Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 15, 2011

August 16, 2011

October 14, 2011

October 18, 2011

October 24, 2011

December 8, 2011

December 20, 2011

Actual Record Closed Date: January 25, 2011

Hearing Officer: Rona Feinberg, Esq.

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

Attorney Department of Education

Attorney — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 16, 2011

Attorney Department of Education

Attorney — Parents

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

Attorney Department of Education

Attorney Mother — Parents

Dr. School Psychologist Department

(via telephone) of Education

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

Attorney Department of Education

Attorney Mother Special Education Teacher Department of — Parents

(via telephone) Education

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 24, 2011

Attorney Department of Education

Attorney Mother — Parents

Parents

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 8, 2011

Attorney Department of Education

Attorney Mother Father — Parents

Director of — Parents

(via telephone)

ABA Therapist — Parents

(via telephone)

Physical Therapist — Parents

(via telephone)

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

Attorney Department of Education

Attorney Mother Father — Parents

Therapist — Parents

(via telephone)

INTRODUCTION

On August 15, 2011, August 16, 2011, October 14, 2011, October 18, 2011, October 24, 2011, December 8, 2011 and December 20, 2011 an impartial hearing was conducted pursuant to the Individuals With Disabilities in Education Act (“IDEA”), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, (“the child”). The hearing commenced at 10:00 a.m., 10:00 a.m. 12:15 p.m., 1:00 p.m., 1:10 p.m., 10:00 a.m. and 9:00 a.m, respectively. The hearing was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

The child, who is classified on his Individualized Education Program (“IEP”) as having “ and attends , for the 2011-2012 school year. In a letter dated July 8, 2011, the child’s parents, by their advocate, ., filed a Demand for Due Process requesting an impartial hearing (Parents’ Ex. A). The parents filed an amended Demand for Due Process on September 23, 2011 and both parties waived the resolution session related to the amended request (Parents’ Ex. C). In their complaint the parents maintained that for various specified reasons the Department of Education did not offer the child a Free and Appropriate Public Education (“FAPE”) for the 2011-2012 school year and they requested tuition reimbursement for child’s tuition at . The parents also requested reimbursement for the home program that they had in place for the child. The Department of Education filed a response denying the allegations in the amended complaint.

A pendency hearing was held on August 15, 2011 and an Order of Pendency was issued on or about August 16, 2011.

The Demand for Due Process was filed on July 8, 2011 and I was assigned as the impartial hearing officer on July 11, 2011. The original compliance date was September 6, 2011. A pendency hearing was held on August 15, 2011 and a subpoena hearing was held on August 16, 2011. On August 16, 2011, pursuant to a request by both parties for extensive testimony and issues, the compliance date was extended to October 11, 2011. A hearing was scheduled for September 30, 2011. Pursuant to a request by both parties for the availability of witnesses, the hearing was adjourned and the compliance date was extended to November 10, 2011. The hearing was held on October 14, 2011, October 18, 2011 and October 24, 2011. On October 14, 2011 pursuant to a request by both parties for the availability of witnesses, the compliance date was extended to December 7, 2011. On November 14, 2011 pursuant to an unopposed request by the parents for the availability of witnesses the compliance date was extended to January 6, 2011. The hearing continued on December 8, 2011 and it was completed on December 20, 2011. On that date pursuant to a request by both parties for receipt of the transcript, time to file closing briefs and the issuance of a Decision and Order, the compliance date was extended to February 6, 2012.

All of the extensions in this case were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations.

THE PARENTS’ POSITION

represented the parents at the hearing. , Esq., appeared for the parents at the pendency and subpoena hearings and , Esq., appeared for the parents for the duration of the hearing. On behalf of the parents Ms. alleged that the Department of Education did not provide the child with a free appropriate public education (“FAPE”) for the 2011-2012 school year, that is an appropriate placement for the child, that the home services are an appropriate and necessary part of the child’s education and that the equities of the case support the parents. Therefore, they asserted, the Department of Education should be required to reimburse the parents for the tuition at and all of the home services.

