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: February 16, 2012

February 29, 2012

April 17, 2012

April 18, 2012

May 22, 2012

May 30, 2012

May 31, 2012

June 4, 2012

June 26, 2012

Actual Record Closed Date: July 25, 2012

Hearing Officer: Leah Botwinik Almeleh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 16, 2012

Esq. — Parents

Esq. — Parents

Parents

DOE

Esq. — DOE

Psychologist, (via telephone) — DOE

Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS IN ATTENDANCE ON FEBRUARY 29, 2012

Esq. — Parents

Esq. — Parents

Esq. — DOE

NAMES AND TITLES OF PERSONS IN ATTENDANCE ON APRIL 17, 2012

Esq. — Parents

Esq. — Parents

Parents

Esq. — DOE

Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS IN ATTENDANCE ON APRIL 18, 2012

Esq. — Parents

Esq. — Parents

Esq. — DOE

Psychologist, (via telephone) — DOE

NAMES AND TITLES OF PERSONS IN ATTENDANCE ON MAY 22, 2012

Esq. — Parents

Esq. — Parents

Parents

Esq. — DOE

NAMES AND TITLES OF PERSONS IN ATTENDANCE ON MAY 30, 2012

Esq. — Parents

Esq. — Parents

M.D., (via telephone) — Parents

Teacher (via telephone) — Parents

Esq. — DOE

Teacher (via telephone) — DOE

Assistant Principal (via telephone) — DOE

NAMES AND TITLES OF PERSONS IN ATTENDANCE ON MAY 31, 2012

Esq. — Parents

Esq. — Parents

Program Director — Parents

Teacher (via telephone) — Parents

Esq. — DOE

NAMES AND TITLES OF PERSONS IN ATTENDANCE ON JUNE 4, 2012

Esq. — Parents

Esq. — Parents

Parents

Teacher (via telephone) — Parents

Speech Therapist (via telephone) — Parents

OT (via telephone) — Parents

Esq. — DOE

NAMES AND TITLES OF PERSONS IN ATTENDANCE ON JUNE 26, 2012

Esq. — Parents

Esq. — Parents

Parents

Esq. — DOE

PROCEDURAL CONTEXT

On July 8, 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). On August 19, 2011, a Notice of Appearance was entered on behalf of the Department of Education. It is noted that several requests for adjournment were granted on behalf of both parties, due to a mutual understanding that the within matter would be settled. When this did not occur, hearing on the merits was initiated on February 16, 2012 and continued to February 29, 2012. Tr. at 6.

On April 17, 2012, the third day of hearing and well into the conclusion of the Department’s case in chief, the Parent moved to amend their pleadings to include allegations regarding the Committee on Special Education’s (CSE) development of improper goals. This Motion was submitted as a result of several sustained objections relating to the preclusion of testimony regarding matters not previously pleaded within the Parent’s Due Process request. In an oral decision, the Motion was dismissed based upon a plain reading of the Individuals with Disabilities Education Improvement Act (IDEIA) which, in relevant part, provides that, “The party requesting the due process hearing may not raise issues at the hearing that were not raised in the party’s due process complaint notice unless such original complaint notice is duly amended prior to the hearing.” 20 USC § 1415 [f][3]B]; see also 8 NYCRR §200.5 [j][1][ii]. This position has consistently been maintained through a long line of SRO administrative decisions as well as federal case law. In the spirit of due process and fundamental fairness, these regulations ensure that both parties have an understanding of the disputed issues. They facilitate a more meaningful due process hearing while preventing unnecessary loss of time, money and other resources defending uncontested issues. In this manner, the issues at hearing are appropriately and clearly identified and, as a collateral benefit, compliance with the five day disclosure rule is facilitated. 34 C.F.R. § 300.509[a][3]; 8 NYCRR 200.5[i][3][xii][a]. Although the Parent essentially argued that 20 USC§1415(B)(7)(A)(ii)(III)-(IV) imposes minimal pleading requirements upon the moving party, the undersigned determined that the lateness of this request, coupled with the prejudice to the Department and the need to recall witnesses militated against any right to amend. See also Schaffer v. Weast, 546 US 49, 54 (2005); Application of the Board of Education, App. No. 08-070. Tr. at 407-428. Thereafter, the matter was continued on April 18, 2012, May 22, 2012; May 30, 2012; May 31, 2012; June 4, 2012 and June 26, 2012. On the final day of hearing, the parties were offered an opportunity to submit closing Memorandum and as a result, the timeline duly extended.

Specifically, the Parent asserts that the Department of Education’s (hereinafter the “Department”) educational placement, as memorialized by the Individualized Education Program (IEP) May 2, 2011 stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for their child. Exhs. A, 2. Relying 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], she is seeking tuition reimbursement vices for the 2011-2012 school year in furtherance of a unilateral transfer to the ”), a non-public school setting. E.C. is “a child with a disability” as that term is defined under the IDEIA, 20 U.S.C. § 1400 et seq., and is classified with “multiple disabilities” as that term is defined by 20 U.S.C. § 1401(a)(1). There is no dispute regarding classification. 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. Ms. was previously a New York City Fellow and is presently a classroom teacher at where she has been assigned to both classes. The witness noted that is additionally referred to as . The school services children whose classifications largely reflect disorders (hereinafter “ ). Although there were approximately 40 students from in attendance during the summer of 2011, she could not estimate how many students were present in a District program sharing the same building that summer. . has never appeared on her class list and, prior to the within legal proceedings, she had not heard this child’s name. The witness then proceeded to describe the physical plant at

During the 2011 summer, two classes were sited at . In addition, two classrooms for children were located on a separate floor. Tr. at 462-464. Although the witness initially testified that there were children sharing the site during the 2011 summer, she later stated that these children were sited in a totally different building. Tr. at 606; 609. Nevertheless, there were several classrooms, administrative offices and related service offices on her floor which were utilized by students and personnel. Tr. at 78-81. While children from dined separately during the 2011 summer, during the 2011-2012 school year, from and children from dined together and shared outdoor recess periods. Tr. at 99, 468-469, 485. Nevertheless, Ms. testified that this protocol had recently been terminated; she did not know why the two populations were now segregated in their classrooms during recess. Tr. at 619.

Although the witness could not identify ’s specific class for the 2011-2012 school year, she noted that all classes are located on the fourth floor of the building along with classes for children classified as emotionally disturbed. Tr. at 604-606. During the 2011-2012 school year, both children and “standardized students,”1 shared the fourth floor, the floor on which a padded time-out room is located and utilized daily. Tr. at 473, 492-493, 603-604. Beyond this, all fourth floor students utilized the same bathrooms. Tr. at 612. The building is not elevated. However, the students did not share a stairwell as the witness testified that classes for children were isolated in a different part of the building, albeit the same floor. Personnel supervise the swinging doors separating their wing from the rest of the school. Although cameras are posted within the stairwells, she was unaware of any specific monitoring protocol but did observe that the school has several school safety employees who patrol the school grounds. Tr. at 637. While clearly, not all children classified with an emotional disturbance are , Ms. testified that levels of ” risen to the level of requiring rooms and on several occasions. Tr. at 487-489.

