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: Parents

Dates of Hearing: July 26, 2011

September 21, 2011

November 21, 2011

November 23, 2011

December 9, 2011

Actual Record Closed Date: January 17, 2012

Hearing Officer:

CORRECTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 26, 2011

Esq. Attorney — Parents

Esq. Attorney — DOE

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

Esq. Attorney — Parents

Father — Parents

Esq. Attorney — DOE

Dr. School Psychologist — DOE

(via telephone)

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

Attorney — Parents

Mother — Parents

Esq. Attorney — DOE

Teacher- — DOE

(via telephone)

Teacher- — DOE

(via telephone)

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

Esq. Attorney — Parents

Father — Parents

Dr. Supervisor — Parents

(via telephone)

Esq. Attorney — DOE

Program Coordinator Campus- — DOE

(via telephone

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

Attorney — Parents

Mother — Parents

Pathologist — Parents

(via telephone)

Esq. Attorney — DOE

Hearing Officer‟s Findings of Fact and Decision ^[2] On July 26, 2011, September 21, 2011, November 21, 2011, November 23, 2011 and December 9, 2011, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

The proceeding was initiated at the request of the parent by correspondence dated July 1, 2011. (Ex. A) I was appointed Impartial Hearing Officer on July 5, 2011. The resolution period ended on July 14, 2011. The initial hearing in this matter was held on July 26, 2011.

An Interim Order on Pendency issued by me on August 15, 2011 and based upon the Final Decision and Order of Impartial Hearing Officer (“IHO”) , Esq., dated February 8, 2010, required that from July 1, 2011 until issuance of this decision the DOE fund the following services in a 12 month program:

1. Three (3) 60 minute sessions of therapy ( ) pursuant to an RSA;

3. Up to 16 hours per week of home based ”) at a rate of $90 per hour.

4. Up to one (1) hour per month for a team meeting for home based services at a rate of $90 per hour;

5. Up to two (2) one hour sessions of parent training and counseling at a rate of $ per hour. (Ex. II)

The initial compliance date in this matter was August 29, 2011. The parties moved to extend the compliance date on five occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and the required documentation provided to the parties. (T. 18, 34, 220, 226, 228, 466, 767, 768, Ex. IV)

The current compliance date is January 27, 2011. The record closed on January 17, 2012, upon my receipt of all post-closing memoranda.

BACKGROUND AND POSITIONS OF THE PARTIES

At the time of complaint filing, the student was years old and attending School (“ ”) at its . (Ex. A) He has been enrolled at the school since transitioning from the CPSE in age (T. 742) , a non public school (“NPS”) approved by the New York State Department of Education as a school with which districts may contract for the delivery of special education services. It is an based school with most if not all its students on the . (T. 79, 743)

The student has received home based services since age and throughout his enrollment at . (T. 743-744) From at least July 1, 2009 through February 8, 2010, the student received 12 hours per week of . (Ex. B, see T. 640) Thereafter, pursuant to IHO orders the mandate was increased to 16 hours per weeks. (Exs. B, C, II). Sixty minutes monthly for team meetings and two hours monthly of parent training were also provided. (Exs. B,C, II)

On June 11, 2011, the CSE convened to develop a program for the 2011-2012 school year („the review”). The classification continued to be and the team recommended a state-approved day school ( ) in a 12 month program. (Ex. 1-1) Although a specific school was not identified on the IEP, all present understood that the student would remain at . (T. 77-78, 244) The CSE recommended continuation of (“ ”) and Therapy (“ ”) as previously provided: - three (3) 30 minute sessions ( ) at school and two (2) 60 minute sessions (1:1) outside of school; - three (3) 30 minute sessions (1:1) at school and three (3) 60 minute sessions outside of school. (Ex. 1-17) The team also added a full time para and a . (Ex. 1-2, 1-6) Home-based team meetings and parent training were not provided and not discussed in the IEP. (Ex. 1)