THE DEPARTMENT OF EDUCATION’S POSITION

, Esq., represented the Department of Education at the hearing. He asserted that the Department of Education provided the child with a FAPE for 2011-2012 school year, that is not an appropriate placement for the child, that payment for the home services is not warranted, and that the equities of the case support the Department of Education.

THE EVIDENCE AT THE HEARING

The Department of Education’s Case

, Ph.D., is a New York State certified school psychologist and he testified as to his educational background. Dr. currently works for the Department of Education and he described his duties and responsibilities in that position ( : 81-84).

On May 12, 2011 Dr. participated in an IEP meeting for the child; he was the only Department of Education member at the meeting. Prior to the meeting he gathered information about the child’s preschool services, contacted the parents, observed the child at his preschool and requested progress reports and assessments from the school.^[1] He reviewed all of the information before he conducted the IEP meeting ( : 84-86, 112113, 115).2 The participants at the IEP meeting included the child’s mother, and the educational coordinator at the ”), the child’s then-current school, and some of the related service providers who worked with the child ( : 86; DOE Ex. 3 at 21). There was a “full range discussion” and all of the participants “had an opportunity” to present their concerns. For example, there was a discussion about the use of the , or . There was also a discussion about the child’s , his improved ability to ,” his .” In addition, the participants discussed the child’s Special Education Iterant Teacher (“SEIT”) and Applied Behavior Analysis (“ABA”) services, the “carry over” between home and school and fact that the child could be “overstimulated, which was a justification of why some of these services were necessary in the home” ( 87-88). The providers also gave information about the child’s low muscle tone, fine motor skills, motor planning issues and proprioceptive and body awareness ( : 88). Dr. noted that the parents were particularly concerned about a transfer from ABA ( : 90).

Dr. drafted the child’s IEP. He explained that the goals were developed based on information from the child’s providers about his “present levels of performance and goals” and on the child’s prior service plan. Wherever Dr. did not have goals from a provider he referred to the earlier IEP. He testified that the goals on the May 12, 2011 IEP were not discussed at the IEP meeting ( : 93). Dr. explained the importance of the “Management Needs” portion of the IEP and he reviewed that part of the document ( : 93-95; DOE Ex. 3 at 2-3). He then reviewed the annual goals and short term objectives on the IEP and explained why each of them was included in the document; some of the goals and objectives were based on the reports provided by the related service providers or the previous IEP ( : 95-101). With respect to the goals, Dr. noted that during his observation of the child he saw the child had “ ” that would affect not only eating but communication as well ( : 100-101; DOE Ex. 3 at 8).

Dr. acknowledged that the exhibited behaviors that interfere with his learning ( : 145). However, there was no ”) in the IEP. Dr. testified that a should be in place prior to the IEP as it is not part of the IEP process. Specifically, he explained that the BIP should be at the child’s school and “transferred over” so it could become part of the IEP, noting that a psychologist conducting a “Turning Five” evaluation would not have proper access to develop a ”) “on route” to a BIP ( : 145-149).

There was a “great deal of exchange” at the IEP meeting about the appropriate amount of related services for the child, and Dr. did not “know that there was any uniform concurrence around how much related services or where the related services should be” ( : 102). Ultimately the Department of Education recommended . The recommendation was for individualized services because the child “wasn’t’ quite at a point where he could learn in a setting where there were distractions from other children” ( : 102-103). He testified that the child had “tremendous need” and thus there is an “extensive amount of services recommended for each service domain.” Dr. noted that not all of the services were meant to be provided in a District setting. Specifically, school periods of related services “typically fall within 30 minutes, “and thus where 60minute sessions were recommended they were meant to take place outside the course of the school day ( : 103-104; DOE Ex. 3 at 13). He stated that “more than likely” those services would be provided via a related services authorization (“RSA”) letter and stated that he discussed RSAs at the meeting. Dr. testified that he recommended 1:1 counseling as a related service to help the child learn appropriate social skills that are needed to “eventually interact with his peers, typically performing or otherwise” ( : 104, 124-125, 163, 179).

