the present performance section of the April 7, 2011 Individualized Education Program (“IEP”) was written by her, based upon her evaluation of , and that it is an accurate representation of ’s strengths and weaknesses. (Tr. p. 149)

’s IEP reflects that while he has made progress in , he continues to demonstrate skills; and that he is currently using an array of , including one to two word phrases, gestures and the . (Par. Ex. C, p. 4) ’s mother reported that he has a diagnosis of , and has a . His and he . He is not . (Id. at 6).

His IEP includes goals for improving , increasing , improving pre-math readiness skills, , developing skills, skills by story , improving skills, precision and , and skills, social and skills, and skills. (Par. Ex. C. pp. 9-17).^[2]

’s IEP also includes a (“ ”) to address his difficulties with transitions, following directions and focusing, his , skills (Id. at 21).

Ms. , the District Representative at the April 7, 2011 review, testified that the recommended program was appropriate because it addressed ’s considerable educational, , motor issues and in a therapeutic environment, with the supports that he needed. (Tr. p .182) She testified that the was developed in consultation with the participants in the CSE review. (Tr. pp. 189-190; DOE Ex. 4) The IEP goals were developed by the psychologist who tested him; and in consultation his related services providers, the parent and the school. (Tr. p. 192). The CSE did not consider after school services, because it was felt that the school program provided sufficient support and did not require further enrichment. It was felt that a program would limit his socialization skills and stifle his growth. (Tr. p. 197).

Ms. testified that the recommendations for the levels of and were based upon the levels provided at . (Tr. pp. 199). According to meeting minutes, both services were increased as per therapists’ requests. . (DOE Ex. 6). Parent was not added as a service, because it is programmatic in District programs. (Tr. p. 202). The CSE prepared an and because would not provide the one it used. (Tr. pp. 224, 227)

The DOE presented evidence that it provided a Notice of Recommended Deferred placement on April 7, 2011, deferring ’s placement until July 5, 2011, so as to not disrupt his current placement. (Par. Ex. G). On June 15, 2011, the parent wrote to the CSE stating that as they had not yet received an offer of placement, they intended to continue ’s placement at with additional services (1 hours per week) (30 minutes per week) and (one hour per week). They also accepted the services of the Registered

Nurse and Health Paraprofessional. (Par. Ex. F). On the same date an offer of placement was mailed to the parent with a recommendation that attend . (Par. Ex. E).

On June 23, 2011, Mrs. . wrote to the CSE stating that she visited the recommends site on that date. She wrote that she was informed that the school is not accepting any students until September; that that will not accept any students younger than . She stated that she was informed that is too young to attend the program. She set forth her other objections to the program including that lack of instruction; the large cafeteria area, the lack of a and the lack of parent training. She reiterated the parents’ plan to continue at with and , and and to seek funding from the DOE. (DOE Ex. 6).

, the unit coordinator at (the recommended site), testified that she is a licensed teacher, and that she has a master’s degree in school building administration. (Tr. p .34) is a school with students, placed in a variety of special education programs. (Tr. p. 35, 69). The class which would have attended, if he accepted the recommended placement, was taught by . Mr. has a bachelor’s degree in education and is pursuing his master’s degree. He has a supplementary certification. He received training over the summer on the program. (Tr. p. 37). The school includes a full-time nurse and related services staff including an , a and therapists, who push into the classes. (Tr. p. 38, 57). The provides stimulation to the students within the classroom. (Tr. p. 55). All of ’s IEP mandates could have been fulfilled at the school. (Tr. p. 108). would have been the therapist assigned to . She has training in working with a . (Tr. p. 109)