The parents do not contest the placement at or the related services recommendation. The sole dispute is DOE‟s refusal to provide the home based direct services, team meetings and parent training (T. 712-713). The parents assert that this is required to enable the student to make meaningful educational gains. They claim that the IEP is procedurally and substantively defective and that the DOE has failed to provide a free appropriate public education (“FAPE”), that the program they propose is appropriate for this student and that there are no equitable considerations which bar or limit relief. The parents claim entitlement to the requested relief based upon a Burlington/Carter analysis and seek direct DOE funding. (Ex. III-30)

The DOE asserts that procedural violations, if any, did not impede the student‟s right to a FAPE, significantly impede the parents‟ opportunity to meaningfully participate in the decision making process or cause a deprivation of educational benefits. 20 U.S.C. §1415(f)(3)(E)(ii). Further, the DOE asserts the IEP was reasonably calculated to enable to enable the student to make meaningful educational gains and was not substantively defective. The DOE disputes that the parents‟ program is appropriate and contends that in any event equitable considerations support barring the relief sought. (Ex. III)

WITNESSES PRESENTED

A. DOE

The DOE presented the testimony of the following witnesses: Dr (“ ”), who participated in the review as school psychologist and district representative (T. 61) ; ”), who taught the student for most of the 2010-2011 school year and who participated in the review; ”), the student‟s teacher in the 2011-2012 school year; ”), currently Program Coordinator at .

B. Parents The parents presented the testimony of the following witnesses: Dr. (“ ”), coordinator of the student‟s home program and provider of at home services; (“ ”), ; the student‟s mother.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

Prong 1:

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

The evidence shows that that the review team included a school psychologist ( ), a school social worker, the student‟s then current special education teacher ( ), the then current program coordinator of the school and the student‟s parents. (Ex. 1) Documents before the team included teacher progress reports (Exs. 3, 4) related service provider reports from providers at the school (Ex. 7), charts of (Ex. 6), a (Ex. 5) and a draft IEP, including a , that was almost entirely prepared by the school. (T. 64-66)

Based upon the information provided in the documents and by review participants

(T. 66-70, 136-137, 240, 254, 260), the team determined and the IEP detailed that the student has been diagnosed with “… accompanied by and .” (Ex. 1-4) He was also diagnosed with about a year and a half ago and is . (Ex. 1-6) The IEP: stated that the student, a levels in reading and math skills but for decoding in which he had a level: specified that the student was making “steady academic progress in several academic domains”; outlined management needs including individualized instruction and high rates of reinforcement for and noted good response to . (Ex. 1-3) In sum, the team considered that the student had . (T. 69-70)

With regard to , he was described as , and . (Ex. 1) The review team was provided with information concerning frequency of behaviors which included in one day. (T. 131-133) However, engagement in games with peers with minimal prompting was reported. The IEP noted the and and . The team concluded that an additional adult was required to effectively monitor the and ensure to task and recommended a to , particularly the very high level of behaviors. (T. 79-81, 92-93, 99, 131, 244, 259, Ex. 1-2 and 1-5)

The meeting lasted about 30-45 minutes. (T. 210) The parents have not disputed the testimony that at the conclusion of the hearing no objections to the recommendations were expressed. (T. 85, 242) testified as to their belief that the DOE program would enable the student to make meaningful educational gains. (T. 86, 250-251) , testified as to past progress at , although stated that at times it was not highly significant. (T. 92, 241, 250-251, 482, 502, Ex. F) , the student‟s current teacher, testified as to the progress the student is making in the 2011-2012 school year. (T. 428, 428, 451)

testified that the team came in as a “blank slate” with regard what should be recommended. (T. 75) testified that he had not made up his mind prior to the meeting about the IEP contents (T. 244) and that he believed that the parents had a full opportunity to express concerns and raise issues and that the result was not predetermined. (T. 289)

With regard to opined that it was not necessary in order to provide the student with meaningful educational benefit (T. 86, 180) She added that she believed 16 hours of home would be too restrictive for any student especially one with this student‟s level of delays. (T. 87) She believed it would not leave him time to “decompress and engage in activities more developmentally appropriate…” (T. 87) like or engaging in preferred activities. (T. 89) She also stated that “through would also learn to help him generalize, which in my opinion is probably the best scenario since it would .” (T. 90) She testified with regard to ‟s report (Ex. I) (“the report”) that she could not recall when she first saw it but it did not change her opinion as to the appropriateness of what the team recommended. (T. 88-90) The student had a number of strengths, she said, and “…wouldn‟t necessarily terribly between dismissal and the beginning of the next school day.” (T. 78)

