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: September 6, 2011

October 12, 2011

November 28, 2011

November 29, 2011

November 30, 2011 Actual Record Close Date: January 18, 2012 Hearing Officer: Michael S. Lazan, Esq.

CORRECTED

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

Attorney — Student

Mother — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 12, 2011

Attorney — Student

Parents

Education Coordinator- — Student

(via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 28, 2011

Attorney — Student

Parents

Board Certified Behavior Analyst — Student

Therapist (via telephone) — Student

Therapist — Student

For the Board of Education: — Student

Attorney — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 29, 2011

Attorney — Student

Parents

Psychiatrist (via telephone) — Student

Language Pathologist (via telephone) — Student

Neurologist (via telephone) — Student

For the Board of Education: — Student

Attorney — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 30, 2011

Attorney — Student

Parents

Head Teacher- (via telephone) — Student

/Language Therapist (via telephone) — Student

Administrator- (via telephone) — Student

For the Board of Education: — Student

Attorney — Student

By Complaint dated June 30, 2011 (Exh. C), the matter of came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.

The Complaint was amended four different times (July 8, 2011, Exh. B; July 15, 2011, Exh. C; August 9, 2011, Exh., F; August 12, 2011, Exh. G), without objection from the District each time. The Complaints list numerous allegations relating to the IEPs reflecting the meetings dated April 12, 2011, June 23, 2011, and July 8, 2011. The Complaint requests reimbursement of up to 60 hours per week of direct teaching and , up to 5 hours a week of therapy, up to three hours a week of therapy, “related and incidental travel expenses,” three hours per week of individualized parent training, two hours per week of “supervision,” a 52 week program including weekends and holidays, and compensatory education for all pendency services that the student “is entitled to” but does not receive.

The District has conceded that its program for the student was inappropriate for 2011-2012. The parties sought to extend the timelines on September 6, 2011 because of the extensive testimony and issues in this matter. (13) The IHO granted this application to November 20, 2011. On November 10, 2011, the parties sought an additional extension of the decision date because of extensive testimony and issues. The IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application on November 11, 2011 extending the decision date to December 15, 2011. (IHO Exh. 1) On December 13, 2011, the parentS sought to extend the decision date again because of the need for the District to provide a rebuttal case, the need for additional case preparation, the need for briefs, the need for witness availability. There was no opposition from the District. The IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension through January 17, 2012. (IHO Exh. 1)

Briefs were due on December 31, 2011. The parentS moved to extend the time to submit the briefs to January 6, 2012. This application was granted without opposition. The parentS submitted a brief on January 6, 2012. (IHO Exh. 2) The District did not submit a brief in timely fashion, indicating that it was under the impression that the brief was due on January 16, 2012. (IHO Exh. 2) The District sought permission to submit its brief on January 16, 2012. The parents then sought permission to submit a reply, and both parties sought to extend the timelines to allow the District to submit a brief that could be considered by the IHO, and to allow the parent to reply. The IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted the extension through February 16, 2012. (IHO Exh. 2) The parents’ brief was submitted on January 16, 2012. (iho Exh. 2) Since the parents’ reply was submitted on January 18, 2012 (IHO Exh. 2), the record close date in this matter was set at January 18, 2012.

FINDINGS OF FACT

The Student is a old eligible for services as a child with . The student has which and on the , including , . (70-71) People environment. (257, 275) The child is not able to be maintained in a school program at this time . (75-108, 175, 275, 336337, 375-376, 394, 454, 459) She is a can . (339) She is . (339) She requires a program since she has made progress with this program, and people who will give her instruction without environmental distractions. (109-112) She requires a intensive, structured, to allow her to be comfortable to learn. (280) She functions better in the home environment. (372) It takes her a long time to learn, much repetition is needed. (303) Whenever there is a slight change in the environment, it affected her. (395-396)

The Student also has across all , , understanding, , , play. (359) She has . (484)

The parents need to be when there is no instruction taking place. (118) (299)

There was . (119, 136) Continuity of services would help the student . (119120, 128-129)

She requires a . (181, 378) Otherwise, she will that is provided. (378) Given the student’s . (182, 237, 378) She has significant . (236) Monday . (300, 321) There would be a . (301)