Ms. testified that the curriculum within the classroom is modified and differentiated, based upon the student’s needs. The classroom uses the methodology which involves the use of visual schedules, and work stations, where the children learn a skill and then practice the skill independently. (Tr. pp. 40-41) Work stations last approximately 5 to 15 minutes, and occur three times per day. A task is chosen which the child can achieve and do independently. (Tr. p. 83). In ’s case, this might consist of completing object patterns, matching pictures related to the curriculum or recognizing colors or shapes and completing a puzzle. (Tr. p. 97). Individual instruction also occurs three times per day, for a total of thirty to forty-five minutes. Individual instruction can be given by a teacher or a paraprofessional. (Tr. pp. 84-85). occurs at least twice per day for thirty minute sessions. (Tr. p. 79). teachers deliver additional group instruction, once per day for forty-five minutes. (Tr. p. 88). Last year, Mr. was a cluster teacher, serving different classes. This is his first year as a teacher in charge of a 6:1:1 class. (Tr. p. 64) A would have been assigned to and the providers in the school would have been able to address his IEP goals. (Tr. p. 58). Students eat lunch in the cafeteria, with their paraprofessionals, and various teachers. (Tr. p. 89).

Ms. testified that she reviewed ’s IEP, and the evaluation, an assistive technology evaluation and a (“FBA”) (Tr. pp. 43-44). She stated that a seat would have been available for him in Mr. ’s class, starting July 2011, and that the goals in ’s IEP were similar to the types of goals that the students in the class work on. (Tr. pp. 45,

56) She stated that his abilities are similar to those of the students in the proposed class. (Tr. pp. 58-590). She testified that the school day starts with breakfast, and writing, Get ready to (a program which is a sensory program to stimulate the students), literacy, math, science and social studies, exercise and games, lunch, and then more classwork. would leave the classroom to receive his related services. (Tr. p. 46, 55). The and share a large room which has sensory equipment. (Tr. p. 47). She testified that all of the children in the class are , with a range of . Some of the students have a , or other , which are the responsibility of the , (Tr. pp. 48-49).

There are students in the proposed class; boys and girl. (Tr. p. 98). They have academic abilities ranging from a - to a level in reading and math. (Tr. p. 49). They have minimal social skills, and need to work on social interactions, calling each other by name and taking turns. Mr. works on these skills within the curriculum. (Tr. p. 99). The students were years old. would have been accepted to the class based upon the fact that he was before the end of the year. (Tr. pp. 53-54 including the use of a are used to address , such as distractibility. The comes to the school to observe the children, and work with the parents, at home, to help them deal with some of the behaviors. If a parent requests assistance with a behavior, the school can refer her to the behaviorist to do an assessment. (Tr. pp. 50-52, 93).^[3] A Parent coordinator runs workshops for the parents. The workshops were not described. (Tr. pp. 111-112)^[4] Mr. sets aside time in his schedule to work with the students individually. (Tr. pp. 52-53) The nurse makes the staff aware of any so that the child is closely monitored. (Tr. p. 54) A schedule would be set up by the teacher, and implemented by the health paraprofessional. (Tr. p. 106)

’s distractibility would be addressed with the assistance of his one-to-one health paraprofessional, using a reinforcement book. Mr. would also redirect him back to task. (Tr. pp. 93-95) For example, if the goal were to have the student attend for five minutes, a penny is given for each minute that a student attends; and then after receiving five pennies, the student would get to choose a reinforcement of his choice. (Tr. p. 16). Academic progress is marked in data charts. (Tr. p. 128). Socialization skills may also be charted. Charts are reviewed at team meetings. (Tr. p. 129).

Ms. ., ’s mother, testified that has received special education services and support since the age of three months. He began attending in July 2006. (Tr. p. 390). She testified that she participated in the entire April 7, 2011 CSE review by telephone. She attempted to have the review rescheduled, due to the fact that had two days prior to the review, but her request was denied. (Tr. p. 396) She does not recall if the BIP was discussed at the meeting. She recalls discussing the recommended program. She testified that she requested additional services, and that her request was granted, with an increase from 2 x 30 minutes to 5 x 45 minutes. She requested 6 x 60 minutes; and was granted 5 x 45 minutes. (Tr. p. 397; Par. Ex. C p. 20) Her request for one-to-one instruction was denied. (Tr. p. 422)