The parents claim that at the review the DOE would not consider any home hours when it was brought up by the mother. (T. 754 ) The parents assert that the student‟s progress at was dependent on the home program and that the student would not Although they are satisfied with the program at the school, they note that the student had substantial at throughout his time at the school and they claim that was essential for the progress he made.

testified with regard the student‟s needs that the student‟s biggest deficit is to engage in meaningful - and that he also has difficulty in . (T. 523-524, 534) The student unless they are presented discretely, with repetition and reinforcement. (T. 524,

534) He is . (T. 524) achieving progress , . (T. 648) In about February 2010, the student‟s 12 weekly hours of at was increased to 16. (Ex. B) testified that she recommended that increase at that time because of how long it was taking to master goals due to the student‟s increased needs at that time and that that increase has been effective and the same number of hours is still required. (T. 640, 676) In the 2011-2012 school year there was a spike in those behaviors but the escape behavior of asking to go the bathroom has . (T. 650) Among other things, Map, a verbally based milestone assessment tool, and New York State standards to introduce programming and evaluate mastery. (T. 559-560, 572) Data from programming was collected daily and graphed.

(T. 559, 561) The Map shows that the student‟s deficits are still “ ” with development falling in the to month range in some areas. (T. 573) Looking at other students on the this student‟s impairments were “ (T. 607) and he was “ disabled” with regard to other children on the (T. 613) although he may have some skills that some others lack. (T. 610)

strongly recommends continuation of the services in a highly structured format because although the student has made progress in acquiring skills, he continues to requires , a high degree of supervision and a high number of repetitions to master short term goals and learn the skills (T. 565-569, Ex. I) Daily practice helps meet goals more quickly and in maintaining skills. (T. 679, 689) Although it was her belief that the school provided repetition, reinforcement and fading as well as addressed other appropriate instructional concerns and the student had made progress (T. 614-616, 622), she stated that the home program was still working on a considerable number of academics because the student required a lot of repetition to master those skills and if not continued at home he would not learn them. (T. 620-621) In addition, certain necessary . (T. 621) opined with 100 % certainty that the – did not receive he requires to make progress. (T. 680-681, 689) She acknowledged, however, that she could not say for certain exactly or with 100% certainty what his rate of progress would be if the level of services he currently receives is reduced or how much of the academic progress made in complementary or overlapping programs can be attributed exclusively to the home program. (T. 623, 625) With regard to the effect of the team‟s addition of a to the appropriateness of the student‟s program, testified that his level of responding to his aide was very positive and that he was transitioning well. (T. 596-597) She stated, however, that that did not affect her recommendation that he needs a home program for the reasons previously detailed. (T. 597)

pathologist testified persuasively that the student‟s sessions included . (T. 712-713, 718-719) She stated that as she received from the school in the past had not been . (T. 723, 724, 736, 737, 738) that very little progress would have been made without the support received from the providers. (T. 722) She stated that in the 20112012 school year, his provided methods resulting in to . (T. 712-713 720-721, 724, 725-726) However, she stated that she was unable to know “exactly” what the student‟s rate of progress in his would have been without services. (T. 731) She noted that throughout her work with this student he has been receiving that. (T. 730-731)

The student‟s mother testified that there are resulting from the student entering puberty, with resulting , as well as adverse effects of and that as a consequence there was a significant increase this school year in . (T. 742, 748) The student‟s to be as a that lasted until about October 2011. (T. 746-748, 750) Mother stated during this period in getting the . (T. 749) She believes that during the 2011-2012 school year and that the program is even more essential as .” (T. 745) In her opinion without the home program he would not be making the progress being made now. (T. 753) She stated that the home program provides the additional time needed to acquire skills as well as enable the targeting of . (T. 763)

With regard to the parents‟ claims concerning the IEP, I find as follows:

A.

With regard to the at the review, that she could not now recall whether she knew at the time of the review that the student was receiving at . (T. 127, 157) She also testified that she could not recall one way or the other whether the parents had made a request at the review although she claimed that it been it would have been considered.