Ms. testified that although classrooms were air-conditioned, halls and stairs were not. Although, the witness recalled that was serviced by a full-time during the summer of 2011, she did not remember the hours of other related service providers, as these individuals had been contracted out through private agencies. Tr. 473. Ms. noted that a third floor library was accessed exclusively students.

cognitively typical children whose disability is primarily emotional in nature

In July 2011, Ms. was employed at , teaching a middle school class of five autistic children, aged twelve to fourteen, whose academic levels fell between prekindergarten to second grade. Tr. at 37-39. She based these grade levels upon scores yielded on the Brigance, an assessment which had been administered to all of her incoming students. She noted that none of her students required plans nor did any utilize a sensory diet. Tr. at 480. During the summer of 2011, Ms. testified that she did not experience significant , remarking that whatever were present could easily be redirected. Tr. at 477-480.

The witness described a relatively calm classroom in which she utilized an individualized multi-sensory approach with her students, including visuals, manipulatives, headphones, puzzles and a smartboard. Tr. at 45. Within this context, Ms. provided a brief overview of her daily class schedule, which included readiness time, academics, meals and yoga. Instruction was generally offered in the “workshop format,” a paradigm in which group instruction was followed by modeling and small group activity. During this time, material was differentiated to meet the student’s needs although small groups might be determined by either academic levels or personality. Tr. at 50-51. Although the children were generally self-contained, students moved to an adaptive gym and art studio. The witness testified that she utilized the TEACCH methodology within her classroom, a system which was highly structured. In this manner, she believed the children were constantly aware of expectations and felt comfortable with a predictable routine. Beyond this, a class-wide behavior plan had been implemented.

During the summer of 2011, there were two classes at . Reviewing the May 2, 2011 IEP, Ms. testified that would have blended in well with her students during the 2011 summer, as his academic goals and social-emotional needs were consistent with the pupils in her class. Tr. at 56-59. While her students all received related services, she observed that in prior years, many of these related services had been fulfilled through related service authorizations. Finally, Ms. testified that she did not participate in the IEP meeting of May 2, 2011 for . and had never met the child. She did not know , nor had she spoken to the Region’s placement officers.

additionally testified as lead witness on behalf of the Department. Ms. is a school psychologist with the Department and has been assigned to CSE 9 since October

2008. In this capacity, the witness is responsible for assessing and observing students, along with assisting with the formulation of their IEPs. Nevertheless, the witness testified that she had actually tested very few students. Tr. at 143.

Ms. participated in the development of .’s IEP and conducted an observation of the student in December 2010. Exhs. 2,7. As the prior Annual Review had been conducted in March 2010, the CSE convene for the 2011-2012 school year had initially been scheduled for February 2011. Nevertheless, Ms. believed a assessment would be valuable in determining .’s needs. Although conducted on January 18, 2011, it appears that there was a significant delay in the receipt of Dr. ’ report, a document which does not indicate when it was prepared. As a result of this delay, Ms. indicated that certain aspects of the report, such as the occurrence of self-injurious behavior, were no longer relevant at the May 2011 meeting. Nevertheless, the report did reference .’s struggles with toileting and his use of diapers, issues Ms. “did not recall” being addressed by the CSE. Tr. at 175-177.

Although the child demonstrated behaviors “consistent with the nature of his severe disability,” , the child’s instructor had opined that these behaviors were easily addressed informally. Based upon s opinion that the , the child’s was discontinued in the absence of any further assessment. Tr. at 519, 522.2 Finally, Ms. agreed that many of Dr. ’ recommended goals had not been adopted by the CSE. Tr. at 526-529.

Ultimately, the Annual Review was not held until May 2, 2011. Beyond the submission of Ms. ’s observation, the CSE availed itself of a evaluation from , a prior IEP from March 12, 2010 and ’s 2010 Interdisciplinary Progress Report which had been emailed to the CSE members prior to the convene. Tr. at 113-114; Exhs. 6, 2,1, 8. The witness testified that she participated in this CSE along with , her “partner” who served as the District representative on this date. Both she and e prepared Minutes of the CSE meeting. The Minutes were shared with the Parent although, as a rule, Ms. testified that A had previously been in effect during the 2010-2011 school year. Exh. 1. she only shares them upon specific Parental Parent request. Tr. at 138-139. Although Ms. initially testified that she had a specific recall of events and circumstances involving the student’s IEP, she subsequently recanted this testimony, indicating that she remembered the events “in a general way, not the specifics,” because of the protocol she follows. Tr. at 119-120.

Nevertheless, the witness described her custom and practice vis-à-vis the conduct of CSE meetings. She noted that the CSE members worked from a draft which was read aloud and discussed. Based upon the evaluation, the CSE concluded that . was and functioned academically at a second-grade level for reading and math. The psychologist’s report further indicated that measures of ’s . Nevertheless, cognitive testing was limited to non-verbal assessments due to ’s agitated state and his inability to tolerate further testing procedures on January 18, 2011. Tr. at 122-123. It is unclear whether any further efforts were made to test the child and Ms. noted that splinter skills demonstrated in the area of problem solving did not necessarily translate functionally to the classroom. Nevertheless, the report indicates that, “Due to the intrusion of , s overall potential may be slightly better than currently demonstrated,” an opinion with which Ms. agreed.

In furtherance thereof, the witness could not explain the child’s high performance score on the Woodcock-Johnson problem-solving sub-test (instructional grade level a test result largely at odds with the rest of the student’s testing profile. Exh. 6. Similarly, the report’s description of ” in terms of his ability to apply academic skills did not appear to translate functionally within the classroom. This was particularly so in view of the child’s “fleeting and inconsistent eye contact.” Exh. 6 at 2. Ultimately, Ms. acknowledged that although the testing reflected an over-all deflated assessment of ’s cognitive abilities, its scores were largely consistent with the views and observations of personnel. Tr. at 253-254. Although testing did not include verbal measures, Ms. opined that the CSE possessed adequate evaluative material to formulate an IEP. Tr. at

382. Finally, having expressed concern over the low cognitive scores, the Parent was advised of her right to request new testing. Tr. at 252, 381.

On cross-examination, Ms. acknowledged that personnel had complained verbally about Dr. ’ evaluations and, in particular, were concerned about the abbreviated “wait” or “processing” times offered to students prior to accepting their response. Tr. at 532-532. Although Ms. had discussed this issue with Dr. , the psychologist indicated that she was compelled to follow standardized testing protocol. As Ms. had never observed Dr. practices, she was unable to describe the manner in which Dr. conducted testing. Suggesting that Dr. scores may have been invalid, Ms. defended the report by indicating that itself had frequently utilized measures of reading ability under nonstandardized conditions. Tr. at 536.