On June 23, 2011, Ms. went to visit the recommended site with one of ’s therapists. (DOE Ex. 6). She was informed that could not be accepted to the school, since no one younger than could be accepted, and he was only at the time. (DOE Ex. 6; Tr. p. 400). She testified that she observed hardly any instruction, and was told that would receive one-to-one teaching twice each day for fifteen minutes. She was not told anything about parent training. She found the therapy room to be lacking in equipment, and distracting, with a lot of children in a small area. (Tr. pp. 400-402). After her visit to the school, she sent a letter to the CSE rejecting the site, and informing the CSE that would not be accepted to the site, based upon his age. She did not receive a response or a new site offer. (Tr. p. 404).

Ms. . testified that is making meaningful progress at . He returns home from school at 3:30 P.M. and requires a great deal of structure. (Tr. p. 404). If left to his own devices, he will engage in a lot of behaviors such as and . She has a schedule for him for the activities of the day, as he needs to know what he is going to do. (Tr. pp. 404-405). Four different therapists provide services to on different days; comes on Sunday and Friday or Saturday. (his classroom teacher) comes on Mondays and Wednesdays. comes on Tuesdays. On Friday, they go for PROMPT therapy with Ms. , and on Thursdays, he receives for one and one-half to two hours. (Tr. p. 406). ,a former therapist, sometimes fills in as well. The come for two to two and one-half hour sessions. (Tr. p .407). They work with him at home and in the community, taking him to stores and teaching him the steps for shopping. At home, the whole family participates, and the service providers support them in giving dinner, and focusing him to the task at hand. (Tr. pp. 410-411). The teachers have given Ms. . training in teaching to wait, by setting a timer, and in speaking with him in a positive way that encourages cooperation. (Tr. pp. 413-414).

is still not independent with toileting or brushing his teeth. Ms. . receives training in instructing him, very slowly, in the steps of bathing. (Tr. p. 415). On days when does not have a home teacher, Ms. . creates an activity schedule for him, and he is improving in his ability work from it independently. (Tr. p. 416).

On July 1, 2011, the parents signed a contract enrolling at for the 2011-2012 school year, from July 1, 2011 to June 30, 2012, at a cost of $ (Par. Ex. S). As of November 8, 2011, $ of the tuition was paid, with a balance due of $ (Par. Ex. DD). Ms. . testified that the parents cannot afford to pay the tuition. Payments made to date have been from checks through a free loan society. The parents are obligated to repay the free loans within the year. (Tr. p. 419). The parents are also unable to pay for their home therapists. Payments to date have been made from the free loan society. The parents are obligated to repay all of these loans. (Tr. p. 420).

, the Educational Director of , testified that she is certified as a Special Education teacher and in School Administration Supervision, and is working toward certification as Board Certified Behavior Analyst. (Tr. p. 310). She explained that is a method of teaching using reinforcement procedures, which is data based. (Tr. p. 312). As educational director, Ms. supervises staff and assists parents by providing training in the school, and at home, when necessary. (Tr. pp. 313-314).

is a school which serves students diagnosed with disorder. The school has nineteen students. (Tr. p. 314). is placed in a class with students, a lead teacher, four classroom teachers and a therapist. He is grouped in the class based upon his age and functional level. Three of the teachers are certified. All of the teachers have a Bachelor’s Degree, and some background in and within the field of disorders. The lead teacher, , has been working at as an teacher since June 2008. (Par. Ex. BB). (Tr. pp. 317-319). He is responsible for the child’s curriculum, for updating and graphing. Different teachers are responsible for different parts of the curriculum. Working with different teachers allows the students to generalize skills. (Tr. p. 320).