(T. 86, 157, 200) stated that he did not remember the parents bringing up the issue. (T. 243, 356) I find credible, however, the mother‟s testimony that she raised the subject of after school at the review and was told it could not be considered. (T. 754) Material prepared by were accepted, she said, but the parents were told her goals would not be incorporated in the IEP (T. 754) I note with regard to my finding that report with recommendations, dated June 8, 2012, appears to have been prepared for submission to the team. (Ex. I) Further, testified that various outside provider documents were handed to a DOE member although he could not specify to which one. (T. 241, 357, 3878-390) It is noteworthy that neither none of those documents were listed by as having been considered although I find that the evidence establishes that a team member received them. The mother did not specify to whom the materials were given and it is possible that her interaction was not with but rather with the other DOE participant and that and were not fully aware of it. However, I conclude that at the review the parents sought consideration of at . When parents are informed at a review by a DOE team member that something will not be considered, I conclude that that representation constitutes a DOE denial. Parental repetition after that denial is not required to demonstrate that the issue was raised. Based upon the foregoing I find that the parents were precluded from presenting their concerns. I therefore conclude that the parents were denied a meaningful opportunity to participate in the IEP development process. See, Application of the XXX, Appeal No. 10-070

B.

Further, the review team should have considered after school hours even had not the parents specifically raised it. I conclude that the team knew or should have known that at the time of the review the student was receiving substantial hours each week and note that at least and the then program coordinator did. (T. 352, 353, 387) The DOE was paying for those hours as a consequence of an impartial hearing order and they were a longtime part of the student‟s program whether recommended by a CSE or not. As a consequence of the most recent impartial hearing decision, the student‟s instructional time was likely increased some 40-50 % above what the school provided. (T. 531-540, 542-544, 556-557, 620-621, Ex. I) Moreover, at home instruction was entirely which was not the case in the school. Accordingly, the team should have considered whether the home program it was paying for was contributing to the student‟s past gains. It did not do so. C.

I turn to whether the DOE has established that the IEP it developed was reasonably calculated to enable the student to make meaningful gains. I conclude that it has not.

First, I note that the student has been receiving additional support throughout his attendance at . I conclude that the progress reported in the evaluative materials considered by the team are not such that it is reasonable to conclude from them that at least appropriate, albeit reduced, progress could be made without the additional support. (Exs. 4,7)

Further, I give concerning the appropriateness of the DOE‟s program little weight. I note that or met the student and never previously reviewed him. (T. 126,

209) The first information she received about the student was when she arrived for the review and was handed a packet. (T. 209-210) She never worked in a home ABA program or, indeed, had ever seen one. (T. 126, 127) stated that she did not believe that her lack of observation of the student at home inhibited her ability to understand what the process involved or the implications of it for the student. (T. 174) However, although has a doctorate in psychology and is a licensed school psychologist (T. 58), the evidence shows that her experience with students on the consisted of four years as the DOE “point person” for some schools with some , her having conducted an unspecified number of unspecified tests of at a non public school and having done some evaluations for the sole purpose of classification. (T. 122-125, 172) She was not the point person for and did not observe anyone at the school and her only visit there was to conduct IEP meetings. (T. 124, 126)

There was no concerning any specific education or training with regard to instructional methodologies to give weight to her opinions concerning the harmfulness of an intensive after school for this student, her proposals concerning what would benefit him or her opinion that he could make appropriate progress absent a home program. Indeed, although she testified that home-based programming would “limit him from engaging in preferred activities persuasively testified that the student would engage in problem behaviors. (T. 549-550) Further, I find that the DOE‟s claims that its program is appropriate are not bolstered by the school witnesses. specifically stated that although she knew the school did the best it could and the student was making progress, she was not expressing an opinion as to whether he could make progress if he did not have a home program. (T. 463) ‟s only training in and/or and he had been a teacher of students for only about 10 months at the time of the review. (T. 231, 232, 294) His sole experience of this student with the home program. testified on direct examination with regard to whether the student needed a home based component to be successful during the school day: “As I said, I know that he can come in and make the progress during the school day so I mean, I can‟t say yes or no, I can just say that I know that he can come in every day and he is able to generalize and is to during the school day.” (T. 251) He opined that it was possible, he could not say for sure, that if the . (T. 251) Although pressed by DOE counsel, he expressed only a “feeling” that the student could make progress without the home component. (T. 252) I find that support for the DOE‟s proposed program.

is the Program Coordinator at the school‟s , in effect the director there. (T. 478) In response to a CSE request from the CSE for her opinion about after the instant impartial hearing request was filed, services are an essential piece to the education of this child.” She added that the school had worked closely with the home-based team and that the .