In sum, the witness described . as a very impaired student who required a great deal of support. In particular, Ms. noted that the child exhibited high levels of . In furtherance thereof, her observation in 2010 reflected an off-task child who required . While the student had been assigned to at , at the time of her observation in 2010, Ms. observed that there were five adults in the classroom.

Referencing the child’s IEP, Ms. testified that each goal had been discussed individually by the entire Committee. In some cases, the child’s goals were adapted directly from ’s Interdisciplinary Report. Other goals were developed directly with ’s personnel and the Parent. In yet other circumstances, goals were modified to reflect the Department’s “more measurable” and “stricter criteria.” Tr. at 129, 265-270. There are no goals for maintaining eye contact, although this is one of ’s clear deficits. Tr. at 232; Exh. 6 at 2. Similarly, Ms. testified that, notwithstanding episodes of pinching or kicking behavior, the did not rise to the level of requiring either a Assessment (hereinafter “FBA”) or (hereinafter “ ”). Tr. at 231, 237-238, 373. There were no social studies goals, activities of daily living goals, “health and hygiene goals” or goals related to the use of Touchpoint protocol, assistive technology utilized by Tr. at 292.

The witness explained that while an IEP must be predicated upon an assessment of the child’s strengths and weaknesses, it is not designed to reflect every single facet of a student’s educational profile. Rather, those deficits which impact most upon the educational process must be incorporated into the IEP. Thus, the document must be skillbased, rather than subject-oriented. Goals for “social studies,” “impulse control” or “eye contact” may be inferred through the text of the IEP. Tr. at 371-375. Thus, while goals related to “impulse control” were not specifically designated within the IEP, the child’s had, nevertheless, been specifically addressed within the IEP. Exh. 2 at 12.

The child’s need for related services was additionally addressed and a was assigned for transitional purposes as would be articulating into a new school environment. Tr. at 126. Notwithstanding this, the witness could not explain why the FNR referenced assignment of a crisis paraprofessional rather than a transition paraprofessional. Exh. C. The CSE further noted that exhibited fine motor and sensory processing deficits. As .’s ability to regulate sensory input was impaired, his ability to attend to instruction was consequently compromised. Tr. at 130. To minimize the impact of these deficits, Ms. testified that various academic management needs were drafted into the IEP document. She then opined that a was unnecessary as long as sensory supports were in his classroom. Tr. at 383.

Ultimately, a twelve month paradigm was recommended for the student, along with related services and assignment of a paraprofessional. Based upon the contributions of Rebecca’s personnel, the psycho-educational evaluation of Dr. Davis, the Parent and Ms. ’s own observation, the witness testified that the IEP appropriately met E.C.’s needs. Tr. at 133-134; Exh. 5. In particular, the witness believed that .’s high levels of distractibility compelled an academic placement which would support his need for focus and on-task performance, to wit - a smaller classroom with fewer people and competing demands. In furtherance thereof, the witness prepared a District referral form for the student along with consent for placement. Exhs. 9,10.

In sum, Ms. testified that there was no discussion during the CSE proceedings regarding any particular placement, public or private, as this is not her responsibility. Moreover, she could not discuss a placement such as as the Department did not offer an placement. She further opined that references to the child’s current placement did not include discussions of a school obtained via unilateral placement. Tr. at 317. Nevertheless, Ms. noted that the placement recommended by the Department would reflect a transition to a less restrictive environment and, for this reason in part, a dedicated paraprofessional was assigned to the child. Tr. at 307-308. Although the Parent subsequently expressed an interesting in identifying a state-approved private school, the CSE had already made its placement recommendation and Ms. testified she could not address this.

Thereafter, the matter was referred to , the placement officer for .’s region. As Ms is not involved with the placement process, she could not testify about class profiles, sites, the FNR or any related correspondence from the Parent. Tr. at 347-354.

additionally testified on behalf of the Department. He has been employed by the Department as an Assistant Principal at The witness testified that, based upon his review of the E.C.’s IEP, the child would have been assigned to Ms. s class during the 2011 summer. Tr. at 647. Notwithstanding this, Mr. testified that he had never seen the child’s IEP or the prospective class profile prior to the within litigation. Exh. P. Although there were seven children denominated on the class profile list, he did not know if a variance had been requested and was unfamiliar with many of the codes identified on the document. Tr. at 657.

THE PARENT’S CASE

Brilliant, Psy.D. testified as lead witness on behalf of the Parent. Dr. is presently the Director of the and holds a dual doctorate in school and clinical psychology. Dr. evaluated . in March 2012 over the course of three days. In furtherance thereof, Dr. conducted extensive formalized testing on the child, including parent interviews and review of .’s educational records. Tr. at 677-686.

The witness additionally commented upon the report completed by Dr. At the outset, Dr. noted that the child’s visual-spatial scores had been inadvertently reported as “borderline” although, in fact, the score fell within the low average range. Tr. at 686. More substantively, however, Dr. testified that Dr. ’ testing3 yielded Stanford-Binet sub-test scores which diverged by more than two standard deviations. When sub-test scatter is this discrepant, the Stanford-Binet manual countermands the issuance of a standard score, based upon the belief that testing has not accurately reflected the child’s capabilities. The witness testified that it was improper to offer a diagnosis of as many of the reported sub-tests

Stanford-Binet Intelligence Scales, 5th Edition. were, in fact, language based, notwithstanding ’s delays. As such, the witness opined that when sub-tests were exclusively by their very nature (i.e. measures of working memory and visual-spatial), . yielded scores which were consistent with considerably . In sum, Dr. testified that Dr. ’ report reflected “huge mistakes” which rendered it invalid. Tr. at 693.

Beyond this, the witness testified that the Stanford-Binet is inappropriate for use with children who are on the because its directions are laden with language demands. Thus, where a child does not have the foundation language to participate fully in testing, it is not a measure she could recommend. Rather, Dr. opined that there were other nonverbal measures which were far more appropriate for a child such as . Beyond this, Dr. opined that Dr. ’ testing was further compromised by the psychologist’s failure to include incremental breaks into the testing process. In this manner, scores would reflect the child’s best efforts, rather than measure cognitive levels obtained during periods of agitation and stress. Tr. at 695. In fact, Dr. herself expressed reservations regarding the accuracy of her testing, suggesting that scores were little more than a minimum estimate of the child’s capability, an opinion based upon the levels of and evidenced by . during the testing. Tr. at 689-693.

Dr. further testified that, considering the child’s complex medical history and his years receiving special education services, Dr. ’ report was “shocking” in terms of its abbreviated history, neglecting to address the extensive interventions he has received through the years. Dr. noted that any meaningful understanding of .’s ability to focus upon instruction required an insight into the and their . At the very least, and the , none of which were addressed in Dr. report. Rather, Dr. described several aspects of the report as meaningless “jargon,” citing internal consistencies between the clinician’s description of .’s highly and her conclusion that he “worked at an adequate pace.” Tr. at 697; Exh. 6 at 2.