Of the students in ’s class, are verbal, is non-verbal, and is , and uses his . (Tr. p. 322). His are between and , and he in his . (Tr. pp. 323-324). In addition to being , ’s include leaving a situation, demonstrating inflexibility with changes in the environment and inappropriately. These behaviors are addressed through various plans. (Tr. p. 325). He receives high rates of reinforcement for . He is re-directed when he ; and instructed regarding what is . (Tr. pp. 326-327). The class goes on weekly trips to the community. (Tr. p .328).

’s is delivered through . He receives group instruction using skills he has already mastered, such as imitation skills. He receives support during group instruction, and data is taken. (Tr. pp. 331-332). During the current school year, has made progress in his . He has also improved in controlling his during trips in the community. (Tr. p. 340). follows his activity schedule and is in doing puzzles, sequencing and patterning. (Tr. p. 341). He has also showing some phonemic awareness. (Tr. p. 342). He is making slow but steady progress in his , and in his . He has mastered some discreet components of ; but he is not yet independent in these skills. (Tr. p. 343). , has improved his ability to attend to task, and shown a reduction in swiping and grabbing behaviors. Overall he has shown progress. (Tr. pp. 344-345).

According to Ms. , he is appropriately placed at because he requires an intensive amount of programming with high levels of reinforcement. (Tr. p. 347). requires additional after school services to learn to use the skills he is taught, in a very systematic way, within the natural environment. (Tr. p. 348). She testified that she did not provide ’s behavior plan to the DOE due to concerns that its staff was not trained to implement it. (Tr. p. 353) Reviewing the contained in ’s April 7, 2011 IEP, she stated that some of the goals set forth in the were “okay.”(Par. Ex. C, p. 21; Tr. p. 358).

, a certified therapist with certification,^[5] testified that she has worked with , on and off since 2005. She testified that he has a great desire to communicate, but is held back by his motor abilities. (Tr. p. 247). She testified that during periods of time when has been without the service, she has noted regression, and it takes a month for him to regain skills that are learned. (Tr. p. 251). Since September 2011, she has provided with therapy once per week for thirty minute sessions. Her fee is $95.00 per session. She is in communication with ’s at . In addition, she reviews skills with his mother, who practices them with . Since September 2011, has developed awareness of where his and is better able to and go into at different . He is maintaining formation . He is also rounding his . (Tr. pp. 252-255). In August 2011, Ms. developed goals for the coming year. (Par. Ex .U). She testified that he needs the therapy she provides, in addition to the provided at school, due to the scope of his issues. (Tr. pp. 254-255). According to Ms. , meaningful progress for is attaining some new movements with his and being able to implement with new words. (Tr. p .257).

, the Pathologist supervisor at , testified that she is certified as a Pathologist and in . (Tr. pp. 263-266). She works with once per week, collaboratively with another therapist, (Ms. ) who also has training in . (Tr. p. 266, 287). receives five sixty minute individual sessions per week of . He requires this level of service to address his difficulties with domains including skills, motor , oral , skills as well as play skill delays. (Tr. p. 270). Fifteen to twenty minutes of each session is devoted to PROMPT treatment. (Tr. p. 300).

Ms. and Ms. address ’s behaviors, which include difficulty with attending and focusing, and . These behaviors are addressed through techniques developed by behavioral specialists at the school. (Tr. p. 272). communicates primarily with his . He also uses and . (Tr. pp. 275, 277). His greatest challenge is his difficulty with , as well as his receptive skills. (Tr. p. 278). Since July 2011, has made progress in , language processing skills, understanding linguistic concepts, temporal sequencing, and expanding his expressive vocabulary with the use of his . (Tr. pp. 282-284). He has also shown improvement in his conversation skills and in within the motor component. (Tr p. 285-286) School staff programs the and provides extensive training to the parents in its use. (Tr. p. 289). She testified that, in her opinion, is appropriately placed at She testified that she participated in the April 7, 2011 CSE review team and communicated to the team that requires instruction to address his , , and and functional communication needs throughout the entire day. (Tr. p. 296).