(T. 482, 502, Ex. F) She spoke with at about the student before making that response.

(T. 496, 503) At the instant hearing, she testified that although she was sure that it could be helpful, she was not familiar enough, then or now, with the student or the home program to state that was essential and supplied the e-mail only to support the parents.

(T. 483-484) She added that she just could not say either way whether it was essential and that perhaps she chose the wrong word. (T. 486-487) Further, she stated that she did not know about whether the home providers were successful in carrying over the program to the home as she had also written. (T. 494-495, Ex. F) Even if reliable, testimony does not support the DOE‟s position. However, in special education and school leadership and had worked at since 2004 and at the time was the . (T. 481, 478) She has completed all course work and training hours for a (T. 481, 490, 493-494) Accordingly, I conclude she was knowledgeable about both home and the impartial hearing process and familiar with the meaning of “essential” and its significance in this context. I do not credit the testimony that she simply was trying to help the parents out but rather conclude that her e-mail accurately reflected, at a minimum, information that had been provided by school staff.

In this matter, I find credible and persuasive the testimony of concerning the student‟s deficits and needs, including his need for after school repetition to learn new skills at school and to prevent regression. I note with regard to that finding that is knowledgeable about the strengths of the program. (T. 517) She has worked with this student since 2003, providing both . (T. 523, 527, 530) She has extensive credentials in special education and including a doctorate in special education with a specialization in , is a certified behavior analyst at the doctoral level and consultant to various districts, including the DOE, with regard to effective programming. (T. 509-516)

Accordingly, I conclude that the IEP was substantively defective and that the DOE has not established that it provided a FAPE.

D.

The parents have also made a number of claims in their hearing request regarding other alleged defects. Although not necessary in view of the foregoing, I find as follows:

Failure to use new IEP forms or provide prior written notice: The IEP included all required areas of discussion and specification. The parents have not alleged it did not. Any use of improper format is at best a de minimus violation that does not constitute or contribute to a denial of a FAPE in the circumstances of this case. Similarly, any failure to provide prior written notice does support a conclusion that a FAPE has been denied. See e.g. Application of the Board of Education of the Arlington School District, Appeal No. 07-102; Application of Child with a Disability, Appeal No. 07-139.

Parent training and/or counseling: The evidence shows that training was programmatic at the school and that training would vary based upon the student‟s needs and the parents‟ level of expertise. (T. 81, 156, 195) Specifically, among other things, monthly parent workshops are held and the parents were given the opportunity for individual meetings to discuss and obtain guidance with regard to individual issues. (T. 479-481, 484) Failure to specify parent training and/or counseling in these circumstances, does not amount to a denial of a FAPE. Application of the XXX, Appeal No. 11-118

Transportation: The parents have not claimed that the student‟s trip is likely to exceed one hour, have not asserted that the student‟s trip has ever exceeded one hour, and do not address that claim in their closing memorandum. Similarly there is no claim that an air conditioned bus has not been provided. I conclude those claims have been abandoned. In any event in the circumstances here any IEP failures with regard to the specifications at to transportation do not constitute a denial of a FAPE. (See T. 114-119, Ex. 8)

CSE composition: The parent‟s claim that the team failed to include a school psychologist is meritless since it is established that was present. Further, the evidence shows that all present expected that the student would remain at , a non public special education school. Further, a general education teacher is not required when, as here, the evidence does not support the conclusion that there was a reasonable likelihood that the student would have been assigned to such a teacher. See, Application of a Student with a Disability, Appeal No. 11-025; Application of a Student with a Disability, Appeal No. 11008

Failure to receive finalized IEP: The student‟s mother testified that the parents did not receive the finalized IEP. The evidence shows that a corrected version of the IEP, which included ‟s signature and a duplicate entry regarding the provision of a that had been omitted from the draft, was prepared on or about July 1, 2011. (T.106-107) It was acknowledged that the final version did not differ in any material way from the draft the parent acknowledges receiving and from the understanding of the parties at the review.