Dr. similarly dismissed Dr. ’ conclusions regarding measures of basic achievement. The witness testified, “. . . I’ve never seen, never in my life have I seen a without an appendix. I think it’s because it makes it difficult for other people, especially other evaluators to be able to tell exactly what test you’re talking about. In this case, it looks as though she is talking about some sort of overall skill. But it doesn’t really say, which makes it difficult. So I really don’t know what she is talking about in terms of the ability to apply those academic skills.” Tr. at 700; Exh. 6 at 4. Although the witness was able to make some assumptions about testing, she opined that the reasoning score was not credible as this sub-test relies upon verbal skills for its completion. and Dr. ’ inability to conduct verbal testing, Dr. opined that ’s math reasoning scores were “extraordinarily unlikely.” This was particularly so, she added, because such scoring was wholly inconsistent with measures on the Vineland.

Similarly, the witness noted that although written language skills were tested, a spelling score appears present while a writing score was omitted. Although Dr. opined that Dr. ’ writing goals were appropriate, one would be unable to measure progress or design appropriate goals when current levels of performance are omitted. Tr. at 708. In view of the above, the witness expressed significant concerns about the validity of Dr. testing, noting that an IEP based upon these present levels of performance would, by necessity, reflect inaccurate instructional levels and goals. Tr. at 704.

Finally, Dr. noted that Dr. ’ testing did not address ’s executive functioning, although a sub-test of working memory was a “borderline” measure. Beyond this, assessments of the student’s ability to manipulate and organize data through higher cognitive processes were omitted as were measures of ability to attend to relevant details rather than perseverate on distractions. In furtherance thereof, Dr. opined that this information was integral to the development of specific instructional strategies.

Finally, Dr. opined that the lack of an was significant. Given the persistence of , she did not believe Ms. ’s reported ability to easily re-direct the child negated its import. Tr. at 720. Notwithstanding this, based upon the information provided by Dr. , the witness believed the District recommendation for a classroom was appropriate, assuming a student profile consistent with that of is the Program Director of the . In this capacity, Ms. is familiar with Ms. described as a school for children with in relating and communicating, including children diagnosed on the autistic spectrum. She noted that the underlying philosophy is predicated upon the empirical research of Drs. , reflecting the concept of Developmental Individual Difference Relationship (hereinafter “DIR”) and specifically addressing these needs. Personnel receive on-going training in this protocol and additional parent training is available on demand.

In furtherance of this, six basic developmental levels are indentified. The students’ needs are then assessed in terms of their learning styles and reinforcement is directed towards intrinsic motivation at the identified DIR developmental level. Ms. described a paradigm in which children are given a great deal of individualized attention, including Floor Time and small group intervention. Two sensory gyms are available along with on-site related services. Students are grouped by developmental level, DIR Stage and age. Inter-disciplinary team meetings are held weekly although less formal meetings occur as needed. Progress reports are sent out twice yearly. Tr. at 810. Finally, the witness described standardized literary and math curriculum which can be adapted to meet the needs of s atypical students. In addition, various standardized programs are utilized at including Linda Mood Bell, Talkies, Seeing Stars, Visualizing and Verbalizing, Reading from A to Z and Reader Theater. Tr. at 813.

There are 9 students in ’s class, one head teacher and four teacher assistants. All of its students are male, age 11- 14 years of age and all present with neuro-developmental delays in relating and communicating. Tr. at 802. Although the School does not accept mainstream students, it participates in a number of cooperative programs with typical high schools. Tr. at 808.

She described . as a . He requires a and participates in She opined that a paradigm would be inappropriate as it did not provide enough adult supervision. Although class size at is greater, there are far more adults within the classroom and the students benefit from frequent instruction within dyad format. Similarly, Ms. opined that, because of .’s rigidity, the assignment of a paraprofessional would be counterproductive as the child would become overly dependant upon this assistance and would not generalize his skills to other personnel. Tr. at 818. She further opined that, due to the child’s sensory issues, . would be unable to function in a class whose rules mandated that children remain seated. Tr. at 825.

During the 2010-2011 school year, Ms. indicated that she had personally spoken with Ms. and discussed her dissatisfaction with the services of Dr. Ms. noted that the psychologist was very disorganized and performed her testing in an unprofessional manner. On some occasions, testing materials were forgotten, personnel had no notice of potential testees, parts of the test were omitted, and questions were skipped. Rather than pursue testing, Dr. had simply asked the accompanying adult if the child could perform the function requested. On some occasions, the psychologist had raised her voice at the children, creating a stressful and unproductive environment.

Concerned about the accuracy of Dr. ’ evaluations, Ms. indicated that ’s psychologist had prepared written “rebuttal assessments,” mailing them to Ms. as well as , the District’s Chairperson. Although Ms. was aware of the situation, the CSE representative indicated it was not her responsibility to intervene in this matter. Tr. at 820-821, 862-863.

additionally testified on behalf of the Department of Education. She is presently assigned to an integrated co-teaching class (hereinafter “ICT”), but was .’s head teacher from 2008 until August 2011. Tr. at 869. Ms. also participated in the creation of the child’s 2011-2012 IEP. In furtherance thereof, Ms. testified that she could not recall discussing the need for a ; however she opined that both an and were clearly indicated for . were he to transition to a District school. Specifically, she described a child whose sensory disregulation could become severe if triggered by the removal of a preferred toy. On these occasions, the child would and “ ,” disrupting instruction. Tr. at 869-872. Beyond this, . required frequent sensory breaks which were offered in a structured manner.

She noted that was who responded well to the DIR protocol. Although he was capable of , much of his language was scripted or non-functional. The witness estimated that possessed , but could shine . During the 2010-2011 school year . developed . Through DIR, the witness believed . had become more available for learning and aware of his environment. In this manner, the child had developed significantly longer periods of on-task behavior which was reflected by more functional and appropriate speech. Tr. at 877-881. She opined, in contrast, that the use of independent work stations, favored by TEACCH methodology, would be counter-productive for who enjoys social interactions and working with others. Tr. at 882. Referencing the IEP, the witness noted that descriptions of the child’s instructional levels, with the exception of writing and word recognition,^[4] were largely consistent with her observations during the 2010-2011 school year. Tr. at 900-903, 921-924.

