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 18, 2011

September 20, 2011

November 17, 2011

December 15, 2011

February 1, 2012

February 13, 2012

March 8, 2012 Actual Record Close Date: April 22, 2012 Hearing Officer: Lynn Botwinik Almeleh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 18, 2011

Attorney — Student

Parents

Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 20, 2011

Attorney — Student

Parents

Parents

Attorney — DOE

Master Teacher- (via telephone) — DOE

DOE Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 17, 2011

Attorney — Student

Parents

Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 15, 2011

Attorney — Student

Attorney — Student

Parents

Parents

Student

Attorney — DOE

Head Teacher- (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 1, 2012

Attorney — Student

Parents

Parents

Pathologist- — Student

(via telephone) — Student

Occupational Therapist- — Student

(via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 13, 2012

Attorney — Student

Parents

Parents

Physical Therapist (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 8, 2012

Attorney — Student

Parents

Parents

Attorney — DOE

Director of Clinical Services- (via telephone) — DOE

Procedural Context — DOE

On July 1, 2011 I was appointed to hear the matter of . versus the New York City Department of Education pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). In furtherance thereof, a pendency hearing was held on July 18, 2011 and an Interim Order of Pendency issued the following day. On this same day, an Amended Due Process request was interposed and accepted. On July 22, 2011 and September 13, 2011 unverified Due Process responses were submitted. Exhs. A, E, 9. Thereafter, hearings on the substantive merits were held on September 20, 2011; November 17, 2011; December 15, 2011; February 1, 2012; February 13, 2012 and March 8, 2012. Thereafter, the Parties were invited to submit Memoranda of Law and as a result thereof, the timeline was duly extended to April 22, 2012.

The parties do not dispute the appropriateness of the child’s extended year placement at the Association for (hereinafter “ ”), a state-approved non-public school placement underwritten by the Department of Education. Rather, the Parents seek declaratory judgment and restoration of related services pursuant to the June 21, 2011 IEP. Exh. D. Specifically, the Parents maintain that the Department of Education’s placement, absent related services, is neither suitable nor appropriate for their child and rely upon the rules and principles set forth in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]. In contrast, the Department of Education (hereinafter “Department of Education”), maintains that the March 2, 2011 IEP must be deemed the subject of dispute in this matter. Exh. 3.

A list of persons in attendance and of evidence is appended hereto. The Department of Education’s Case testified as lead witness on behalf of the Department of Education. Mr. is employed by as a Master Teacher with supervisory responsibilities. He is a certified special educator and has known ., directly and indirectly, in this capacity for three years. The witness was aware of a March 2, 2011 CSE convene for the child, but did not participate. He characterized this meeting as a “reapplication to get approving funding for the next year as well as just familiarize with any services . . . that may have occurred.” Tr. at 58. In furtherance thereof, it was his understanding that , the child’s classroom teacher, drafted the IEP document.

The witness described the program as an intense program in which approximately three and one half hours per day (17.5 hours per week) are dedicated to discrete trial methodology. As the entire program is oriented, however, the child would generally be instructed through protocol for the remainder of the day. Tr. at 61. Other than the classroom teacher, he noted that the classroom paraprofessionals are certified “TAs” but are not necessarily college graduates. Ibid. Nevertheless, all teachers and assistants receive ongoing in-service training in by one of two employed at . Tr. at 63. . participates in a classroom.

Mr. testified that he enters .’s classroom daily and has often observed the child within this context. Having said this, however, the witness did not know the surnames of the child’s push-in providers and was uncertain about the occupational therapist’s first name. Tr. at 124-126. Based upon his knowledge of the child, Mr. testified that . exhibits interfering which are addressed through the paradigm and a token economy, divided into half hour segments during the day. He indicated that the child is responsive to this protocol and is easily re-directed. Tr. at 65-66. All of s students participate in the identical model.

Consistent with the March 3, 2011 IEP, additionally receives the related services of provided within a push-in model. As such, he opined that . did not require any services beyond the school day, adding that .’s capacity to absorb additional instruction might well be over-saturated by additional after-school interventions. Tr. at 79. Nevertheless, he had never spoken with the child’s outside providers and testified that he had no specific facts with regard to . to support his opinion. Tr. at 87, 114. Although Mr. testified that he did not believe the child’s behaviors seriously interfered with instruction, he nevertheless did not know if a of had been performed within the last two years. Tr. at 74-76. Significantly, Mr. testified that he had no recollection of ever seeing the IEP of June 21, 2011 and it is unclear if Mr. is aware of what services are sought by the Parents. Exh. D. Tr. at 86-87. In fact, Mr. ’s position is largely administrative. He testified, “I supervise seven classrooms meaning I go in and I help with any curriculum development, any parental concerns, any coverage issues as well as any programs that need assisting and I facilitate with the classroom as well as supervise them.” Tr. at 55.

On cross-examination, the witness acknowledged that the child’s March 2, 2011 IEP references behavioral challenges which largely impact his expressive, receptive and social language skills. Exh. 3 at 3B. Similarly, he noted descriptions of indicating, “difficulty initiating and maintaining eye contact as well as engaging with one of his peers in an activity. classroom teacher and had not participated in the formulation of the child’s IEP, he disagreed with the word “constantly” based upon his knowledge of P.M.

Mr. further testified that all children receive related services within the structure of a 30 minute session. He added that this was consistent with the School’s token economy which utilizes 30 minute increments to reward its students. Although he agreed that . demonstrated a short attention span, Mr. testified that the School was not authorized to provide longer related service sessions. Moreover, due to programmatic scheduling it was neither feasible nor practical. Tr. at 124.

additionally testified on behalf of the Department of Education. Mr. is employed by the Department of Education as a school psychologist, a position in which he is state certified. The witness participated in the March 2, 2011 CSE convene as both District representative and school psychologist, describing this meeting as a reapplication meeting in which it would be determined whether remained an appropriate program for Tr. at 137-138. He noted that the re-application review is a “type of annual review.” However, if a Parent were seeking additional services beyond those already articulated in the IEP, it would require a full CSE review meeting and a written request to the region’s Chairperson. Tr. at 141-143.

Although the meeting was described as an Annual Review, the witness testified that this could be accomplished by a sub-committee review which did not require the participation of a parent member. Tr. at 172-178. In furtherance thereof, he then testified that he advises the parents, pro forma, as to the distinction between a sub-committee meeting and a CSE review and, in fact, did this with the Parents at the meeting’s outset. Tr. at 221-224. Nevertheless, he noted that the designation “re-application” Department of Educations not necessarily indicate that the meeting is a subcommittee meeting. Moreover, some re-application meetings may be full Annual CSE reviews. Tr. at 232-

233. Ultimately, although the Parent signed the minutes of the meeting, neither he nor the Parents were provided with a copy. Mr. testified that “. . . copies of nothing were made at the meeting. We didn’t have the ability to make copies.” Tr. at 234.

The witness described the CSE meeting, noting that a draft IEP had been prepared by . Based upon the child’s prior IEP, the draft IEP, a teacher progress report and provider reports furnished by , the Committee discussed and developed an educational plan for the upcoming school year. Tr. at 157. Nevertheless, on cross-examination, Mr. testified that he could not specifically recall whether the Parents physically possessed a copy of the IEP draft which was the subject of this meeting.

The Department of Education did not conduct any evaluations of its own and Dr. was unsure as to what testing had been conducted by Tr. at 181-182. However, he did not recall any Parental objections to the CSE’s discussion of .’s current levels of educational performance. He noted that personnel largely provided the descriptive information incorporated into the IEP and additionally drafted the annual goals and short term objectives. As part of this discussion, the CSE concluded that . did not manifest any interfering behaviors which might require a behavior plan, adding that the child was easily managed by the classroom teacher. Ultimately, the CSE did not recommend any changes to the draft IEP, an opinion with which the Parents purportedly concurred.