(T. 755) I note that customary procedures were to submit IEPs and similar material to the school for distribution to the parents. (T. 107) testified as to her belief that the July 1 version was sent directly to the parent. However, she asserted no personal knowledge as to whether and how the document was mailed and I conclude that there was no basis for her conclusion that it was mailed to the parent‟s home. (T.106-107) I credit the parents claim that it was not received. However, in the circumstances here, that does not constitute a denial of a FAPE or interfere with the parents‟ meaningful participation in the CSE process. See, Application of a Student with a Disability, Appeal No. 11-032

Failures to adequately detail “Present Levels of Performance” and/or include required evaluative material: The evidence shows that the student‟s present performance, functional levels and learning characteristics were accurately set forth in the IEP. They were determined using the BASIC assessment as well as teacher observation. (T. 91-92, 253-256, 409-410, Ex. 1) Similarly, academic management needs describe appropriate methodologies and strategies (T. 256-258, 410-412) and social/emotional performance and management needs were adequately stated (254-256, 258-261, 299-300, 413-414) The testimony of the parents‟ witnesses was not, I conclude, significantly inconsistent with the IEP specifications. With regard to the parents‟ allegation that the evaluation was outdated, testified that reliable current information concerning the student‟s functioning levels and areas of had been obtained and that the student could not participate in standardized state assessments. She persuasively concluded that a new psychological review would not lead to results different from 2007 and would result in pointless stress for student. (T. 68-69) The parents‟ disagreement with the team‟s conclusion as to an appropriate program does not constitute a failure to adequately describe the student a I conclude that any lack of current accurate information did not result in a denial of a FAPE.

FBA/BIP claims: It is undisputed that a formal FBA was not prepared and therefore not considered by the DOE. (T. 360) However, the persuasive evidence shows that the student‟s behaviors were charted in various ways (T. 259-260, Ex. 6) Further, the school utilized FAST, an assessment tool that, as agreed, provides useful information, to assess the student. (T. 286-288, 360, 372, 390-391, 605) In conjunction with teacher observations and charting, FAST enabled the school to develop a behavior plan (“BIP”) that incorporated various strategies for addressing the student‟s behaviors.

(T. 381, Ex. 5) In developing its own , the school consulted who provided feedback and its included some of her suggestions. (T. 388, 577-579, 701-702) There has been no testimony that the was inadequate. The IEP‟s was prepared by school staff, including a familiar with his behaviors and the review team included the staff who drafted it. (T. 329, 331-332)Exs.1-2, 5) Further, testified that the were the principal subject of discussion at the review and her testimony was undisputed. described the as a general framework for what to do and noted that the staff also utilized the more comprehensive plan. (T. 280-282, 321, 326) In the foregoing circumstances, I conclude that that the failure to conduct a formal FBA and/or the contents of the IEP BIP are not a basis for concluding that a FAPE was not provided. See, Application of a Student with a Disability, Appeal No. 11-032

Goals: The parents assert various specific claims concerning the goals which I now address. I find that the goals, which I note were drafted by school staff, addressed the student‟s main deficit areas as well as play skills and use of a communication device.

(T. 93-96, 265-267, 269-274, 421-424, 449-451) Further, credibly testified that the was used throughout the day by all staff, who appropriately instruct the student in its use, but she noted that the was in lack of the that underlay its use. (T. 265-267) The student‟s teachers credibly testified that the goals could be implemented and were measureable. (T. 275-275, 424-425) Credible testimony supports the conclusion that the goals were for a one-year period and not meant to be achieved by August 15, 2011. (T. 275-276, 425-426) Further, I note that the parents presented no testimony to support their claim that related services goals for this student were inadequate. However, as discussed above I have concluded that the student needed at to learn and maintain various necessary skills including many addressed in school and I find that many of the goals could not have been mastered and maintained with the IEP program alone.