She testified that ’s group interactions occur with the support of his one-on-one instructor. (Tr. p. 306) In her report dated June 1, 2011, Ms. recommended that receive treatment five times per week for sixty minute sessions. (Par. Ex. M, p .7).

, a certified special education teacher and a Board Certified Behavior Analyst, testified that she has known for five years, both as a teacher at , and as one of his . (Par. Ex. FF; Tr. p 434) She accompanied the mother on her visit to , and was informed that could not attend as he had not yet turned . (Tr. p. 436). She observed that the recommended program provided a visual schedule and a lot of instruction in a group format, with only 20 minutes of teacher, and no data collection. (Tr. pp. 438-439). occurred during lunch (Tr. p. 440). She observed that students were pulled out for , and that there was no incorporated into the day. The appeared and . She was informed that there was no formal parent training; but that parents call if they need to speak to the teacher. (Tr. pp. 444-445).

She testified that in her opinion, the recommended program was inappropriate because requires a lot more instruction because his with his remaining on task. He also requires a great deal of structure and . (Tr. p. 446). She testified that needs to be taught , and then generalize his skills in a group setting. (Tr. p. 457).

Prior to August, Ms. provided services to . She continues to fill in for other providers, and charges $ per hour for her service. (Tr. pp. 448-450).

, a certified therapist, testified that she has worked for since 2005. (Tr. p. 462-463). She is a co-supervisor of , implementing classroom interventions, supervising other , and providing home consultation. (Tr. p. 463) services are provided in a gym, in the room, and in secluded sections of the school, hallway and the classroom. (Tr. pp. 464). During the current school year, she treats and provides in the class, which increases his functioning at school. (Tr. pp. 465, 470). At school, receives daily, for sessions lasting forty-five minute to an hour individually. (Tr. p. 466) She testified that his greatest difficulty is his , , agility, manual dexterity and his bilateral coordination. His and have improved. (Tr. p. 469). In a written report dated June 24, 2011, she recommended that due to the magnitude of his deficit, that receive five times per week for forty-five minute sessions, individually, in a (Par. Ex. K).

Since July 2011, has made progress in , following complex directions and in his ability to attend to an He is also and improved balance and coordination. In addition, he has shown improvement in his ability to grasp a writing tool. (Tr. pp. 474475). She testified that the parents need training to see that these skills are reinforced at home. (Tr. p. 477). She to once per week, outside of school, for sessions lasting from one and one-half to two hours. They work on and skills. Within the community, they work on . (Tr. pp. 478-480). In a written report dated August 6, 2011, she recommended continuation of for at least one hour per week, with the goal of using information to understand and with people and objects, as well as safety in his home and community environment, and , in addition to other goals. (Par. Ex. W). She testified that since July, she has seen improvement in his , at a restaurant, as well as increased independence in his . His have improved and he is with his . (Tr. p. 481). She charges $ per hour for her services. (Tr. p. 483).

At school, receives instruction in dressing skills, and practices riding a bike, though in a smaller space. (Tr. pp. 488-489).

, a certified special education teacher testified that she is working toward her certification as a . (Par. Ex. Z; Tr. p. 493). Since 2006, she has been employed by . Presently, she supervises the at the school, and engages in program development and curriculum planning. (Tr. pp. 493-494). Ms. testified that has delays across all areas. He learns quickly, using his to help with . She works with outside of school for two to four hours per week, in two hour sessions. (Tr. pp. 494-495). She testified that ’s therapists communicate with one another online and by telephone. (Tr. pp. 498-499). At home, she does some discreet trial teaching, but focuses more on . Some goals they work on include without engaging in , directions, playing with his and increasing independence in . They go to the store and incorporate a lot of goals including motor planning, and spatial awareness. (Tr. p. 500). She is in , and incorporates an exercise program that she created. They also work on , which is an goal. (Tr. p. 501). They always incorporate within their sessions. (Tr. p 502). She testified that since July, she has seen significant progress with independence, He continues to need a lot of reminders to complete tasks with quality, due to his impulsive behavior. He also has made progress in his ability to . (Tr. pp. 504-505).