Finally, Ms. opined that the paradigm would be inappropriate for . as, at best, instruction would be provided in a small group of three, a setting too distractible for the child. Based upon her knowledge of the paradigm, she further noted that would most likely be placed with non-verbal children, an inappropriate profile for . given his verbal abilities. She did not believe a paraprofessional would resolve these issues as paraprofessionals do not possess educational credentials and generally confine their intervention with the child ; they do not implement curriculum. Tr. at 883-887. Ms. testified that the use of a cafeteria, even one in which “only” forty students were present would be inappropriate he demonstrated. As a student with , she opined that would be unable to . Ultimately, Ms. indicated that she did not agree with the Department’s placement, and specifically indicated this during the May 2011 IEP convene. Tr. at 896. She opined that would easily become a target because, despite his age, the student still , , a situation compounded by his small size. Tr. at 897.

Prior to was employed by the Department as a special educator. He is now employed by and has been .’s teacher as of January 2011. The witness testified that he receives ongoing training in the DIR methodology and is additionally supervised weekly. Regarding the physical plant, the witness noted that the School is elevated and toileting can be facilitated in individual bathrooms. . is additionally offered scheduled and nonscheduled . The child is always accompanied by an adult during these breaks.

As .’s teacher, the witness testified that ’s participates in hour long reading classes and demonstrates reading fluency skills which fall at level. In contrast, his comprehension skills are significantly lower although he noted that has demonstrated improvement through the year in terms of “wh” questions and the ability to sequence events. Tr. at 937-939.

In math, . has been working on concepts related to time, space and money, skills which are additionally practiced within the community. Beyond this, the student has been developing many and the preparation of quick micro-waved lunches. In science, the student has evidence improvements in his ability to sequence experiments and follow directions. In Floor-Time activities, . was making stronger social connections with his teacher and demonstrating a greater interest in engaging in more appropriate social interactions. Ultimately, Mr. testified that he had based his assessments of ’s improvement upon anecdotal observations rather than statistical data. Tr. at 966.

Although the student has demonstrated improvement in his ability to remain on task, . nevertheless continues to demonstrate inappropriate social behaviors which are self-isolating and inappropriate. Among these are the child’s propensities to initiate , and chase after . Although the student’s level of , this behavior has not entirely subsided. is frequently unable to or and, although the student has demonstrated improvement, he could not quantify its extent.

As a result of these behaviors, the witness opined that the use of common bathrooms, shared recess or cafeteria areas would be inappropriate for especially if he were sharing these areas with emotionally disturbed children or those with poor impulse control. Tr. at 953-956. Unlike the students he had taught while employed by the Department, Mr. noted that demonstrated by his students at were generally driven by their lack of communication skills. The witness noted that his students rarely aggressed toward each other, distinguishing these acts from the of the students he had previously taught. Tr. at 989-990. He testified, “. . . I could only speak to again my experience in three years [as a special educator for the Department of Education]. And there was each other on every single one of my days working for three years with kids.” Tr. at 994.

has been at since September 2011. Ms. participates in formal training on a weekly basis. Team meetings for each child are also held on a weekly basis along with additional, ad-hoc consults, depending upon .’s needs. She provides services to the child on an individualized, dyad and group basis. In furtherance thereof, the witness listed several areas in which she has developed goals for ., reflecting pragmatic, receptive, expressive and oral-motor skills. She described a child who struggled with both concrete and abstract language, multi-step directions, topic maintenance and syntax. Beyond language and articulation goals, her intervention additionally included oral-motor exercises designed to increase breath support and the ability to tolerate different oralmotor sensations in an effort to encourage bilateral chewing.

Ms. noted that . had made significant improvement responding to concrete and abstract questions although he continued to require some verbal prompting. Tr. at 1000. She additionally observed that the student had made improvements within the context of a conversational dyad, remaining on topic, responding appropriately and taking turns. As a push-in service during science, Ms. observed that . had demonstrated “amazing” progress with his receptive ability to understand, retain and follow multi-step directions. Tr. at 1004-1005. In this respect, both cooking and science class are springboards for the development of language-based skills, such as logical prediction, sequencing, comparisons and understanding positional relativity. Tr. at 1013-1016.

Toni Sheridan is an occupational therapist at and has provided services to . in this capacity. She has known . since February 2009 and testified on behalf of the Parent. She described . as a child who possessed a with related deficits in fine and gross motor abilities, motor planning, visual-spatial perception, sequencing and . Services are provided individually and within a group, frequently within the sensory gym.

Since July 2011, E.C. has demonstrated improvements in sensory regulation and understanding visual-spatial relationships. She opined that his fine motor skills had improved, particularly with respect to his hand-writing. . additionally participated in “pre-astronaut training,” a program which reinforces and develops an understanding of one’s position in space by facilitating the integration of vestibular, proprioceptive, auditory and visual input. Tr. at 1033. This has been particularly helpful in terms of supporting the fluidity of movement and integrating disparate reflexes. In furtherance thereof, the witness noted that, “ . walks with a wide base of support. His legs don’t in a more of a . He uses a very side base of support . . . And he . And his . . . his reflexes aren’t still and he can appear to be She opined that a non-elevated school building would be inappropriate for as the child , has and , inadequate proprioceptive feedback, an and poor integration of neurological reflexes with sensory input. As a result, Ms. opined that negotiating stairs was very unsafe for Tr. at 1035-1037.

The Parent additionally testified. Ms. .’s mother. She provided a brief history of her son’s development and educational experiences. She noted that . began receiving . At age the child experienced a . Although testing was negative, the Parent described .’s symptoms as . As a result, E by approximately one year, . Although his vision remained normal, he was unable to negotiate a hallway without tactile feed-back. Ms. . testified that . no longer responded to his and could . The child’s inability to himself was exacerbated by his and . She described the child’s and noted that he receives .

THE DEPARTMENT OF EDUCATION’S POSITION

The Department maintains that the May 2, 2012 IEP is valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C.R.R. §200.6 §(a)(1). Inherent within this position, the Department asserts that the IDEIA simply requires the School District to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) and is not compelled to maximize or optimize the child's educational benefits. In view of the foregoing, the School District 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 fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child” beyond “mere trivial advancement” (Application of the XXX Central School District, Appeal No. 08-005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]).

The District further maintains that Rebecca is an inappropriate placement for the student. As an ancillary argument, the School District further contends that the Parents’ actions militate against their equitable entitlement to relief.

THE PARENT’S POSITION

The Parent asserts that the Department of Education stands in abrogation of its duty to provide with a free and appropriate public education for the 2011-2012 school year in violation of the IDEIA. See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). As such, counsel maintains that the IEP generated May 2, 2011 reflects a number of substantive and procedural errors which, in aggregate and alone, compel nullification of the document. Specifically, the Parent maintains that the District’s failure to appreciate the extent of .’s compromised the integrity of its educational planning. However, even if the program had been appropriate, the Parent maintains that would be unable to function at the recommended site. In furtherance thereof, counsel maintains that the Department of Education’s IEP broadly neglected the student’s educational needs such that the Parent was compelled to unilaterally place her child in a non-public school placement (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 their argument, the Parent contends that the Rebecca School constituted an appropriate placement for her son during the 2011-2012 school year and, furthermore, that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. School District, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement.