Dr. made the recommendation of a program after the team determined that the child would have a classification of “ ” ( : 105-106). He noted that the “typical recommendation” for that classification would be a classroom in District which is a program “specifically designed” for children with , particularly, . He testified that there “wasn’t a lot of agreement about it” at the IEP meeting and acknowledged that the participants from the recommended that the child continue in a ABA program as did Dr. in her report dated October 20, 2010 and December 2, 2010. Dr. testified that he did not have any report, evaluation or assessment that rebutted Dr. s recommendation. However, he determined that the program would be appropriate for the child. He noted that the child would have school based supports and a , in part to facilitate toileting and feeding and to “assist[ ] with ambulation” throughout the school day ( : 105). He stated that the would “not only support [the child] throughout the day, but provide that additional supervision” and “additional structuring” to help facilitate the transition from the preschool to the school age setting. Dr. did not know “exactly what the skill set of the paraprofessional would be” ( : 106, 111, 113, 122-123, 125-126, 129-133; DOE Ex. 4 at 7).

He disputed recommendations at the meeting that the support and SEIT be continued ( : 116-117). With respect to , Dr. explained that District schools have “the same type of support” for students with and that he could not “add a service” that was already provided by specially trained educators in the program. He testified that he had a “great deal of training of what’s provided in District ” and that he knew “for sure” that ABA is “offered on an individualized basis for those children that absolutely need it” ( : 120).

There was a discussion about having an provide weekly services to the child at home. While Dr. “believe[d]” the child would benefit from those services, he did not think it was “absolutely necessary” given the amount of services and support that was recommend for program ( : 107, 109, 168). And, he believed that it would be too restrictive for the child to have an or any other therapist to come into the home on a “consistent basis” ( : 117-119, 132-133). Dr. based his determination on the reports about the child (which he enumerated), the “extensive review of progress” provided by the participants at the IEP meeting and his observation, and stated that “even given the limitations that were pronounced in [ ] those reports,” the child could still be served in a District setting because it is “set up to support his needs” ( : 113-116). He testified that the IEP indicates that the child would benefit from the use of discrete trials about two hours a day, and describes ABA methodology without using the “brand” of ABA. While the child’s class may not use ABA per se, it may use the “exact methodology” without calling it ABA, which would be appropriate for the child ( : 171-173). The trials would be conducted in a 6:1:1 setting, not necessarily a 1:1 setting ( : 173).

The speech and language related services on the IEP were reduced from three times a week for 60 minutes on the prior IEP to two times a week for 60 minutes on the May 2011 IEP. Dr. explained that the reduction was based on his “professional judgment” and that there was no report, evaluation or assessment to support that reduction. While he “was not necessarily in disagreement with giving more, he was concerned about the child’s ability to learn core skills at his level in a 6:1:1 class if he is “pulled out too often” ( : 174-176). When asked on cross-examination why he did not recommend additional speech for the child outside of the school day to eliminate the “pull out” problem, Dr. replied that, “[a]ctually, I wish I did” ( : 178).

There was no discussion of a transition plan to help the child with his transition from his 1:1 ABA program to the program recommended on the IEP ( : 162). While Special Education Teacher Support Services (“SETSS”) was not discussed at the meeting and was not included on the IEP, Dr. testified that “in hindsight,” “perhaps” the child “could have been a great candidate for SETSS” ( : 164-165). Extended day services were not addressed because extended day is not a special education service ( : 166168).

One of the parents’ primary concerns was parent training. However, parent training was not put on the IEP as a related service because it is “beyond the scope of that particular set of recommendations” and was “highly atypical.” He stated that since the recommendation was “guided by the professional belief and understanding” that the child could be serviced in a community school, “the parent training would not have been part of that.” Dr. testified that parent training would be a “very unique kind of service” in terms of school based support ( : 110-111). The parents disagreed with the rejection of their requests for the home based services and the parent training and ( : 111-112).