Health/Physical Management Needs: The parents asserted that the IEP‟s direction to see the school nurse for all management needs (Ex. 1) failed to provide sufficient indication of his medical needs. (Ex. A) The credible evidence shows that staff is aware that the and that the direction to see the school nurse for is appropriate because the student . (T. 194, 421) Accordingly, I conclude that an appropriate person is designated to provide additional information to other staff should it be needed. (T. 268) Further, the parents have not articulated why that is insufficient. I find no merit in this claim in the circumstances of this case.

Absence of Promotional Criteria: The evidence shows that the student is functioning at extremely levels and “alternate assessment” is designated because he would not be able to meet promotional criteria from one grade to the next even with testing accommodations and modified promotional criteria. (T. 113) In those circumstances, the school and the principal determine promotion. (T. 114) The parents claim of a denial of a FAPE based upon the absence of promotional criteria is meritless in the circumstances of this case.

Communications device: The hearing request asserts the IEP is defective because it incorrectly states that the student used a CHAT PC device when he actually used the system and has made progress using that device. (Ex. A-6) The evidence shows that the CHAT PC was put on the IEP at the specific request of the parents because he was using it in the school at the time of the review and it was effective. Accordingly, this claim has no merit. ^[1]

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is „reasonably calculated to enable the child to receive educational benefits.‟ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982).

Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a , supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

All parties agree that the placement and related services provided both at the school and outside the school are appropriate. The parents‟ assertion that that placement must be supplemented by additional services outside of school is not based upon dissatisfaction with the school or with the related services provided by the DOE but rather their conclusion that the school program must be supplemented for the student to make meaningful educational gains. For the reasons discussed above, I agree that additional services are required and that the failure of the DOE to provide them was a denial of a FAPE.

The persuasive evidence shows that the student benefits from methodology and service and indeed the DOE‟s team also concluded that. (T. 137-138, Ex. 1-3) The after school provides that. DOE witnesses acknowledged that the student‟s need for reinforcement, repetition, continuous assessment and the use of a communication device

(T. 254, 256, 257) and the services provided by the parents provide that. Moreover, the likely helpfulness of the at home with regard to the student‟s rate of progress has been acknowledged by staff. (T. 483-484) I also note that the IEP specifies progress for the period when the student was receiving a home-school program. (Ex.1)

The providers selected by the parents are highly qualified with regard to the delivery of those services. (T 509-516, 527-530) I find meritless the DOE‟s assertions that inconsistencies in the manner in which the home program is run or the data collected may negate claims of progress as a consequence of that program. I find ‟s testimony persuasive and conclude that the evidence shows that the program was run conscientiously and appropriately and that there is a compelling basis for concluding both that the data upon which she relied is substantially accurate and that the additional hours provided educational benefit. (T. 528-530) The evidence show that she reviewed routinely how the programs were being run by the other home providers and acted promptly to correct any problems she observed. (T. 642-643) Further, she communicates with the school and observes the school‟s program in order to provide appropriate consistency as well as provides information and how to handle them that enable substantial improvement in the student‟s ability to benefit from related services provided by the DOE.

I find that the request for 16 hours is not excessive. The student has been receiving that number and benefiting. Moreover, the evidence, detailed herein above, is persuasive that his when the 2011-2012 school year was commencing. The DOE has not proposed and the evidence does not show a basis for reduction to some unspecified lesser number. Parents are not held as strictly as the district with regard to LRE requirements. Moreover, in this case the persuasive evidence shows that intense and that appropriate and necessary living skills are also being provided.

The parents also seek a monthly team meeting and two hours monthly of parent training. I conclude that routine team meetings are essential in view of the complexity of the student‟s varied deficits and the number of providers delivering the service. Further, the mother persuasively testified as to the student‟s changing needs and the benefit of training and I note that areas of need for this student, including which is not addressed in the school. (T. 746 )

Based upon the foregoing, I conclude that the parents have established that the unilateral program they have provided is reasonably calculated to enable the student to make meaningful educational gains.