In reviewing the CSE minutes, a document prepared by social worker Flick, the witness acknowledged that the Parents had expressed several concerns about their nonreceipt of materials in preparation for what they believed was a full CSE meeting. Exh. 2. He noted that they had additionally objected to the discontinuation of home-based related services, although Dr. could not recall any discussion about supplemental services. Tr. at 184-185. In fact, had the Parents wished to discuss this issue, the CSE witness testified that they were not in any position to furnish these services absent a formal request by the Parents to . Tr. at 186. He added, moreover, that the Parents’ request for supplemental services was not part of the special education continuum and could not be discussed in terms of the IEP’s representation that “other programs and services” were considered. Tr. at 191; Exh. 3.

In sum, Dr. acknowledged that he did not know the student and was unaware of his behavior management or communication needs, including those for assistive technology. He opined that this was the responsibility of and, as such, the Department of Education had not developed its own assessments, . Tr. at 196-202. He could not recall any discussions about behavioral issues, parent training or parent counseling nor did he recall asking the Parents if they wished translator services. Tr. at 215.

is a licensed special education teacher at and participated in the March 2, 2011 CSE meeting for . in this capacity. She described herself as “ , but on crossexamination, indicated that this had been a local certification from a prior employer. Tr. at 337, 341. In fact, she was unfamiliar with the term “ is assigned to her classroom. In preparation for the March 2011 CSE meeting, Ms. indicated that she and the child’s related service providers had prepared progress reports which were sent home via backpack to the child’s Parents. Thereafter, with the assistance of these providers, Ms. developed a draft IEP. As a whole, the witness testified that the child’s on-task behavior had improved and . had been responsive to ’s token economy noting, “He gets upset when he does not receive anything from the cart.” Tr. at 304. The witness testified that the Parents had not objected to the descriptions of .’s present levels of performance or to the goals selected. Based upon the “Instructional Guidelines System” in which mastery lists and goal criteria are defined, Ms. developed a description of specific goals for . in preparation for the draft IEP and the CSE meeting scheduled in March 2011. Tr. at 306, 313.

The witness testified that discrete trial methodology is utilized throughout the day, with group activities, related services and specials dispersed between discrete trial sessions. While Ms. testified that the CSE proceedings had been uneventful and without dispute, Ms. observed that there had been no discussion regarding the termination of .’s home-based services. Tr. at 433.

Ultimately, Ms. averred that had been an appropriate placement for the child during the 2011-2012 school year as . had made meaningful progress. In math, she specified that . had developed an understanding of correspondence. In reading, the child was now able to recognize his name and identify letters up to H. In writing, . was . Although she was aware that . received a number of home-based related services, she was largely unfamiliar with them and “rarely” communicated with the providers. Tr. at 334-335.

Ms. discussed some of the parent training opportunities, noting that if the proper forms are completed, parents may observer whatever sessions they wish. Individualized teacher conferences are additionally held. However, she was unaware of any situation in which personnel would assist a parent at home with specific problems such as toileting or ADL. Tr. at 342-343. In fact, the witness testified that she had never heard of providing supportive services at home within the context of an individualized home program. Tr. at 342-343. She added that although . exhibited which interfered with his access to instruction, she had not prepared an , was uncertain if anyone from the School had ever done so and did not know if an was part of the School’s programming model. Nevertheless, she opined that .’s behaviors 1 had not warranted such an assessment. Tr. at 351. Although each child demonstrated his own array of maladaptive behaviors, Ms. opined that the generic school-wide program had been effective for ., an opinion she based exclusively upon observation. Moreover, notwithstanding her reference to behavioral data in her Educational Progress Report of June 2011, Ms. acknowledged that none had been taken. Exh. N. In fact, no behavioral data at all is taken in her classroom. Tr. at 352-355, 359, 362. Ms. noted that none of her students had nor had she been trained to develop one. Her determination that the School-wide behavior protocol had been successful for . was predicated upon the ease with which the child could be re-directed. Tr. at 368. Nevertheless, the witness’s report noted that . would “respond immediately to redirection, but only for a short period of time.” Ms. later indicated that . was only able “ .” Tr. at 393, 605.

Head Teacher additionally spent considerable time describing data maintained during the academic portions of ’s day. Tr. at 523-606; Exh. 11. Again, there was no data on ’s negative behaviors which occurred throughout the day and Ms. was unable to identify any particular antecedents to these . Tr. at 610, 612-613. Finally, the witness observed that the School was addressing many incidental skills upon which no data was taken. She did not know why had not developed a complete program for i.e. non-contextual vocalizations, babbling, singing, hair-pulling, pacing about the classroom but was aware that the Parents wanted to develop as a condition precedent to . Tr. at 618-620.

In general, Ms. acknowledged that . continued to demonstrate areas such as . The witness noted, however, that achievement toward his behavioral, occupational, goals. Exh. Q. She steadfastly refused to comment upon the child’s extensive home program, its appropriateness or contributions to . Tr. at 375, 382-383. In sum, Ms. testified that the Parents were able to express their concerns daily in the child’s communication book but had not indicated any objections.

Finally, , . testified as a rebuttal witness on behalf of the Department of Education. Dr. is the Director of Clinical Services at and as such is responsible for the delivery of related services at the School.

She testified that parent training, including information regarding , was offered on a monthly basis and, if necessary, more frequently if a parent so desired. Training is offered on one Tuesday night per month between 5:30 and 6:30 pm. On these occasions, the services of a were available. Notice of these training sessions was indicated on the calendar as well as by communications sent home in the children’s knapsacks. Tr. at 877-

878. Dr. testified that training may address topics such as . In addition, she considered parent observations of their children an informal form of parent instruction. Tr. at 886,

924. Dr. noted that the ’s had only attended one training session in December but was unaware that the 5:30 pm start time interfered with .’s related services, a concern expressed by the Parents in the child’s communication book. Exh. AAA.

On cross-examination, and the Parents’ rebuttal case, Dr. acknowledged that there had been no September training as it was unclear if parental notice had been furnished. Tr. at 890-893. She acknowledged, moreover, that not one parent had been in attendance. Exh. 13. However, in October, November and December training sessions were held. Thereafter, no training occurred from January through March 2012 as had left the position. Exhs. 13, BBB. Alternatively, parents were offered an opportunity to come in during the day if they sought training.

Although a new was ultimately hired by , Dr. testified that training sessions would not be forthcoming until the new employee had familiarized himself with the School and its students. Tr. at 921.2 Of the 185 students who attend , only 7 families have participated in their parent training program. Tr. at 927-928. The witness was unaware of any home-based programs, as contemplated by New York State regulations, run by parents under the supervision and guidance of . She further testified that personnel do not make home visits. Tr. at 936-938. The Parents’ Case holds a Master’s degree in Applied Behavior Analysis and has been certified as a BCBA since 2008. Ms. r has been providing both direct and indirect . In furtherance thereof, she opined that it is critical to perform an since “If you don’t know what variable is responsible for , then no treatment you proceed with will be appropriate.” Tr. at 447-450, 494.

Consistent with this, Ms. elaborated upon the importance of and educational data as a means of assessing improvement and identifying the protocol’s efficacy. Specifically, the witness reported that she has been working on the predicate behaviors for on-task performance (i.e. sitting at attention quietly) and . had demonstrated significant improvement in this area. During this time, Ms. noted that she has worked collaboratively with to maintain instructional consistency. She has visited the school, exchanged data and discussed personnel.

On November 1, 2011, Ms. prepared a report summarizing her intervention with . Exhs. PP, TT, OO. In it, she recommended a minimum of 20 hours of direct per week for ., a recommendation based upon both , the child’s slow rate of acquisition and inability to generalize readily. Beyond this, Ms. opined that the Parents continued to require two hours of training supported by an additional hour of supervision per week, reflecting time interfacing with service providers, other providers in the home as well as the School. Recently, she has used this time, in part, to introduce and program the child’s I-Pad for various academic skills. Tr. at 463-466. The witness observed that the child Department of Educations not arrive home until 7:00 pm

Dr. Diorio testified in March 2012. on some occasions as . receives related services after school.^[3] When this occurs, parent training is deferred. Tr. at 491-492.