There was no placement officer at the IEP meeting and there was no discussion with the parents about any site locations that would be able to meet the child’s needs, particularly with ABA services ( : 121). The team did not discuss the child’s need for “prompt methodology” which was recommended in Dr. ’s report ( : 134-135). The IEP is blank where it should be indicated whether child uses a communication device; Dr. testified that the omission was a “mistake” but that the communication device is indicated on another part of the IEP. Dr. testified that while the IEP does indicate that the child needs an “assistive technology device and/or service,” it is not as specific as it “should be” ( : 135-137; DOE Ex. 3 at 20). When asked why the IEP indicates that the assistive technology device should not be used in the child’s home, Dr. responded that in his “professional opinion” the use of the device in the home, in addition to using it in the classroom, would be “too restrictive” for the child; no one else on the IEP team “expressed that concern” ( : 137-140). He did not tell the child’s mother about the availability of an assistive technology evaluation but did tell her that she could request a revaluation of the case at any time and did not have to wait for an annual review ( :140-141).

Dr. testified that the fact that there are no goals for toileting is an “error of omission” ( : 142-143). He did not recall whether the child’s mother was advised that the TEACCH methodology may be used in one of the District classrooms, and he testified that no one from the Department of Education evaluated the child to see whether he would learn effectively with the TEACCH method ( : 158-159).

The parents were not given a copy of the IEP after the meeting but it was sent to the parents on June 23, 2011. He stated that the child was recommended for a 12-month program and that the school year for him, as a “ ” child, would have begun in September 2011 because summer services would have been provided by the Committee on Preschool Education (“CPSE”) plan ( : 159-161). He stated that he did not have that plan in his file and so he “made an assumption” that there was a plan in effect for July and August 2011 ( : 162).^[3]

After Dr. finalized the IEP his “family worker” sent it, along with a District 75 referral form and the documents in the child’s file, to the “general placement office”; the FNR indicated only the services that were recommended on the IEP ( : 150-152).

has been a special education teacher for 11 years and currently works at located at : 194-195, 220).^[4] She has a Master’s Degree in special education and has New York certification in special education. She is also certified “through Albany” as a therapist in Applied Behavioral Analysis (“ABA”) therapist but is not a Board Certified Behavioral Analyst (“BCBA”). She has taught students with and for the past two years has worked exclusively with students who have . In the evenings she does ABA for Early Intervention for students on the autism spectrum, and she “agreed” that there are some children on the autism spectrum who require ABA intervention ( 195-196, 213214, 218-219). She thinks that TEACCH is also a valid strategy to use with children on the autism spectrum but does not know whether that method is scientifically validated ( : 216-220). In her classroom she incorporates “a lot of methodologies” including TEACCH, which is “very useful for almost every child she has had in her class. She also incorporated ABLLS and a PECS ( : 239-241, 245-246, 270).

Ms. testified that if the child had attended during the summer of 2011 she would have been the child’s teacher. In July 2011 there were four students in her class, all boys; there was a classroom paraprofessional, , and one of the students had a paraprofessional ( : 197-198, 249-250, 269).^[5] Ms. stated that the students in her class were “diversified.” She reviewed the child’s IEP prior to testifying at the hearing and based on that review she opined that the child would have “fit in” her class ( : 198200). She noted that one of the students was similar to the child. In addition, two of the students had “complete ,” one was “emerging” and one did not yet have any expressive language ( : 201, 269). Most of the students had receptive language and she would have been able to pair the child up with someone for social skills ( : 201, 221).

Ms. referred to the child’s IEP during her testimony and she explained how she would have implemented various goals on that IEP if the child had been in her class during the summer of 2011 ( : 201-209; DOE Ex. 3). When asked about the reference to “learn units” with respect to how the child’s self-management needs would be measured, Ms. stated that she was not familiar with the term and “assumed” it referred to “whatever unit” the child was working on ( : 251; DOE Ex. 3 at 5).

She noted that one of the goals on the child’s IEP was that he sit for 30 seconds; other students in her class had the same goal ( : 242). She explained how she would have addressed the child’s academic management needs in her classroom and that the child would have had 1:1 support though his mandated paraprofessional ( : 198-201; DOE Ex. 3 at 3).