continues to require . (Tr. p. 507). He has improved his community awareness and safety skills. She has seen when in . (Tr. p. 508). There has not been much change in his ; however she has seen an . He has also , and . (Tr. pp. 508-510). Although Ms. testified that the therapists use methods, they do not take data; but rather take . (Tr. p. 511) The parent does not accompany in the community activities, but she is later given ideas on how she can implement the same targets when she takes him out. She testified that requires home services to generalize skills learned at school and to develop the skills to become . She charges $ per hour for her services, which is the standard rate. (Tr. pp. 512-513). She testified that he benefits by having services for at least two hours per day, on days he is not receiving other services. (Tr. p. 519).

Findings of Fact, Conclusions of Law and Order

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (“IDEA”), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter, to 510 US. (1993). Appropriateness of the Recommended Program

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes goals and short-term objectives related to those needs and provides for the use of appropriate special education services. Application of a Child with a Disability, 02-014. The school district must identify a school which is capable of implementing the IEP. See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009).

I find that ’s needs were accurately described; and that the goals set forth in his April 7, 2011 IEP, which were prepared in collaboration with ’s providers, are appropriate. I also find that ’s IEP, which includes a Special Class in a Specialized School (District ), with a staffing ratio of with related services of (5 x 45 individually)

(5 x 45 individually) (2 x 30 individually); , twice per week; once individually and once in a group of two; a , a and a part-time nurse and twelve month programming provides an appropriate level of in school service for . Nevertheless, I find that the IEP fails to provide a Free Appropriate Public Education because it does not provide for parent counseling and training, as required by 8 NYCRR 200.13,^[6] or one-to-one after school programming, which requires to generalize his skills and apply them functionally.

The parents of a child with a disability are entitled to receive an offer of a specific placement with sufficient information to enable them to make an informed decision whether to accept the offer. Application of a Child with a Disability, Appeal No. 96-30. Ms. and Ms. testified credibly that they were informed that the recommended school would not accept , because he was less than eleven years old. Although Ms. testified that would have been accepted based upon his age, the record is clear that the parent communicated her concerns to the CSE immediately upon visiting the site, and that she never received a response. Inasmuch as the DOE failed to provide the parent with sufficient information to enable her to make an informed decision as to the availability of the placement to , I find that the DOE failed to meet its burden of proving that it provided with a FAPE. Appropriateness of Parental Placement

To qualify for funding under the IDEA, 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. 3d 356, 365 (2d Cir. 2006) (citing Rowley). Cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128

S. Ct. 436 (2007).

I find that the parents demonstrated that , combined with additional home based services, provided with an appropriate educational program designed to meet his unique needs. Specifically, the program provides him with instruction throughout the day, intensive intensive , and a which addresses his , and . The school also provides the parent with training and support. Based upon the record, during the current school year, has made progress in all areas of language, in improving his , and in his sensory processing skills, .

I find that requires to generalize instruction in his . Taking into account that the school provides the parents with training and support, and that has made progress in his community awareness and safety skills, I find that continuation of hours per week of therapy is an appropriate level of home services for him.

Although benefits from the additional home and , which are part of the pendency order herein, I am unable to find that he requires these services in order to make appropriate educational progress. According to Ms. ’s report, requires five sixty minute sessions per week of , which he is provided at . Furthermore, the record indicates that oral motor therapy through PROMPT trained therapists is a large component of the he receives at school. Therefore, the parent’s request for DOE funding for continuation of one session of outside of school is denied.