Discussion

It is clear that the legislative intent of 20 US Code Section 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, Mrs. 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 NYCRR 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]).

The instant matter additionally presents 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 IDEA and enroll the child in a private school of their choice. The Supreme Court has established a threepronged 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 May 2, 2011 IEP reasonably calculated to confer an educational benefit upon E.C. during the 2011-2012 school year?

Were the child’s present levels of performance appropriately incorporated into the May

2, 2012 IEP?

Federal regulations require that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

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]). Inappropriateness of Evaluations and their Consideration by the CSE:

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); 34 C.F.R. 305(c)(5).

Given these parameters, it is evident that Dr. testing was more a reflection of than an assessment .’s cognitive levels. Indeed, the failure to include incremental breaks into the testing process virtually ensured little more than a minimal assessment of ’s abilities, an opinion articulated by Dr. herself. Tr. at 689-693.

At the outset, I note that the rationale for the psycho-educational testing is unclear. In fact, Ms. testified that she had independently requested the assessment, one which was apparently contracted out to a non-Department psychologist, for an unspecified but “important” reason. Tr. at 113-114. Although the record is silent regarding the basis for this “important” reason, one can only surmise that the child’s triennial evaluation was overdue; the request for a psychological report appears to have been determined exclusively by Ms. . Significantly, no prior psychological reports were available and, given the issues described in Dr. ’ report, any opportunity for comparison was foreclosed. Moreover, having received the written evaluation, Ms. ’s interest in the accuracy of this report appears to have evaporated. Although the report is internally inconsistent, contains testing and reporting errors, and reports its own reservations regarding accuracy, Ms saw no need to contact Dr. . Tr. at 174.

In January 18, 2011, Dr. evaluated the child. The report is silent as to whom, if anyone accompanied the child and whether . was aware he would be tested. Although the testing was performed in January 2011, its report was not produced until several months later. Indeed, it is likely that the written report was prepared months after the actual testing in preparation for the May 2, 2011 CSE convene.

By May, however, Ms. indicated that certain of the child were no longer valid. In fact, Ms. s conclusion that certain materials or records which may have been reviewed prior to testing and it is unclear what knowledge Dr. had regarding the child’s . This is particularly disturbing as . is classified as “ .” More significantly, it underscores the credibility of the Parent’s claim that the report describes a different child other than the one referenced. Tr. at 1094-1096; Exh. 6. Indeed, while describing the child as “ ,” Ms. dismissed cognitive test scores which indicated a low average ability to apply academic skills. This is particularly concerning as this score was obtained despite “the intrusion of factors.” Exh. 6 at 3. Similarly, Dr. ’ notation that the child worked at an adequate pace but was highly distractible is senseless.

The record indicates that the child at home and is ; . has received special . The from , various , a , , all of which impact upon his ability to function within the school environment. Exh. 8, passim. The child has a and a . .’s additionally suffers , has and is unable to . Ibid. at 1051-1054.

The child was born , weighing slightly . Since birth, he has undergone at least , including both a . Tr. at 1052. Most salient for the present time, this includes multiple . As a result, . experiences unusual and constipation for which ongoing medical intervention is required. During these times, . is over stimulated by harsh which lead to . In concert with his inability to regulate sensory input, . is clearly unavailable for learning at these times.

Significantly, the child requires to and has crossing midline with both . Much of his therapy has addressed . reports indicate that “ . has difficulty with bilateral possibly due to lack of efficient sensory processing.” In furtherance thereof, the child participates in small group sensory integration exercises designed to strengthen his trunk, neck and head in order to develop a stable support for processing visual input. Ibid. The record further indicates that the student’s proprioceptive feedback is compromised by an inability to , , a condition which impacts upon both reading and writing. Exh. 8, passim.

In physical therapy, intervention is directed at improving overall muscle strength and endurance, postural control and alignment, balance, bilateral integration and coordination, motor planning and overall gross motor function. He remains unsafe, without cues, even within the structure of as well as in busy environments that overwhelm his . Ibid. In the absence of any meaningful history, one can only speculate about the appropriateness of Dr. ’ testing protocol and the knowledge base upon which her assessment was based.

Utilizing the Stanford-Binet Intelligence Scales- 5th Edition, timed testing was wholly inappropriate for a highly distractible child with who, at a minimum, would be required to comprehend verbal test instructions and avail himself of he did not have. Had psychologist reviewed ’s medical history or spoken with the Parent prior to testing, she would have been well aware of the child’s poor bilateral motor coordination, difficulty . Exh. 8, passim.

Indeed, rather than test .’s cognitive abilities, Dr. ’ testing was a reflection of .’s repertoire of . This included (1) reporting Stanford-Binet sub-test scores which diverged by more than two standard deviations, (2) offering a diagnosis of where many of the reported sub-tests were, in fact, language based, notwithstanding , (3) inadvertently reporting visual-spatial scores as “borderline” although, in fact, the score fell within the range, (4) relying upon the Stanford-Binet where that child may because its directions are laden with , (4) failing to provide incremental breaks during the testing process so that scores would reflect the child’s best efforts, rather than measure cognitive levels obtained during periods of agitation and stress. Tr. at Tr. at 686-695.

There was no explanation regarding the absence of test appendices or writing scores, although, oddly, spelling was assessed. Similarly, Dr. ’s assessments did little to assess .’s executive function. In this manner, assessments of the student’s ability to manipulate and organize data through higher cognitive processes were omitted as were measures of ’s ability to attend to relevant details rather than perseverate on distractions.

Clearly, when sub-tests were exclusively by their very nature (i.e. measures of working memory and visual-spatial), . yielded scores which were consistent with considerably higher cognitive function, reaching into borderline rather than mentally retarded intellectual levels. In fact, Ms. acknowledged that she had very little experience testing children and simply asked personnel if test results were consistent with their observations. Psychologist ’s conclusion that testing was accurate because its results were consistent with the opinions of personnel is a spurious approach to test validity. It subjugates the importance of formal testing to the subjective views of school personnel. Moreover, it validates even the most inaccurate testing as long as the child’s teacher agrees with its content.

Although a nearly ninth grade math reasoning score was obtained, Ms. ’s testimony affirmed that .’s arithmetic skills are more closely aligned with second grade. Tr. at 903; Exh. 2. Curiously, the IEP does not report any math reasoning score at all. Nevertheless, although . struggled with the verbal portion of the Stanford-Binet, Ms. Fochetta simply attributed the student’s math reasoning score as an “underestimated ability,” a score which did not translate into the classroom. She made no inquiry of Dr. and merely presumed that these scores represented a splinter skill whose functionality did not transfer into the classroom. Exh. 6. This was particularly egregious as these scores were utterly inconsistent with measures on the Vineland. Given the unusual delay in the preparation of Dr. ’ report following actual testing, the fact that certain behavioral issues were inconsistent with E.C.’s profile, the presence of internal test inconsistencies and the absence of any meaningful student history, I am not convinced that Dr. ’ testing actually reflected .’s scores.