A consultant named works to determine whether or not there has been progress. (156; Exh. MM) She goes over data, comes up with ideas. (281) She also reviews instructional programming by . (156-157) She provides some parent training. (165) She had worked on the Student’s case intensely at the start of the year, but had reduced the amount to 2 hours a week by the date of testimony in November, 2011. (229)

provides services in the home, in the community, to allow the Student to generalize skills. (170) Services are provided by experienced special education teachers with experience in . (270-271) The teachers have been working with the Student since she was 4-5 years old. (273) teacher has established a good working relationship with the Student over the years. (277, 374, 399) Teachers provide the Student with roughly 60 hours a wek of services, including on weekends. (281, 472) The program could go up to 65 hours a week. (472) Saturday services are provided from 9am to 3pm. (286) Sometimes the Saturday services are four hours. (474) There have been times that services have been required on Sunday. (475) Some services are provided on holidays. (490-491) The Student requires an teacher to accompany her to related services because of her behavioral outbursts. (290-291) Rates are $140 an hour for Mr. and $170 an hour for Ms. . (479) Supervisory services are billed at $170 per hour. (480)

From June, 2011 through September, 2011, teachers worked with the Student on behaviors. (278) She was having 15-20 times a day. (278) Two teachers were needed during part of this time to . (294)

There is work on independent self-help skills. (170) There is work on reading skills through the Edmark program. (183, 202) The Student is taught “discrimination,” “compliance trials.” (189-190) Many instructors could not work with the Student. (191) Instruction is presented rapidly, and then the “compliance trials” get the Student back under control. (194-195) It is important for the Student to have more than one provider, this helps with generalization. (198-199) There is work on matching, money identification, labeling objects, color schemes. (296) A writing program, a sight word program is planned. (309)

There are is providing instruction. (171) The providers are skilled at getting the . (171-172) She is when she was at . (175) There is a since September, 2011. (215, 221)

Two therapists were necessary for a period to keep the . (172) One therapist would have to keep the , and the . (172-173) After there were less per day, the second person could be eliminated. (176)

The student benefits from being in the home environment with her family as opposed to being in the residential environment. (178-179)

The student requires 60 or so hours per week of services. (230) She needs a reinforcer every minute that she is not in instruction. (232)

provides for the Student. (250) She sees her twice a week for thirty minute sessions. (250) from is with the . (251, 254) She requires Mr. to be there because she is not “ . (250-251, 257) They work on , , , . (252-253) There has been progress in the . (261) There has been progress in terms of (261) Student. (262-263) Her rate is $190 per hour. (480)

provides for the Student. (343, Exh. Q, Exh. Y) It was very . (347-348) She then went . (349) She now sees the student once a week for one hour with the parent present. (349-351) She will read books to her,. (350) From the time the Student got out of the hospital to the end of September, there were four sessions weekly. (351) There has . (352) There have been during the current school year, a major increase over the 2010-2011 school year.

(363) The Student would benefit from

. (365) The rate is $200 per hour. (482)

provides

for the Student. (415) She services children who are working with . (419) Since September, she worked with the Student for four hours a week. (420) At first, or were with the . (420) Then this was faded, though the therapists stayed within the building. (421) They work on , . (422) Twenty to thirty percent of the instruction is spent on . (424) Her rate is $190 per hour. (481)

After the child’s doctor sent a letter to the CSE on June 20, 2011, the parent was told that the CSE would convene an emergency CSE meeting. (464) However, there were no programs offered at this meeting and at subsequent meetings. (465)

The parents sent a letter to the District advising the District of the implementation of a 52 week program in the absence of a District program on July 13, 2011. (Exh. N) The parents had provided the District with previous notice of the intention to implement this program in the absence of a District program. (Exh. V)

FINDINGS AND DECISION

In 2007, the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

On the first criterion, the District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District complies 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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are 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. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).

The District concedes that it did not offer an appropriate program for the student. The District concedes on the first criterion.