Similarly, the therapy progress report in evidence recommends that receive five forty-five minute sessions per week of , which is what he receives at . While I find that it is beneficial for to receive home support for his daily living skills and safety awareness, Ms. testified that this is part of what is provided by his therapists. Therefore, the parent’s request for continuation of one hour per week of home is denied. Equitable Considerations In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007]. The record is clear that the parents cooperated with the DOE throughout by providing information, participating in the CSE review, promptly viewing the recommended site and communicating their concerns to the CSE.

Order

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

1. The DOE shall reimburse the parents for payments made toward ’s tuition at for the 2011-2012 school year, upon presentation of proof of payment thereof;

2. The DOE shall reimburse the parents for payments made to all providers of services pursuant to the pendency order herein, upon presentation of proof of payment thereof;

3. The DOE shall reimburse the parents for six hours per week of therapy, at the rate of $ per hour, for the balance of the 2011-2012 school year, upon presentation of proof of payment thereof.

Dated: January 11, 2012

______________________________

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON JULY 14, 2011

PARENT

A Demand for Due process and Pendency, 6/29/11, 7 pages B Amended Finding of Fact and Decision, 10/23/09, 22 pages C IEP, 4/7/11, 21 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 18, 2011

PARENT

D Letter from Parent, 6/23/11, 3 pages E FNR, 6/15/11, 1 page F Letter from Parent, 6/15/11, 2 pages G Notice of Recommended Deferred Placement, 4/7/11, 1 page H NYC DOE Eval, 2/10/11, 5 pages I 2011-12 IEP , 20 pages J 2011-12, Individual Schedule, 1 page K Eval, 6/24/11, 9 pages L IEP Goals, 6/24/11, 3 pages M Development, 6/1/11, 8 pages N IEP Goals, 6/1/11, 10 pages O , 5/25/11, 3 pages P Complete Items Report, 5/25/11, 32 pages Q Incomplete Items Report, 5/25/11, 39 pages R Educational Progress Report, 12/21/10, 5 pages S 2011-2012 Enrollment Contract, 3 pages T Proof of Tuition Payment, 7/10/11, 1 page U Update, 8/2011, 1 page V Progress Summary, 8/9/11, 3 pages W home Care Progress Report, dated 8/6/11, 3 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 6, 2011

PARENT

X Proof of Tuition Payment, 9/8/11, 1 page Y Invoices & Proof of Payments for Related Services, 7/11 & 8/11, 10 pages

DEPARTMENT OF EDUCATION

1 District 75 Referral, 4/7/11, 1 page 2 FNR, 6/15/11, 1 page 3 DOE Assistive Technology Evaluation, 4/13/10, 4 pages 4 , 3/11/10, 1 pages 5 Medical, 4/8/11, 1 page 6 Parent's Letter, 6/23/11, 2 pages 7 DOE's Parent's Letter Notice, 2/8/11, 2 pages

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 14, 2011

PARENT

Z 's Resume, Undated, 3 pages AA 's Resume, Undated, 1 page BB 's Resume, Undated, 2 pages CC Invoices and Proof of Payments, July and October 2011, 28 pages DD Affidavit of Tuition Payment, 11/21/11, 1 page EE Attendance Record, 11/22/11, 1 page

DEPARTMENT OF EDUCATION

8 Contact Sheet, 6/17/11, 2 pages

IMPARTIAL HEARING OFFICE

I Extension Sheets, 4 pages

Footnotes

[1] The Order of Pendency was based upon the unappealed decision of IHO dated October 23, 2009. (Tr. p. 4).

[2] Although was recommended as a related service, the IEP does not include goals. This issue was not raised in the due process complaint, or in the course of the hearing.

[3] She later testified that this service is reserved for students (Tr. p. 116).

[4] As of the hearing date, the position had been open for two weeks, as the prior parent coordinator passed away ,and her position had not yet been filled. (Tr. pp. 111-112).

[5] PROMPT is an acronym for Prompts for Restructuring Oral Motor Phonemic Targets. Ms. described as “ ”. (Tr. p .244).

[6] Nor was there any indication that the recommended site had a formal parent and training program that would have been available to , had he attended.