Clearly, the report’s description of as “low average” in terms of his ability to apply academic skills was wholly inconsistent with teacher observation, prior IEPs and progress reports obtained from . Tr. at 878-879; 942-945; Exhs. 2,8. Beyond this, the record is silent regarding Dr. s testimony regarding inaccurate reporting of visual-spatial test scores, observing that the child’s visual-spatial scores had been inadvertently reported as “borderline” although, in fact, the score fell within the . Tr. at 686.

Finally, Ms. ’s testimony that measures of .’s executive function were adequately measured through a sub-test of working memory does not refute Dr. ’s description of this testing as a “borderline” measure of .’s executive abilities. The record is silent regarding .’s ability to attend to relevant details rather than perseverate on distractions and to organize data through higher cognitive processes. In furtherance thereof, Dr. opined that this information was integral to the development of specific instructional strategies and militates against the use of a sub-test which, at best, provides marginal information about a student’s cognitive function.

Given (1) the inadequacy of Dr. testing, including her failure to conduct appropriate verbal testing, measures of executive function and writing, (2) the internal inconsistencies between the clinician’s description of .’s and her conclusion that he “worked at an adequate pace,” (3) Dr. ’s uncontroverted testimony regarding improper test administration as well as the improper reporting of scores (4) uncontroverted testimony regarding the presence of test errors and inaccurate diagnoses, (5) the failure to include an adequate medical and educational history, shedding light upon the child’s ability to learn, (6) the failure to include test appendices so that other clinicians would know what tests had been performed, (7) serious questions as to whether Dr. testing reflected the results obtained for another child, I find that the evaluation was invalid, and as such, could not reasonably provide an accurate view of .’s present levels of performance, his instructional levels or meaningful strategies to facilitate .’s access to an education. Tr. at 697, 704; Exh. 6 at 2. Indeed, Dr. testified that she had been “shocked” by the lack of professionalism demonstrated within Dr. report.

Although it is clear that even Dr. did not place a great deal of faith in her assessment, Ms. unquestioningly relied upon her report, blissfully unaware that scores were inaccurately reported or obtained in contravention of the manual’s guidelines, a further violation of 34 C.F.R. 305 (c)(v). Aware of Rebecca’s concerns about Dr. testing and its decision to prepare “rebuttal” psycho-educational evaluations, it is disturbing that this witness would take a “not my job” approach to these issues. Having requested the evaluation because she deemed it “important,” the CSE psychologist saw no need to communicate with a clinician whose test validity was admittedly and significantly compromised by behavioral and attentional factors. Exh. 6. Regrettably, Dr. ’ incomplete psycho-educational assessment was the only psycho-educational assessment and, as such, it did not meaningfully reflect the child’s current levels of performance.

In sum, Dr. ’ selection of test instruments was inconsistent with the abilities and limitations demonstrated by and violative of 8 NYCRR § 200.4 (d)(2) and 34 C.F.R. 305(c)(3). It is difficult to imagine a legitimate basis for utilizing the measures selected by Dr. They point to an absolute and unequivocal lack of credibility regarding Dr. ’ review of the record, including conversations with the Parent, and undermine the validity of her report. In furtherance thereof, I note that Dr. ’s testimony stands uncontroverted. The Department presented no rebuttal witnesses nor did Dr. testify. Again, Dr. s conclusions were unaddressed. In the absence of any Department rebuttal, I find that these scores are invalid. In fact, the Department has a non-delegable duty to assess the child appropriately but once every three years. Under these circumstances, the Department is compelled to “get it right,” for every child, including the most disabled. This is the Department’s burden, one that has not been met.

Failure to conduct an FBA or BIP: 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 FBA, which provides detailed information about a student's problem behaviors, and a BIP, which provides strategies to reduce those behaviors. See N.Y. Comp. Codes R. & Regs. Tit. 8, § 200.22(a)-(b).

It is clear, however, that "[F]ailure to conduct an FBA does 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). See also E.Z.-L. by her Parents R.L. and A.Z. vs. the N.Y.C. Dep’t of Ed., (9 Civ.8998

(SHS) (S.D.N.Y. 2011). In the instant matter, it is clear that is not the only cause of and an IEP which exclusively addresses off-task behavior in this context will fall short. Although the child’s testified, the Department has not met its burden regarding the IEP’s ability to address exclusively through the use of a sensory diet or comparable interventions. Similarly, Dr. testified that, based upon Dr. ’ report, the child continued to manifest behavioral issues which were impacting negatively upon his ability to function within the classroom. Under these circumstances, she opined that it was inappropriate to develop an IEP in the absence of a behavior intervention plan. Tr. at 720.

Programmatic Recommendations: Finally, I find that the site at is inappropriate for the child. Given the child’s , , it is frankly ridiculous to place building in which he would have to in order to access the cafeteria. Tr. at 604. Although classrooms are air-conditioned, hallways and presumably bathrooms are not. This is particularly . The record indicates that as evidenced by the fact that the child receives daily home-based nursing services. The Parent, herself a registered nurse, testified that, “. . . The nurse . The nurse has to in case he . The nurse is there in case he has a . Whenever he gets , . She is there for her

Witnesses familiar with the child uniformly testified that an un-elevated building would be problematic, at the very least, for . In furtherance thereof, Ms. testified that, “ has . He's diagnosed with . Clearly, he's not in a , but he does have a form of . . He needs to be holding on to people in by him, he can get easily . Tr. at 891,740, 747, 776.

Similarly, , the child’s , testified that, “ . So he--on top of his having a wide base of support, being and his reflexes not integrated, his not really being integrated all the time, it would be unsafe for him to travel any extended period of time on the stairs. Tr. at 1036. Indeed, even Dr. testified that, “from a common sense perspective,” negotiating four flights of stairs would be “challenging,” noting “. . . I will say that is jerky. had difficulty carrying a box that contained a very light game from the waiting room to my office, which is ten steps, maybe if you're short twelve steps. Tr. at 740. In view of the above, there is no need to enumerate the safety issues attendant to this placement .

Beyond the and air-conditioning, the record indicates that during the school year, ’s classroom would have been sited on the fourth floor along with three classrooms for , a shared art room, a time-out room used by and shared bathrooms. Tr. at 607, 612-613. Given the demonstrated by ., along with his and the , it is hardly any consolation that the “ ” of the in the proposed school are generally exercised upon each other. Tr. at 622. Indeed, the testimony of both Ms. and Mr. , the child’s teachers, indicated that .’s would inescapably flag his availability for victimization.