On the second criterion, the test for a parent’s placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

The parents presented eleven witnesses in total. This presentation included testimony from a number of accomplished professionals, including a physician from , and a individual with a Ph.D. from Teacher’s College Columbia University who is also a . These witnesses asserted – without being impeached or contradicted – that the parents’ quite extensive home program for the Student was an appropriate educational placement for the Student at this time given the , in 2011. These witnesses were supported by a significant amount of evidence, including progress notes, progress reports, educational updates, a therapy progress report, progress report.

Though the parental program requires that the , every single witness who was called indicated that the Student could not attend a school for 2011-2012 because her were at least in part a function of the in the school environment. The witnesses indicated that the Student had two conceivable choices for the 2011-2012 school year: a home-based program or a highly restrictive residential program. The witnesses urged that the Student remain in the home environment for the 2011-2012 school year because the Student requires the support of family and the home environment to function. The witnesses noted that the 12 year old Student had been subject to in the period following Memorial Day, 2011, and that the parents rightfully wanted to insure that the Student was not so hospitalized again. None of the witnesses recommended a residential program for the Student for the 2011-2012 school year, and the District has not so argued.

Indeed, the District did not present any witnesses or present any evidence in this matter. The District was to present an expert witness in rebuttal to the parents’ claims. However, after two hearing dates were scheduled in this connection, the District decided not to call their rebuttal witness.

Still, the District posits two arguments why the parents’ case should founder on the second criterion. First, the District indicates that the instruction at has not been successful for the Student, indicating that given the long instructional history with the Student “should have been able to deal with some of the very antecedents that were causing the .” I disagree with this characterization of the record. The record shows that the parents made a good faith effort to place the Student in a school after the Student required a home-based program. The record also shows that this effort was not successful, as the Student’s and in school made it clear that an program at this time. There is nothing in the record to show that the instruction at is somehow to blame for the Student’s difficulties in school during the 2010-2011 school year. On the contrary, the record shows that the instruction is an appropriate educational service for the Student at this time. As a result of the instruction, the Student is making gains in terms of her behavior. These gains have been generalized outside of the instruction. Dr. indicated that, outside of instruction, the “occurrences” have come down from perhaps eight a day to “maybe two” a day outside of instruction. (215) The record also indicates that the Student has been with family, has been making progress in terms of some academic goals, and has not required in Spring, 2011.

The District also posits that the Student does not require a 52 week program for 2011-2012. In a previous decision relating to an earlier school year, this IHO previously ruled that the Student’s home program should not reflect a weekend and holiday component, pointing to the fact that the record did not support the need for such services and that a showing of regression is required to support such weekend component. (Exh.

E) Here, the record does in fact support the need for weekend and holiday services to avoid regression. The parents’ presentation includes testimony from two well qualified medical professionals who indicate that the Student requires weekend and holiday services to avoid substantial regression. In response to a question about whether the services, Dr. , a professor of , indicated that the Student needs “ ” therapy brings.”

(378) Moreover, the parents’ presentation includes testimony from the parents’ coordinator, who also indicates that the Student requires . (181) The District did not present any witness to rebut these assertions. Nor did the District present any legal support for the proposition that a parent cannot receive tuition reimbursement for a program that includes weekends and holidays. In fact, the caselaw indicates that such a program may be reimbursable pursuant to the Carter/Burlington line of cases. See, e.g., Ash v. Oswego Lake School Dist. No. 7J, 766 F. Supp. 852 (D. Ore 1991)(residential setting: court noted that “the evidence in this case shows that an appropriate education for Christopher is one that only a twenty-four-hour-a-day, seven-day-a-week educational environment can provide”); Kerkham v. District of Columbia, 672 F. Supp. 519 (D.C.D.C. 1987)(ordering reimbursement for both school and group home costs).

Parenthetically, the District does not make any specific argument in connection to the related services provided to the Student or the supervisory services provided by Dr. . The undisputed record indicates that these services are a necessary component of the Student’s education and are appropriate under the Act. The record also indicates that the parents require up to , as is alleged by the Complaint. Again, the District does not make any specific argument in connection to such services.