The evidence shows that the providers were being paid at the rate of $ per hour. (Ex. B) The parents have not requested and there has been no testimony supporting another amount. (Ex. II) ^[2]

Prong 3

There is no claim or evidence that the parents did not cooperate with the CSE in the development of the IEP or engaged in conduct that precluded the DOE from developing an appropriate program and offering an appropriate placement or did not provide appropriate and required notices to the DOE. The DOE‟s sole claim with regard to the equities is that the parents should have refused if they were not satisfied with the entire program provided by the DOE. However, the parents claim is solely that the student requires additional beyond the normal school day. There is no basis in that for a conclusion that payment for those services should be barred or reduced.

ORDER

I hereby order that for the 2011-2012 school year the student entitled to receive at DOE expense the following:

1. Up to 16 hours per week of services;

2. Up to one one-hour team meeting per month with regard to the student‟s home-based program;

3. Up to two one-hour sessions per month of parent training and counseling. The DOE shall directly fund the above listed services and shall immediately issue authorizations providing that. Dated: January 27, 2012 Corrected: February 15, 2012

__________________________

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTS ENTERED INTO THE RECORD

1 IEP alleged to be correct by the DOE, 6/13/11, 20 pgs. Department of Education

2 IEP Minutes, 6/13/11, 2 pgs. Department of Education

3 Annual Progress Report, , 4/26/11, 4 pgs. Department of Education

4 Goals Progress Report, , 4/1/2011, 6 pgs. Department of Education

5 , & Dr. , 3/28/11, 4 pgs. Department of Education

6 , undated, 4 pgs. Department of Education

7 Related Service Progress Report (Numerous Department of Education

Providers), 5/27/11 & 6/6/11, 7 pgs.

8 / Form, 6/13/11, 2 pgs. Department of Education

9 Evaluation, Dr. , 5/26/07, 12 pgs. Department of Education

10 Due Process Response, 7/11/11, 4 pgs. Department of Education

A Demand for Due Process and Stay Put Pendency, Parents

7/1/11, 7 pgs.

B Findings of Fact and Decision, , Esq, 2/8/10, 20 pgs. Parents

C Order on Pendency, , Esq., 3 pgs. Parents

D NYC DOE IEP, 7/28/11, 18 pgs. Parents

E Provider‟s Affidavit of Service, 7/28/11, 1 pg. Parents

F Email Correspondence, , , 7/25/11, 1 pg. Parents

G Progress Report with Goals, H. Parents

, , 5/27/11, 6 pgs.

H Rept. With Goals, , 6/6/11, 3 pgs. Parents

I Related Service Educational Progress Rpt., . , 6/8/11, Parents

4 pgs.

J Letter from Parents to with fax confirm, 6/20/11, 2 Parents pgs.

K Summer Rpt., , 8/8/11, 3 pgs. Parents

L Progress Report, FDN., 6/15/11, 2 pgs. Parents

M Progress Rpt. , Fdn., 8/10/1, 1 pg. Parents

N Update, , Zone, 9/15/11, 1 pg. Parents

I Affidavit of Dr. , 7/28/2011 and transmittal e-mail Impartial Hearing Officer

7/29/2011, 2 pgs.

II Pendency Order re Case No. 133745, 8/15/11, 6 pgs. Impartial Hearing Officer

III Parents Closing Memorandum Impartial Hearing Officer

IV DOE Closing Memorandum Impartial Hearing Officer

V Decisions re extensions of compliance date, 5 pgs. Impartial Hearing Officer

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Footnotes

[2] Two (2) 60 minute sessions of ( ) pursuant to an RSA;

[1] In their post-hearing memorandum, the parents assert that the has not been provided as required. Further, they claim inadequate staff training with regard to the use of the . Those claims were not asserted in the hearing request and accordingly will not be considered.

[2] The parents sought payment for during the pendency period at a rate of $ per hour but that was denied in view of Impartial Hearing Officer ‟s specification of $ per hour. (Exs. B-8, I, II-3) The parents were informed that the denial did not preclude them from asserting a claim for the higher rate during the evidentiary phase of the hearing. (Ex. II-3) However, no claim was subsequently made, the parents‟ complaint does not include that request and their closing memorandum does not address it.. (Exs. A, II)