In sum, Ms. opined that the supplemental home-based program was an appropriate component of ’s education apart from the programming at . Although it was her understanding that was an driven program, she had not met any ersonnel from the School. In view of the above, she averred that .’s compelling deficits required the ancillary services he was receiving at home as, in the absence of these services, P.M. had previously demonstrated significant regression Tr. at 484-487.

additionally testified on behalf of the Parents. Ms. holds a Certificate of Clinical Competency in speech pathology and is employed at Therapy where she provides four (one hour, ) speech sessions to . per week. She described a minimally verbal child who demonstrated poor receptive skills and little, if any, spontaneous language. Tr. at 629; Exh. J. Beyond this, . exhibited frequent behaviors which compromised her ability to engage the child productively. In furtherance thereof, she noted that . might require five to ten short breaks during the course of her 60 minute session4. However, even these breaks served as language driven opportunities to develop speech. Tr. at 648-649, 653. The witness indicated that she has been using the I-pad applications for facilitating speech, a highly motivating intervention which has been effective with . Tr. at 630-631.

Ms. testified that she had communicated with personnel and observed the child’s speech therapist at their site. Based upon her experience with and her observation at , she did not believe the School’s services were adequate due to the frequency of , and need for . Similarly, given the child’s global deficits, including his inability to readily generalize skills, she opined that were insufficient to meet . Tr. at 634.

is a licensed occupational therapist at who treats supplemental communitybased program. In this capacity, Mr. observed that the child demonstrated low muscle

4 The witness observed that .’s breaks generally lasted no more than 2-3 minutes and totaled approximately ten minutes per one hour session. tone and, as a result, had difficulty maintaining his posture in a seated position. The witness, moreover, described a child who required maximum assistance to visually attend to a presented task. As a result of . , task compliance was frequently compromised. The witness testified that the child receives three (one hour, ) sessions per week, some provided within a , others in a treatment room. In two of these sessions, therapist is addressing as this is a significant area of Tr. at 664-665; Exh. H. A third session is provided by a second therapist at the center.

Referencing a parent-teacher conference in which he participated at Mr. moreover, opined that the writing skills being addressed by their personnel were inappropriate at this time. As . and . Rather, he believed vocational goals should be incorporated into the child’s educational plan. Tr. at 670, 682-683.

In sum, Mr. opined that the child had made significant progress with his occupational therapy goals, noting that he had been able to add weights to ’s upper and to add more components to his hand washing goals. The clinician opined that the child was now tolerating his therapy sessions better and, as a result, progress had been expedited. Nevertheless, he testified that continued to require three hours per week of home-based and would demonstrate significant regression if they were discontinued. Tr. at 680-681.

additionally testified on behalf of the Parent. Dr. is a licensed physical therapist who holds a doctoral degree in his discipline. He has worked directly with . since 2010 as an independent contractor through . Exh. RR. The witness described a child with . As a result, Dr. opined that . actually required more than the two hours of therapy he was presently providing and certainly more than the 2 thirty minute sessions the Department of Education was currently recommending. Tr. at 720, 722-723, 728; 736-737; Exh. D.

Nevertheless, he noted, that with parental involvement, the child had recently made significant improvements on a twice weekly schedule. Tr. at 727-728. He noted that . . Although the child is able to , . Dr. additionally noted that exhibits , low endurance and gravitational insecurity which impair ’s ability to safely negotiate ,a situation which could be . Tr. at 740-741. Although Dr. has attempted to visit , his appointments have been cancelled twice by the School. Tr. at 734. As a result, he has not had the opportunity to observe the student with his school-based providers.

The Parents additionally testified. On March 2, 2011, both Mr. and Ms. participated in a CSE convene. Mr. . testified that it was this meeting would generate an IEP for the 2011-2012 school year. As a result of this meeting, the CSE again recommended the placement but terminated its recommendation of the Parents’ home programming. Exh. 3.

On June 21, 2011, the CSE again convened. Although the Department of Education had developed this date unilaterally, both Parents were in attendance. Tr. at

747. The witness noted that there was no parent member at this meeting, nor were they asked to sign a waiver. Most importantly, there was no discussion as to why the service levels articulated in the June 21, 2011 IEP would be dramatically enhanced from the March 2, 2011 IEP for an abbreviated period of eight days. Exh. D at 2. Rather, as the new school year commenced July 1, 2011, it was Mr. .’s understanding that the meeting had been convened for the purpose of addressing .’s educational services for the upcoming school year. Indeed, the Parents did not participate in any further CSE meetings for the upcoming 2011-2012 school year.

Mr. . testified that his son has never been referred for an assessment, nor has an FBA been conducted. To date, the Parent testified that the Department of Education has not conducted a triennial evaluation for . He was, furthermore, unaware of any efforts on behalf of the Department of Education to contact .’s related service providers, presumable for updated evaluative information. Tr. at 781, 785-786. Mr. ’s testimony suggested he was unaware of his right to round trip transportation, either from school or after-school therapies; however, he indicated that he had not requested reimbursement and was able to cover the cost of .’s Metrocard. Tr. at 818-822.

Finally, he briefly described ’s schedule. On Monday, . leaves for school at approximately a.m. and returns home following therapy at about 7:00-7:30 p.m. On all other week-days, the child . at which time he receives until approximately 8:00 p.m. at night. Tr. at 832-835. On Saturdays, two hours of parent are provided.

In sum, Mr. . opined that .’s supplemental services, those received through a home-based program, were vital to the achievement of his son’s educational goals. Tr. at

795. In furtherance thereof, he indicated that he has observed his son’s classroom at least once a month and spoken with personnel but expressed dissatisfaction with the manner and nature of ’s parent training, noting that parent visits are limited to one half hour sessions. Tr. at 815. In fact, upon inquiry, Mr. . indicated that parent training had been furnished by , .’s home programmer. Tr. at 807.

Mr. . concluded his testimony by noting that he had routinely attended CSE meetings, collaborated with and furnished them with related service reports from his home-based program.^[5] He had not requested additional evaluations from the Department of Education, nor had the Department of Education asked for them. Similarly, the Department of Education had not observed the child’s home-based program nor had it requested permission to do so. Finally, Mr. . noted that he had not made demands upon the Department of Education for transportation reimbursement.

Ms. .’s testimony was largely consistent with that of her husband. Beyond this, she noted that it is extremely difficult to schedule appointments with personnel as personnel was lackadaisical in their responses and often cancel scheduled appointments at the last minute. This was particularly upsetting as she had already taken time off from her job and had wasted time waiting for her appointment. Although she had sent frequent

6 notes via the communication book as well as multiple emails to Ms. , Mr. and others requesting a list of parent training topics, this did not occur. In December, Ms. did, in fact, attend a training session offered by . The Parent testified that she was extremely disappointed by the presentation, an opinion shared by the other attendees. In their discussion following the meeting, Ms. . noted that the presenter had clearly been unfamiliar with their children and had presented the information at such a basic level that the parents did not benefit from the presentation. Finally, Ms. . specifically noted that she had reached out in the child’s communication book repeatedly about as this is a major concern for her . To date, she did not believe this had been meaningfully addressed. The Department of Education’s Position

The Department of Education contends that it has provided the child with a FAPE which is both substantively and procedurally valid, asserting that its March 2, 2011 recommendation of a specialized along with related services of push-in appropriately serves . Exh. 3 at 22. As specifically articulated, the School District asserts that the IDEIA simply requires the School District to provide a FAPE, absent any duty to maximize or optimize the child's educational benefits. Thus, it maintains that compliance with its IDEIA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits. Its duty is simply fulfilled by the implementation a plan “reasonably calculated to confer an educational benefit upon the child.” Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her parents, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998).