I note additionally that there is some question as to whether . was actually assigned to a class. The record indicates that no specific class was designated on the Final Notice of Recommendation, nor did name appear on Ms. ’s class profile or on any attendance sheets. Tr. at 75, 632; Exh. C. Moreover, In September 2011, Ms. was no longer teaching a class. Indeed, Ms. indicated that she had never heard of this child prior to the initiation of due process proceedings although principal testified that would have been assigned to her class during the summer of 2011. Tr. at 647. In contrast, a class profile indicates that would have been ’s teacher although Mr. testified that Ms. was teaching in the elementary school. Tr. at 647; Exh. P.

Given the uncertainty as to .’s classroom assignment, if any, the inadequacy of and the inappropriateness of the physical site, I find that the educational program recommended by the Department fails to offer FAPE to E.C. Pursuant to School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985], was an Appropriate School for . 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 does 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 does 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. I find, at the outset, that the program offered at correlates well with the student’s functional needs, as identified by credible witnesses. . is a . He is functionally grouped in a classroom whose students span a , enabling him to serve as a peer model and to learn from others. Specific measures are taken to encourage generalization of skills across personnel and environment. Both the Parent and ’s teachers uniformly agreed that the child is making meaningful progress within the . Its methods and curriculum are based upon empirical research and its personnel are experienced with the neuro-developmental profile demonstrated by . Data is taken on a weekly basis, facilitating assessments of the child’s progress and areas of deficit. In this manner, the student’s goals may be individually tailored to meet his needs. .’s teachers receive on-going training in various educational protocols, including the Floortime methodology and ABA. Tr. at 787-856. .’s teacher and related service providers are certified by New York State and even its teaching assistants possess Bachelor’s degrees. . receives intervention for sensory processing issues and intensive services designed to facilitate communication and social awareness are addressed as are academic skills directed at number recognition and understanding. is incorporated into ’s program. Tr. at 856

Beyond this, the Parent’s placement provides related services on site during the day and offers a rich array of sensory processing opportunities, including a and adaptive physical education. Inter-disciplinary conferences are held once per month and, in this manner, there is ongoing and consistent collaboration and communication between .’s related service providers and teachers. The curriculum includes participation in community activities and parent training is incorporated into its programming.

Having said this, I find that the classroom to which . is assigned is overly distracting for a . Although the pupil/personnel ratio is described as , the presence of 14 individuals within the same room is . This is compounded by a classroom environment which additionally includes “a sensory corner with a swing and a fluff chair, which is like a beanbag chair and like sort of a mini-trampoline and then there's more of a symbolic or sort of play area with more symbolic toys--puppets and things like that,” Tr. at 802.

Finally, the Department’s reference to Application of a Child with a Disability, Appeal No. 08-119 is completely at odds with long-standing federal case law (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]). 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., supra.).

While it is true that . receives his related services in 30 minute increments at , 10 minutes less than mandated on his IEP, Ms. testified, “. . . We made modifications to the duration because he was expected to start middle school. And in middle school they do 40 minute periods, and so the duration matches a period – rather than a 30 minute session, which is more common in elementary school.” Tr. at 124. This is hardly rousing support for a 40 minute time frame based upon the child’s needs.

“[U]ltimately, the issue turns on whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G. at 364, supra; see also Gagliardo, supra, at 112). In this respect, testimony regarding the student’s progress is credible and uncontroverted. Given the above, I believe was only partially appropriate for . during the 2011-2012 school year.

Is the Parent entitled to equitable relief pursuant to Burlington, supra, for the 2011- 2012 school year?

The evidence indicates that the Parent participated willingly in her son’s CSE convene, participated willingly in Dr. ’ assessment, visited the Department’s placement and immediately shared her concerns by letter, to which she received no response. It was not unreasonable to visit the Department’s placement with another individual, particularly a professional familiar with one’s child who might offer insights into a program’s appropriateness or lack thereof. Similarly, one would hardly expect a responsible parent to blindly accept an educational placement for their mentally and physically disabled child as suggested by the Department’s Memorandum of Law. Exh. i at 16. Although it is true that the Parent did not bring any educational documents to her site observation, the record does not indicate that anyone requested her to do so.

Conclusion

The parent’s request is granted in part.

Wherefore, it is hereby ordered that:

Within thirty (30) days of the date of this Order, upon due proof of payment and an affidavit from the , the Department of Education shall directly reimburse and , the Parents, for tuition expenses at the in the amount of $10,000.00. The Department of Education shall make further payment to the in the amount of $65,00.00, representing the Department of Education’s total liability of $75,000.00 for tuition expenses incurred by the family at the during the 2011-2012 school year. Dated: July 27, 2012

LEAH BOTWINIK ALMELEH, ESQ.

Impartial Hearing Officer

LBA:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Demand for Due Process, 7/7/11, 13 pages C Final Notice of Recommendation Annual Review and Reevaluation from DOE to Parent, 7/13/11, 1 page D Letter from Parent to CSE 9 and CSE 7, 6/17/11, 5 pages F Summer 2011 Schedule, n/a, 1 page G 2011-2012 Class Schedule, n/a, 1 page H Interdisciplinary Report of Progress Update, 12/11, 16 pages I Enrollment Contract 2011-2012 School Year, 6/22/11, 6 pages J Correspondence to IHO re Parents’ Subpoenas to DOE, 7/26/11, 9/2/11, 6 pages K Correspondence between IHO and Parents’ Counsel Regarding Subpoena

Objections, 9/2/11, 3 pages L District 75 Referral Form, 6/23/10, 1 page M Nickerson Letter, 6/23/10, 1 page O Interdisciplinary Progress Report Update, July 2011, 1 page P NYC/DOE Profile, 2/14/12, 1 page Q Affidavit from , 2/14/12, 1 pages R NYC/DOE, 2/14/12, 20 pages S NYC/DOE Psych Evaluation, 1/14/08, 5 pages T Counseling Report, 2/7/08, 3 pages U Addendum to Ed. Progress Report, 4/29/09, 1 page V Speech and Language Report, 2/4/08, 2 pages W OT Progress Note, 1/18/08, 3 pages X PT Progress Note, 2/5/08, 3 pages

DEPARTMENT OF EDUCATION

1 DOE Individualized Education Program, 3/12/10, 22 pages 2 DOE Individualized Education Program, 5/2/11, 19 pages 3 DOE Minutes of CSE Meeting, 5/2/11, 2 pages 4 DOE Final Notice of Recommendation, 8/13/11, 16 pages 6 DOE l Evaluation by , PhD, 1/11/18 7 DOE Observation, 12/1/10, 3 pages 8 Rebecca School Interdisciplinary Report of Progress, 12/10, 8 pages

9 District 75 Referral Form, 5/2/11, 1 page

10 12 Month Consent Form, 5/2/11, 1 page

IMPARTIAL HEARING OFFICER

i DOE Memorandum of Law, 7/17/12, 17 plus cover page ii Parents Closing Brief, 7/17/12, 17 pages

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Footnotes

[4] The witness noted that .’s ability to recognize words was dependent upon the format, auditory or visual, in which they were presented.