Finally, the record does not clarify the parental requests for “related and incidental travel expenses,” and there is no reference to this claim in the parents’ brief. Moreover, the record does not adequately support the need for any such services. The parent indicated that she did not get charged for travel time. (446) The parents prevail on the second criterion except to the extent that they claim “ expenses.”

On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). With respect to a parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary. Application of a Child with a Disability, Appeal No. 04-071.

The District argues that the parents never really considered a public school placement. However, the District did not offer the parents an appropriate public school placement, as the District concedes. Courts indicate that, where a District fails to offer a placement for a particular school year, equitable considerations should not bar reimbursement. N.R. on behalf of T.R. v. Department of Education of the City School Dist. of the City of New York, 52 IDELR 92 (S.D.N.Y. 2009). Moreover, the record indicates that the parents complied with all District demands and requests and provided the District with appropriate notices here. The parents prevail on the third criterion and are awarded reimbursement for services provided and to be provided for 2011-2012 upon proof of payment and services rendered, except to the extent that the services constitute related and incidental travel expenses.

Finally, the parents also claim “compensatory education for all pendency services that the student “is entitled to” but does not receive.” The parents do not elaborate on this claim, which is not mentioned in either of the parents’ briefs. This claim is not supported by the record and appears to be rendered superfluous by the reimbursement award here. This claim must be denied. Dated: February 1, 2012 Corrected Date: February 9, 2012 (Corrections Made to Body of the Decision)

_____________________________

MICHAEL S. LAZAN, ESQ.

Impartial Hearing Officer

MSL:jj

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

PARENT

A Omitted B Amended Demand for Due Process, 7/8/2011, 18 pp. C Original Demand for Due Process, 6/3/2011, 16 pp. D SRO Decision 08134, 1/16/2009, 5 pp. E Findings of Fact and Decision by IHO , 10/15/2008, 49 pp. F Third Amended Demand for Due Process, 8/9/2011, 17 pp. G Fourth Amended Demand for Due Process, 8/12/2011, 17 pp. H Letter to IHO Regarding Pendency, 3 pp. I IEP, 7/8/11, 31 pp. J IEP, 4/12/11, 27 pp. K Due Process Response, 7/25/11, 6 pp. L Due Process Response, 7/8/11, 5 pp. M Letter to IHO , 9/27/11, 1 p. N Letter to from Parents, 7/13/11, 4 pp. O Letter to from Parents, 7/11/11, 3 pp. P Letter from from Parents, 7/5/11, 3 pp. Q Letter to from Parents, 7/5/11, 6 pp. R Letter to from Parents, 6/30/11, 6 pp. S Letter to from Parents, 6/24/11, 4 pp. T Letter to CSE from , 6/20/11, 3 pp. U Letter to from Parents, 6/15/11, 3 pp. V Letter to from Parents, 6/14/11, 3 pp. W Authorization to Attend Special Education Program, 7/20/11, 3 pp. X Final Notice of Recommendation, 7/20/11, 2 pp. Y Speech and Language Progress Report from , 6/22/11, 3 pp. Z CSE Review Team Meeting Members Attendance and CSE Meeting Minutes,

4/12/11, 1 p. AA Letter from IBI, Re: 8/1/11, 1 p. BB Letter from IBI, Re: , 7/18/11, 1 p. CC Omitted DD Omitted EE Omitted FF Omitted GG Omitted HH Omitted II Omitted JJ Omitted KK Omitted LL Omitted MM Report of Dr. , 10/3/11, 5 pp. NN Educational Progress Report from

, 12/2010, 7 pp. OO Speech Progress Update by , 12/1/10, 2 pp. PP OT Progress Report by , 12/10/10, 2 pp. QQ Educational Update by , 6/21/11, 4 pp. RR Educational Progress Report by , 12/2010, 7 pp. SS Findings of Fact, 4/12/11, 68 pp. TT SOR Decision, 11051, 7/13/11, 30 pp. UU IBI Response to District Subpoena, 10/28/11, 479 pp. VV Rate Schedule for , Undated, 1 p.

IMPARTIAL HEARING OFFICER

I Notices Relating to Extensions, Various Dates, 3 pp. II Post-Hearing Briefs, 1/6/12, 1/16/12, 1/18/12, 39 pp.