Consistent with this view, the Department of Education further asserts that a supplemental ABA home program is unnecessary, including parent training, even where an autistic child demonstrates few generalized skills. Application of a Child with a Disability, Appeal No. 03-036; Application of the Board of Education of the Sackets Harbor Central School District, Appeal No. 99-8. E.Z.-L., by her parents R.L. and A.Z. v. New York City Dep’t of Educ., 2011 U.S. Dist. LEXIS 6335 (S.D.N.Y., January 24,

2011) and K.Y. ex.rel. T.Y. v. New York City Dep’t. of Educ., 07 Civ. 3199, 2008 U.S. Dist. LEXIS 89827 at *20-21 (E.D.N.Y. July 2, 2008), aff’d 584 F.3d 412 (2nd Cir.2009), cert. denied, 130 S.Ct. 3277, 176 L.Ed. 2d 1183 (2010). See also Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 [1st Cir. 2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v. Hendry County Sch Bd., 941 F.2d 1563, 1573 [11th Cir 1991]). In the alternative, the School District claims that even if it had failed to provide a FAPE, the parent’s supplemental home program is inappropriate. Similarly, the Department of Education maintains that equitable factors militate against an award of reimbursement. The Parents’ Position

The Parents assert that the Department of Education stands in abrogation of its duty to provide . with a free and appropriate public education. Specifically, counsel maintains that the March 2, 2011 IEP is superseded by the June 21, 2011 IEP. Moreover, even if it were not replaced by the June 21, 2011 IEP, the Parent maintains that the March 2, 2011 IEP reflects a number of substantive and procedural errors which, in aggregate and alone, compel nullification of the document.

Specifically, counsel maintains that the extended day supplemental related services provided in the June 21, 2011 IEP remain integral to the child’s ability to retain and generalize skills acquired during the school day. Although there is no dispute regarding the child’s classification or day school placement, the Parents contend that the supplemental services . receives pursuant to the Pendency Order of July 19, 2011 are a necessary component of the child’s education. Given the unique learning style of P.M., an appropriate placement must include additional home-based services to consolidate, reinforce and generalize the child’s educational experience during regular school hours.

Beyond this, the Parents assert that there are no equitable considerations which militate against the Parents’ entitlement to an award of reimbursement, noting that the Parents have been active, motivated and cooperative in their relationship with the Department of Education. See U.S.C. § 1414 (d)(1)(A); §1401 et seq.; Board of Education of the County of Kanawha v. Michal M., et al., 95 F.Supp2nd 600 [S.D.W.Va 2000].

Discussion

It is clear that the legislative intent of 20 US Code § l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C.Sx.1400 [d][1][A]; see Ms. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 N.Y.C.R.R. 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].

In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]).

In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199.

Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, a school district "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y.

2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]).

Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

Finally, the Courts have addressed the question of whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEIA and subsequently enroll the child in a private school of their choice. The Supreme Court has established a three-pronged test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy. Florence County School District Four v. Carter by Carter, S.Ct. 361 (1993). Point 1: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the March 2, 2011 IEP reasonably calculated to confer an educational benefit upon P.M. during the 2011-2012 school year?

A. Do procedural defects warrant nullification of the child’s IEP?

1. Was a duly constituted Committee convened?

The Parents have alleged, a priori, that the June 21, 2011 IEP is controlling for the 2011-2012 school year and, moreover, supercedes the March 2011 document. Alternatively, if the March 2, 2011 IEP is deemed the ruling document, its integrity is compromised by both procedural and substantive violations of the Parents’ due process rights. In furtherance thereof, I will address the procedural issues first.

At the outset, the Parents maintain that the March 2, 2011 CSE was convened in the absence of a duly constituted committee and, more specifically, a general education teacher. The record, however, indicates that . children. He does not participate in any and there is no indication that he will do so shortly. Under these circumstances, I do not believe the Parents’ rights were compromised by the lack of a general education teacher. More substantively, the Parents maintain that the March 2, 2011 CSE was convened without benefit of a mandated parent representative or waiver. In contrast, the Department of Education asserts that the March 2, 2011 meeting was a “re-application” meeting and, as such, did not require a full panel.

At issue, sub judice, is the nature of the meeting convened and the basis for its characterization as a re-application convene.^[7] Indeed, Chairperson testified that the March meeting was a re-application review, describing this as an Annual Review which did not require a full Committee. The record, however, does not support his testimony. Tr. at 172-178. Rather, the meeting’s status appears to transmute, depending upon the document reviewed. The evidence does not include the Parents’ CSE invitation, student contact sheet or any other written documentation which precisely and squarely memorializes the nature of the March 2011 convene, placing the Parents on notice as to a scheduled “re-application” meeting and its limitations. Moreover, the March IEP references the proceedings as an “Annual Review” as does the Final Notice of Recommendation. Exhs. 3 at 1-2; 4. Even the CSE Minutes, furnished after the meeting and noting a litany of objections raised by the Parents during the meeting, refers to the proceedings indeterminately as an “Annual Review/Reapp.” Exh. 2.

While there is a general denial in its Due Process Response, the document does not specifically rebut the Parents’ allegation that the CSE was not duly composed, although other objections and defenses are clearly articulated. Exh. 9. In fact, the unverified Due Process Response generically references the child’s “review,” suggesting a deliberate ambiguity even after the commencement of proceedings.

I note, moreover, that the Department of Education itself does not use the “reapplication” language in its Standard Operating Procedure Manual (hereinafter “SOPM) ^[8] criteria for “Determining IEP Team Composition for Students Previously Classified.” In fact, SOPM unambiguously indicates that non-public school placements described as “defer to CBST” uniformly require a full committee. Exh. MM at 69. Similarly, the “reapplication” language is not utilized in its SOPM instructions for “Annual Reviews for Students Attending State Approved Non-Public Schools,” a provision which immediately succeeds the Department’s protocol for CBST deferrals. In fact, under these provisions, the Department specifically indicates, “IEP Teams are required to invite all mandated participants to attend the Annual Review meeting . . .” Ibid. at 100. Indeed, when “reapplication” terminology is referenced, it is wholly described as an Annual Review, undifferentiated by less formal criteria. Exh. MM at 101. Clearly, given the complexity and inconsistency of the verbiage utilized, one cannot expect a Parent to comprehend these distinctions and be on notice as to one’s due process rights. This is especially so where, as here, parents are non-native English speakers and a translator is not offered. As for ’s Master Teacher conclusion that the March meeting was a re-application meeting, this was based upon the fact that several students had been scheduled for CSE convenes that day. Tr. at 59. I am hardly convinced by this testimony.

The facts at bar indicate that Mr. ’s unanticipated but significant recharacterization of the meeting prefaced the CSE convene. Exh. MM at 69. At this point, his complex preamble regarding Annual Reviews, sub-committees and parental rights was already violative of the Parents’ rights as it was clear the Parents sought more than mere re-approval of . The Department of Education was well aware that the child’s educational placement was hardly a routine matter in which ’s approval would be rubber-stamped as there was an extensive history of litigation regarding the child’s related service mandate. Rather, the use of the “re-application” verbiage created an opportunity to pre-determine the outcome of the CSE meeting. Given the lack of notice to the Parent in contrast with Dr. ’s 17 professional years with the Department of Education, I can only conclude that the sudden “re-application” status of .’s CSE was little more than an effort to circumvent discussion of any issues in dispute by the Parents.

Specifically, the record indicates that the parties had long agreed to the child’s classification and placement at , but continued to dispute the issue of a home-based program. In fact, this very issue seems to have been litigated repeatedly, most recently during the 2010-2011 school year in which a favorable decision for the Parents was rendered on May 24, 2011. Exh. C. I note that the Findings of Fact issued in the 20102011 matter indicate that a pendency hearing was conducted and an Interim Order issued. As litigation was ongoing during the March 2, 2011 CSE convene, the pendency provisions were in effect. As such, the “re-application” convene precluded the Committee from addressing its recommendations for drastic service reductions in its 2011-2012 IEP (relative to the then current and extensive pendency provisions). Tr. at 186. Clearly, this was an Annual Review and, as such, it was convened in the absence of a duly constituted Committee.

Chairperson ’s claim that the CSE had convened for the sole purpose of confirming the child’s current placement is totally at odds with the Parents’ concurrent request for supplemental services as indicated in the Minutes. Exh. 2. If a mundane “reapp” meeting convened, it did so at Dr. s sole discretion and by virtue of his refusal to address the disputed issue of supplemental services. Moreover, his allegation that the child’s related service mandate, including .’s supplemental program, could not be considered as this was not part of the “special education continuum” is mistaken. As such, the Parents were precluded from any discussion relating to “other programs and services.” Tr. at 191; Exh. 3.

Finally, Chairperson s explanation of the Parents’ due process rights prior to the supposed re-application meeting merely placed the Parents at an immediate disadvantage with an IEP to which they already objected, but were not able to discuss in full Committee. In other words, the meeting would continue without benefit of a parent representative, but the Parents could later appeal to CSE Chairperson . Dr. testified, “. . . the team did not have the ability to create an IEP with services above and beyond what the school would be in the position to implement. That the parent would have to send a written – send a request in writing to the – the our chairperson, -- (phonetic), and the determination would then have to be made as to whether or not, you know, what services would be appropriate and whether or not his current placement was still appropriate.” Tr. at 186-191. Rather than expeditiously addressing their concerns within the CSE convene, the Parents were instead referred to a process, external to the IDEIA, in which Chairperson would unilaterally ascertain the validity of their claims, absent the contribution of .’s related service providers. In this manner, the opportunity to work collaboratively with the Department of Education was precipitously foreclosed and the burden of convening a CSE to discuss FAPE was shifted to the Parents, as precious time elapsed. Alternatively, the could commence litigation.

It should be noted that it is incumbent, under the IDEIA, for the CSE to act in a proactive manner to insure the parents’ rights to a fair hearing. In the matter, sub judice, the Parents were misled as to the nature of the proceedings, prevented unilaterally from discussing changes to the child’s existing related services mandate and then precluded from exercising their right to a parent member pursuant to 8 NYCRR 200.5[c][2][v]); Educ. Law §4402 [1][b][1][a][viii]. Alone and in aggregate with other procedural and substantive issues, this infirmity unambiguously establishes a denial of FAPE (P.K. v. N.Y. City Dep’t of Educ., No. 09-1472 (2011), U.S. Dist. LEXIS 90534 [E.D.N.Y. Aug. 11, 2011]).

2. Is the IEP defective by virtue of its failure to incorporate a provision for parent training and counseling?

I note that there is no reference to parent counseling and education on the child’s IEP in violation of 34 C.F.R. § 300.320(a)(7) and 8 NYCRR §200.13. Exh. 3. In furtherance thereof, the courts have specifically established that an IEP’s adequacy must be determined within the four corners of the document. The Department of Education may not rely upon presumptive and speculative suggestions about what might or could have been provided (R.E. v. New York City Dep’t of Educ., 785 F. Supp. 2nd 28 [S.D.N.Y. 2011), appeal docketed, No. 11-1266 [2nd Cir. Apr. 1, 2011); R.K. v. New York City Dep’t. of Educ., No. 09-4478, 2011 U.S. Dist. LEXIS 32248 (E.D.N.Y. Jan. 21 2011(Magistrate’s Report), adopted 2011 U.S.Dist. LEXIS 32235 (E.D.N.Y. March 28, 2011), appeal docketed, No. 11-1474 (2nd Cir. April 15, 2011). See also Danielle G. v. New York City Dept. of Educ. 2008 WL 3286579 (E.D.N.Y. 2008).

Having said this, the mere failure to denominate the specifics of this service within the IEP document do not constitute a per se denial of FAPE. E.Z.-L., by her parents R.L. and A.Z. v. New York City Dep’t of Educ., 2011 U.S. Dist. LEXIS 6335 (S.D.N.Y., January 24, 2011) and K.Y. ex.rel. T.Y. v. New York City Dep’t. of Educ., 07 Civ. 3199, 2008 U.S. Dist. LEXIS 89827 at *20-21 (E.D.N.Y. July 2, 2008), aff’d 584 F.3d 412 (2nd Cir.2009), cert. denied, 130 S.Ct. 3277, 176 L.Ed. 2d 1183 (2010). Nevertheless, the facts at bar are factually distinguishable from the Department of Education cites.

Clearly, 8 NYCRR §200.13 (d) is a parent driven regulation which recognizes the unique needs of for generalization, instructional reinforcement and ADL training through home-based instruction. It anticipates that parents will be active participants in this component of their child’s education, engaging in direct instructional intervention, rather than delegating these responsibilities to others. Notwithstanding well settled criteria that a skill is not deemed “acquired” until it generalizes across non-school environments, Ms. testified that did not utilize any systemic program for generalization. Tr. at 607. In fact, this witness could not recall even discussing this issue with Master Teacher . Tr. at 432. A meaningful home-based program, however limited it may be, cannot reasonably occur where the child’s school does not support home programming with purposeful and substantive training on an on-going basis. In fact, parent success with a home-based program is ultimately a critical element vis-à-vis the maintenance of severely impaired students within the community. Both parents and school districts are well served by the presence of meaningful parent training and counseling, an opinion shared by Dr. . Tr. at 937.

In contrast with E.Z-.L., supra, the Parents’ experience at with their parent training program has hardly been meaningful. The quality of parent training must additionally be weighed along with a school’s assertion that it is providing parent training and counseling. In this calculus, I find that ’s training is little more than smoke and mirrors. At the time of hearing, Dr. testified that only three training sessions had been offered to ’s parents during the 2011-2012 school year. In fact, sessions were indefinitely suspended as ’s lone provider of the parent training sessions had left the position and was seeking a replacement. The position was unfilled for several months. On one additional occasion in September, no parents were present as had failed to furnish adequate notice. As of March 8, 2012, the parents had still not been informed that had retained a new responsible for conducting parent training. Tr. at 924.

Of the 185 students who attend , Dr. testified that only 7 families have availed themselves of ’s parent training. Tr. at 927-928. Indeed, following the December training, the parents shared their disappointment with each other concerning the trainer’s lack of familiarity with their children and his unresponsive to their issues. Tr. at 950-953. These attendance levels strongly suggest that ’s training is simply not meeting parental needs, a situation which has apparently done little to remedy. In the absence of training sessions, parents were invited to visit the school during the day although most working parents would find such services inaccessible, as did the .’s. Clearly, the facts at bar are easily distinguished from E.Z.-L, supra, a scenario in which even transportation and baby-sitting services were provided to parents so that they might participate ongoing training opportunities.

Although the witness easily testified that copies of s programs were available to parents, this is little more than a hollow representation unsupported by the evidence. In furtherance thereof, Dr. , as the Director of Clinical Services, was unaware of any homebased programs under s guidance, as was , the child’s teacher. Moreover, Dr. specifically testified that she was unaware of any parents who were engaging in formal home programs consistent with New York State regulations. Tr. at 935-938. While parents were invited to half hour observations of their children, an observation is an adjunct to formal instruction, but does not constitute or replace training itself. Tr. at 815.

Indeed, within the context of the limited half hour observation period permitted by , parents have a highly circumscribed opportunity to ask questions, model techniques, develop individualized home-based goals or discuss data. Similarly, parentteacher conferences do not serve the same purpose as individualized training for issues which, by nature, appear only at home. While one does not expect to assume complete responsibility for a home-based program, the lack of any home-based training, whether a student’s individual needs require it or not, is inconsistent with 8 NYCRR §200.13.

Beyond this, a glib referral in which parents are invited to observe day-time programming is not a panacea for the absence of training. The uncontroverted testimony indicates that scheduling an observation at is fraught with administrative difficulties, scheduling concerns and last minute cancellations even after parents have taken time off from their employment. Tr. at 970-974. Unfortunately, even the quality of training is questionable as there is no present in the classroom. Although a is assigned, his/her influence is minimal as, at best, there are only two certified individuals serving 185 students. Tr. at 63. For example, Ms. the Head Teacher, did not know what a BCBA was and the Head Teacher herself is not certified by any national board. Tr. at 331, 337338, 343. Similarly, Ms. testified that she has no training on how to develop a BIP. Beyond this, , the Master Teacher, did not know if any had been developed for ., but was nevertheless quick to assert that . did not need one. Although a BCBA is assigned to .’s classroom, none of the other children have a nor have they been assessed with an FBA. Tr. at 362-363. Rather, Ms. testified that she did not know whether the was part of AMAC’s instructional model. Tr. at 352. Finally, while Ms. opined that P.M. understood the relationship between his bracelets and the reward cart, I am not convinced that . has made the connection between his positive behaviors and the bracelets. This was not addressed by ’s witnesses and it is unclear whether the witnesses understood the distinction.

In fact, data collection regarding the occurrence of negative behaviors and the efficacy of ’s token system was only initiated by following her participation in these legal proceedings. The testimony follows: MS : All right. So, what you testified to, in your testimony here today and on the last date, is based on your opinion, is that correct?

MS. : Correct.

MS. : Okay. All right. Just hold on one minute. Anything else? Okay, and with respect to the token system, is it fair to say, when you said there was no behavior--no data on behaviors, that there is also no data with respect to the token system?

MS. : At the time, yes. We have started to take data now.

MS. Oh okay. When did you start doing that?

MS. : We started, I guess, after the last - - . I want to say probably January-- after the Christmas break.

MS. : Okay. And why was that? Why was the data collecting implemented?

MS. : Just on a data--on a data sheet that I made to see how many 1 bracelets had by the time the reward cart came. And why he doesn't--why he didn't get however many that he had by that time.

MS. : Okay. Did somebody tell you to implement data collection?

MS. : No. I thought it would be a good idea after our last hearing.

MS. : Okay. And why did you—why did you think that?

MS. : Because they kept asking me questions about it. Tr. at 621-623.

In view of the above, I find that AMAC stands in abrogation of its responsibility to provide meaningful parent training and counseling.

B. Do substantive defects warrant nullification of the child’s IEP?

1. Were the CSE proceedings compromised by the lack of appropriate evaluations?

The regulations further indicate that “School districts shall ensure that . . . (iv) assessments are selected and administered to ensure that, when an assessment is administered to a student with impaired sensory, manual or speaking skills, the assessment results accurately reflect the student's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the student's impaired sensory, manual or speaking skills, except where those skills are factors which the test purports to measure . . . .” See 8 NYCRR 200.4(b)(6)(iv). Moreover, there is no indication that mandatory evaluations were not performed within the prior three year period pursuant to 8 NYCRR 200.4(b)(4). The CSE proceeded with related service progress reports as well as contributions from the child’s teacher. A yearly observation was not mandated and, in any event, Ms. was present for the proceedings.

Having said this, is a non-public school, underwritten by the Department of Education. Its mission is devoted to the education of autistic children through the protocol of applied behavioral analysis. As such, ’s duty to provide empirical data must be held to a higher standard consistent with its expertise in and the proprietary nature of its relationship with the Department of Education. In furtherance thereof, it is ’s responsibility to maintain objective and quantifiable behavioral data as the extinction of these off-task behaviors is the linchpin for .’s success. Simply stated and as any novice teacher knows, classroom management precedes instruction. Exh. 12. If a child is^[9] engaging in , his access to instruction is marginal.

The regulations specifically provide that evaluative material shall include “. . . (v) other appropriate assessments or evaluations, including a assessment for a student whose his or her learning or that of others, as necessary to ascertain the physical, which contribute to the suspected disabilities.” See 8 NYCRR 200.4(b)(1)(4). While it is clear that much data is maintained on various programs during the day, the efficacy of these interventions is predicated upon the child’s ability to remain on task, absent interfering and negative behaviors. Although Ms. repeatedly testified that ’s , this patently ignores the issue of frequency and function. If ’s instructional periods reflect a disproportionate amount of time addressing off-task behavior, it does not matter how easily the re-direction occurs; precious instructional time is wasted repeatedly returning . to task. As it was not Ms. s policy to take behavioral data, clearly s determination that was based entirely upon subjective observation and opinion. In fact, even Ms. realized the value of and subsequently revised classroom protocol following her testimony.

In fact, both the child’s IEP and Quarterly Progress Report indicate that has a short attention span, requires frequent prompting to stay on task, and demonstrates behavioral challenges which “largely impact[s] his expressive, receptive and social language skills.” Exh. 3 at 3, 4; Exh. 6 at 2. The child’s eye contact is limited to three seconds. When frustrated, and . Exh. 3 at 5. His IEP goals include decreasing maladaptive behavior. Exh. 3 at 9. As per the . “has competing behaviors which include high distractibility, very short attention span, difficulties following commands, flopping arms and tantrums . . . He follows directions only about 30% of the time.” Exh. 5 at 2.

Most importantly, in January 2011, , the child’s special education teacher at . often intrudes into others (sic) personal space and has poor responding to redirection (emphasis added)” Exh. 7 at 4. Whether Ms. testified that were easily re-directed and presented little or no problem, the record speaks otherwise. At the very least, there is a legitimate question as to the effectiveness of behavior management techniques where constructive engagement occurs less than 30 % of the time. A mere “check-off” by Ms. reflecting stock verbiage, to wit: “ and can be addressed by the special education classroom teacher” is not persuasive in context with other reports and assessments incorporated into the child’s IEP. Given the difference in opinion regarding the difficulty and frequency of , it is clear that a quantitative approach would have clarified the need for an . Similarly, it raises a legitimate question as to why these individuals, especially Mr. were not called upon to testify. On this particular fact, I find neither Ms. nor Mr. credible.

As a legal matter, the Southern District of New York has held that if reports and assessments produced by or relied upon by the School District are not sufficiently accurate and complete for the purposes of designing a child’s IEP, the responsibility for the deficiency lies with the school district, not the parents. (A.D. v. New York City Department of Education, 690 F. Supp. 2nd 193 at 208 [SDNY 2010]). Educational law requires that a district (1) ensure that adequate evaluative information has been obtained with regard to the student’s areas of need, (2) consider any other information provided by the parents including private evaluations, and (3) recommend an IEP that was reasonably calculated to enable the student to receive educational benefits in the least restrictive environment. (20 U.S.C. Sect. 1412[a][5][A], 1414[b][2][A]; 34 C.F.R. Sect. 300.114]a][2][i], 300.116[a][2], 300.304[b][1][ii]; see Rowley, 458 U.S. at 192; Newington, 546 F.3d at 114; Gagliardo, 489 F.3d at 108; Mrs. B, 103 F.3d at 1120; M.H., 2011 WL 609880, at *10; see also Letter to Clarke, 48 IDELR 77 [OSEP 2007]; 8 NYCRR 200.1[cc], 200.6[a][1]). Although behavioral data is integral to the success of AMAC’s program, this is ironically the one area in which the School does not take data. This omission, however, does not render the entire program inappropriate but does reflect inadequacies in its assessment of .’s current levels of performance. Given s representations of its expertise, moreover, these deficits are indicative of a subjective protocol anathema to ideology.

2. Did . require an ?

The IDEIA requires that, in developing an IEP for "a child whose behavior impedes [his other] learning," the school district must "consider the use of positive behavioral interventions . . . to address that behavior.'" 20 U.S.C. § 1414(d)(3)(B)(i); see also A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]. This mandate is essentially the springboard for the development of an , which provides detailed information about a student's problem behaviors, and a , which provides strategies to reduce those behaviors. See N.Y. Comp. Codes R. & Regs. Tit. 8, § 200.22(a)-(b). Ms. Chen’s use of re-direction is merely a reactive process which focuses exclusively upon the physical topography of . Given this scenario, it is not surprising that the child’s have perseverated as the underlying causes have not been addressed.

It is clear, however, that "[F]ailure to conduct an FBA Department of Educations not render an IEP procedurally inadequate where the IEP provides strategies to address the student's behavior."); M.N. & H.N., 700 F. Supp. 2d at 366 see also A.C., 553 F.3d at 172-73; M.H. & E.K. v. N.Y. City Dep't of Educ., 712 F. Supp. 2d 125, 159 (S.D.N.Y. 2010). Again the case is easily distinguished from E.Z.-L., cited by the Department of Education. In that matter, the child’s teacher confirmed that Z.-L.’s needed to be addressed, , opining that Z.-L. did not need a as long as she received her Moreover, viewed in context with several recommended interventions on E.Z.-L’s IEP, the child’s behaviors would, in fact, be addressed appropriately.

While IEP references many , the IEP goals are expressed generically. Beyond this, there is no baseline data nor is there any meaningful response or mastery criterion. There is no provision for quantification for either short term objectives or annual goals. In fact, some of the short-term objectives reflect skills which the child already has. ^[10] Again, there is no accountability for how the efficacy of these interventions will be assessed. Unlike E.Z.-L, the IEP makes no provision for the establishment of appropriate and nor Department of Educations it reference the use of a sensory diet to address Under these circumstances, s accountability is illusory. Assuming, that did interfere with his learning, I do not believe the IEP reflects meaningful and individualized strategies for addressing these management issues. In contrast, the starkly polarized opinions of ’s prior special education teacher and his providers regarding .’s on task performance at the very least compel the need for empirical data.^[11]

3. Did improperly fail to obtain an assistive technology evaluation, and if so, are the Parents entitled to reimbursement for the purchase of an I-pad?

As per 8 NYCRR §200.1(e), assistive technology device means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a student with a disability. Such term does not include a medical device that is surgically implanted, or the replacement of such a device. See also 8 NYCRR § 200.1(f); 20 U.S.C. § 1414(d)(3)(B)(v). At the outset, the evidence indicates that . was capable of utilizing a PECS system and possessed emergent language. Similarly, the progress reports and testimony do not suggest any need for software, hardware or peripherals which the child is not already using. While many I-pad applications provide enhanced learning opportunities, the evidence indicates that Department of Educations not require this technology in order to benefit from his instructional program. See 8 NYCRR 200.^[4] [c][2][vii]. Rather, the I-pad falls within the realm of optimal rather than appropriate educational services. Moreover, there is no indication that the parents ever requested an assistive technology evaluation or brought .’s I-pad into school. Under these circumstances, the Parents have not established an equitable entitlement to reimbursement for an I-pad. Having said this, it is disappointing that has not adopted the wide-spread use of I-pad technology which has become so common among educational programs (both private and public) addressing the needs of autistic students. IEP are inadequate. Nevertheless, this is ’s structure and it is unreasonable to expect the School to re-organize its program to accommodate one student. Having said this, ’s protocol militates against the individualization of services, pre-determining for all students what is appropriate. In accepting this placement, the Parents were well aware of its limitations.

In view of all of the above, these procedural and substantive violations cumulatively establish a violation of FAPE. P.K. v. N.Y. City Dep’t of Educ., No. 091472, 2011 U.S. Dist. LEXIS 90534 (E.D.N.Y. Aug. 11, 2011), (order adopting “Report and Recommendation,” No. 09-1472, 2011 U.S. Dist. LEXIS 90462 (E.D.N.Y. Mar. 17, 2011), appeal docketed, No. 11-3525 (2nd Cir. August 30, 2011), see also R.E. v. N.Y. City Dep’t of Educ., 785 F. Supp. 2n 28 (S.D.N.Y. 2011) and R.K. v. N.Y. City Dep’t of Educ., 2011 U.S. Dist. LEXIS 32248 (E.D.N.Y. Jan. 21, 2011). This issue now concerns the appropriateness of the Parents’ request. Point II: Pursuant to School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985], was AMAC an Appropriate School for P.M. during the 2011-2012 school year?

The Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a Parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the Parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir.2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the Parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it Department of Educations not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school Department of Educations not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, Parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]).

At the outset, the parties agree that the program offered at correlates well with the student’s functional needs. is a New York State approved Day school which provides . Rather, it is the extensive home-based program which is the subject of this litigation. Specifically, the Parents request reimbursement or prospective payment for an additional:

Eight (8) hours per week of therapy

Two (2) hours per week of parent training

Two (2) hours per month of supervision

Three (3) hours per week of therapy

Four (4) hours per week of therapy

Three (3) hours per week of physical therapy

Transportation costs, and

A compensatory award for any pendency services to which . was entitled but did not receive. Exh. A.

In total, the Parents are seeking an additional 18 hours of direct service for . as well as two hours of Parent training per week and two hours of additional supervision.

The Department of Education, in its brief, cites to several non-controlling jurisdictions regarding a School District’s obligation to furnish home-based services in the interests of skills generalization. These cases are, in fact, consistent with the IDEIA’s mandate that services be individualized for each child, underscoring the fact that pre-determination and automaticity are antithetical to the IDEIA. As such, the cases cited by the Department of Education stand for the principal that, as a matter of course an LEA is not obligated to design educational programs to address a student's difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom (see Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 [1st Cir. 2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v. Hendry County Sch Bd., 941 F.2d 1563, 1573 [11th Cir 1991]). Simply stated, the key words are “as a matter of course.”

Thompson R2-J, supra, is particularly instructive. Notwithstanding its determination that the IDEIA does not guarantee self-sufficiency, the Thompson R2-J court unequivocally acknowledged that “in some instances difficulty generalizing skills may be so severe that it prevents a student from receiving any educational benefit. In that case, the IEP would need to address it in some fashion, albeit maybe not in a residential placement.” Thompson R2-J at 1143. In fact, it is difficult to reconcile this decision with the basic behavioral tenets associated with either the acquisition of a skill 12 or an LEA’s mandate to facilitate transition skills. In fact, it is crystal clear from Thompson R2-J’s footnotes that this is hardly a rousing defense of its own decision, one clearly compelled by the tenets of stare decisis and little more. Ibid. ^[13]

12 A skill is not acquired until it generalizes to other environments.

Turning to the matter at bar, the evidence indicates that a ten year old child, boards a school bus between 7:00 a.m. and 7:15 a.m. On most days, he is engaged in some form of related service therapy until 8:00 p.m. after traveling by subway to and from various therapy centers. Although the Parents have suggested that this schedule is not overwhelming for the testimony of , the child’s home-based ABA provider suggests otherwise. Tr. at 113-114, 490. Ms. testified that, as a result of other related services, . sometimes gets home 7:00. So, if he is not – ” Ibid. at 490. Although the Department of Education suggests that generalization is the main thrust of her services at home, this is a distortion of Ms. testimony. Rather, she testified that it is “a part” of her therapy. Tr. at 492.

Given the inadequate behavioral program at , the absence of parent training and the global needs of the student as documented through his progress reports, I believe . should continue receiving therapy in his home program. However, I do not believe he should receive his additional complement of related services as all of these can be addressed in school and within the context of home-based failures do not translate into unlimited educational access via the deep pockets of the Department of Education. While it is true that the Parents are entitled to reimbursement of their private placement, I find that the extent of services requested is excessive and therefore inappropriate. See DeLullo courts. Though one can well argue that generalization is a critical skill for self-sufficiency and independence, we cannot agree with [the parents] that [the] IDEA always attaches essential importance to it."). 42 Id. at 1152 (citing Gonzalez, 254 F.3d at 353). 43 Id. ("In such situations, our sister court held, an IEP 'must address such problems in some fashion, even if they do not warrant residential placement.' " (quoting Gonzalez, 254 F.3d at 353)). 45 Compare Thompson R2-J Sch. Dist., 540 F.3d 1143, with K.C. ex rel. M.C. v. Mansfield Indep. Sch. Dist., 618 F. Supp. 2d 568 (N.D. Tex. 2009). [T]he IDEA defines "transition services" as a coordinated set of activities within a results-oriented process focused on improving the academic and functional achievement of the child to facilitate movement to post-school activities based on the individual child's needs, strengths, preferences, and interests and "includes instruction, related services, community experiences, the development of employment and other postschool adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation." Id. at 574 (quoting 20 U.S.C.A. § 1401(34)(C) (West 2010); see New Milford Bd. of Educ. v. C.R. ex rel. T.R., Civ. A. No. 09-328 (JLL), 2010 WL 2571343, at *3 (D.N.J. June 22,

2010) ("The education provided under the IDEA must be constructed so as to meet a disabled child's unique needs and provide 'significant learning,' including a meaningful educational benefit in the least restrictive environment." (citing D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 556 (3d Cir. 2010). Ex. Rel. DeLullo v. Jefferson Bd. of Educ. 71 F.Supp.2nd 554 (N.D. W. Va. 1998), aff’d No. 98-1941, 1999 U.S. App. LEXIS 23118 (4th Cir. Sept. 23, 1999). Is the Parent entitled to equitable relief pursuant to Burlington, supra, for the 20112012 school year?

The record does not indicate any equitable factors which militate against an award of reimbursement. It is clear that the Parents’ concerns about .’s program have been articulated repeatedly. The Department of Education’s suggestion that the Parents refused to exchange related service evaluations or progress reports is ridiculous as none of these reports were available until litigation had been initiated. Nevertheless, these providers have been encouraged to contact personnel and visit and they have done so. The Parents have attended training sessions at when scheduled and notified appropriately. They have participated in observations on at least a monthly basis and have purchased educational materials for their son when necessary. Under these circumstances, there is no reason to believe the Parents have not met their equitable obligations. Conclusion

The Parents’ request is granted and denied in part. Wherefore, it is hereby ordered that:

The Department of Education shall amend the child’s IEP to include the following services to be provided by related service authorizations:

1. The Department of Education shall continue to fund for the 2011-2012 school year.

2. The child shall receive 10 hours of home-based direct per week inclusive of parent training as a supplement to the full-time, 12 month educational program he is receiving at .

3. An additional two hours per month shall be authorized for home-based supervision.

4. The Parents shall be deemed the prevailing party. Dated: April 25, 2012

_______________________________________

LYNN BOTWINIK ALMELEH, ESQ.

Impartial Hearing Officer

LBA: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 Demand for Due Process and Fax Confirmation, 6/30/11, 11 pp. B Amended Demand for Due Process and Fax Confirmation, 7/15/11, 10 pp. C Findings of Fact and Decision By: Susan C. Lushing, Esq., 5/24/11, 15 pp. D NYC DOE IEP, 6/21/11, 22 pp. E NYC DOE Due Process Response, 7/6/11 and 7/22/11, 9 pp. F Physical Therapy Quarterly Progress Report By: , , PT,

8/5/11, 3 pp. G Speech/Language Quarterly Progress Report By: , TSSLD,

8/5/11, 2 pp. H Related Service Progress Report By: , ,

, /L, MS OTR/L, 8/4/11, 2 pp. I Physical Therapy Progress Report By:

OT, Inc., , PT, DPT, PT, DPT, 8/4/11, 3 pp. J Speech Progress Report By: , Inc.,

, M.S., CCC-SLP, 8/4/11, 2 pp. K Occupational Therapy Quarter Progress Report By: , 8/2011, 2 pp. L Related Service Student Progress Note By , MA CCC-SLP, 6/30/11, 1 p. M Follow-Up Behavioral Evaluation By: , MA, Ph.D., , Ph.D., 6/7/11, 5 pp. N Educational Progress Report By: , Special Ed. Teacher,

6/2011, 4 pp. O Speech/Language Quarterly Progress By: , TSSLD,

5/27/11, 2 pp. P Quarterly Report By: , MS,

OTR/L, 5/19/11, 2 pp. Q School Report Card (2010-201), 4/25/11, 2 pp. R Related Service Student Progress Report By: , MA CCC-SLP, TSHH, 4/17/11, 4 pp. S Quarter Progress Report By: AMAC, 1/2011, 2 pp. T Educational Progress Report By: , MA,

Special Education Teacher, 1/2011, 4 pp. U Annual Report By: , PT,

1/2011, 2 pp. V Annual Progress Report, By: Wang, PT,

1/2011, 3 pp. W NYC DOE Final Notice of Recommendation (FNR), 3/2/11, 1 p. X Certifications, Undated, 4 pp. Y Certifications and Resume, Undated, 4 pp. Z Certifications, Undated, 2 pp. AA Certificate, Undated, 1 p. BB Dee Certificate, Undated, 1 p. CC Certificate and License Information, Undated, 2 pp. NN Physical Therapy Quarterly Report By: , , PT, 5/23/11, 3 pp. OO Report By: , M.A., BCBA, 4/18/10, 2 pp. PP Program Overview By: , Undated, 4 pp. QQ Data, By: , 1/2011-9/2011, 12 pp. RR Related Services Student Progress Report By: ,

, DPT, 10/3/11, 4 pp. SS NYC DOE Individualized Education Program, 3/2/11, 22 pp. TT Report By: , M.A., BCBA, 11/1/11, 3 pp. UU Invoices, 7/31/11, 8/31/11, 9/30/11, 10/31/11, 4 pp. VV New York City of Education RSAa-7a Billing Form for Independent Providers of Related Services, 9/2011, 10/2011, 11/4/11, 8 pp. WW Proof of Payment-Transportation Costs, 5/2011, 6/2011, 8/2011, 9/2011, 8 pp. XX DOE Related and Support Services, 2010-2011, 43 pp. YY Invoice from Apple Store for IPad, 9/28/11, 2 pp. ZZ IHO Joyner Findings of Fact, 10/19/09, 9 pp. AAA Excerpts Communication Book, 11/8/11-11/9/11, 2 pp. BBB Calendar, 3/2012, 1 p.

DEPARTMENT OF EDUCATION

1 Due Process Complaint and Fax Transmission, 6/30/11, 10 pp. 2 CSE Review Rationale, 3/2/11, 2 pp. 3 IEP, 3/2/11, 23 pp. 4 FNR, 3/2/11, 1 p. 5 Report, 12/2010, 3 pp. 6 Report, 1/2011, 2 pp. 7 Educational Progress Report, 1/2011, 4 pp. 8 Report, 1/2011, 2 pp. 9 Due Process Response, 9/13/11, 4 pp. 10 IEP, 3/8/10, 18 pp. 11 Data, Undated, 18 pp. 12 Mastered Step Sheets, Various Dates, 9 pp. 13 Communications, 10 pp.

IMPARTIAL HEARING OFFICER

I Order on Pendency, 7/18/11, 3 pp. II DOE Memorandum of Law, 4/6/12, 27 pp. III Petitioner’s Post-Hearing Brief, 4/9/12, 26 pp.

---

Footnotes

[3] is located a significant distance from the Parents’ home.

[5] He did not specifically offer them to the Department of Education as he presumed itself would furnish these to the Department of Education. Tr. at 840-841. The certified individual providing parent training at the time on behalf of

[7] The re-application convene was frequently referenced by the witness and various documents as a “re-app.”

[8] The Standard Operating Procedural Manual can be found at http://schools.nyc.gov/NR/rdonlyres/5F3A5562-563C-4870-871F-B9156EEE60B/0/03062009SOPM.pdf).

[9] i.e. non-contextual vocalizations (Exh. 7 at 1); pulling his hair, placing fingers into ears and aimless walking about the classroom (Exh. 3 at 4)

[10] Within the same document, it indicates that . “greets staff with minimal prompting” and makes eye contact for “up to three seconds.” Exh. 3 at 5.

[4] Is ’s related service programming reasonably calculated to confer an educational benefit upon P.M. during the 2011-2012 school year? The testimony indicates that can only meet a student’s related service mandate via 30 minute sessions. While this may be appropriate for some children, this half hour period Department of Educations not consider the time factor inherent in .’s ongoing . Given this constellation of maladaptive behaviors, and the fact that even agrees that . can only tolerate 3 seconds of on-task behavior, the related services offered within .’s

[11] Only three individuals testified on behalf of the Department of Education. This did not include the child’s former teacher or any related service providers.

[13] Thompson R2-JSch. Dist., 540 F.3d at 1150-51 ("We are constrained to agree with the school district and our sister