Although P-94 is not an ABA school “per se,” Ms. does discrete trials with the students who she believes can benefit from the trials. In particular, one of the students had needs similar to those of the child. During the summer of 2011that child had a 1:1 paraprofessional. Ms. did ABA and discrete trials with that child in the morning for about 15 minutes and sometimes in the afternoon as well. She taught the paraprofessional to “run” the discrete trials and take data; however, she did not do any “graphing.” The paraprofessional did about two-thirds of the discrete trials with the student and she did about one third of them ( : 201, 221, 229-230, 256-257). Ms. exercised her discretion as to when the use of discrete trials was appropriate ( : 230231). She explained that the measurement used with that child was 8 times 80% and that a skill performed three times in a row was considered “mastered” ( : 200, 211, 257258).

Ms. testified that she would have used discrete trials with the child. When asked if she would have been able to fulfill the requirement of using the discrete trials “over at least ten hours spread across 5 school days,” as indicated on the IEIP, she explained that she would not be “sitting with a child for two hours a day” doing discrete trials, but that “in the course of the day” she would have used ABA matching and other programs that would help the child ( : 211-212; DOE Ex. 3 at 14). The amount of teaching time she was able to give to a particular student during the school day varied depending on what the students and the paraprofessionals were working on at the time ( : 222).

Ms. agreed with New York City Department of Education’s description of ABA methodology and when it should be used and agreed that, based on the child’s IEP, he fits into the category of students who would benefit from ABA ( : 259-261; Parents’ Ex. OO).

Ms. testified that in order to determine whether the child needs a BIP she would have to meet with the child and that a meeting would also be held with the parents, the counselor and one of the administrators ( : 267-268).

She explained that she reviews the related service goals with the various providers and that she implements those goals, including those based on the PECS, in conjunction with those providers ( : 205-209). Ms. stated that the related services mandated on the child’s IEP could have been met at the school during the summer of 2011.6 At that time each of the providers had a regular room. The school had an and a physical therapist on site and it provided ( : 198-201; DOE Ex. 3 at 3). A new sensory room was completed at the end of July or beginning of August 2011 and was part of the summer curriculum ( : 210, 252-254, 256). She did not know whether there was equipment suspended from the ceiling but there are “things that students can swing on” ( : 252). During the summer there were no team meetings with the related service providers but there are such meetings during the school year ( : 274).

Ms. described the eight periods of the school day for the summer of 2011, noting that she used TEACCH throughout the day ( : 225-226, 243-244). In particular, after the morning meeting the class had “literacy” for 40 to 45 minutes during which the Ms. did not recall having students who get related services in 60-minute increments ( : 256). students were organized into “functional groups.” A paraprofessional spent time with the group to which she was assigned and the paraprofessional would be with the child. Ms. would also “be there.” She would “lay out” a program for the group and “get it started.” The paraprofessional would continue with the program and Ms. would “go back and check on it.” Then, she “might work with” each child “for a while” and rotate to the next group ( : 224, 227).

Ms. acknowledged that children on the have a great need for consistency ( : 237). Although Ms. taught a class during the summer of 2011, she is not currently a classroom teacher. Beginning in September 2011 the four students in her summer class moved to other classrooms with new teachers and the classroom paraprofessional moved to another class. Therefore, had the child been in her summer school class and stayed for the fall he would have had a new teacher in September and possibly a new classroom paraprofessional and a new paraprofessional ( : 234-238). She testified that transition is difficult for all children on . She noted that the students have “many transitions” such as going from “room to room” and going to the restroom, and that one of the “focal points” of the teachers at is addressing and dealing with those transitions ( : 238-239). Students with also have difficulty with generalization, including generalizing skills across people and from school to home ( : 262-264).

The school has a “pretty extensive parent training program” in that a parent coordinator holds monthly parent training based on the parents’ needs. In addition, the speech department holds monthly meetings during which parents are trained to use the assistive technology used by their children. Teachers do not go to the students’ homes but they meet with the parents at school and parents can talk to the teachers “at any given moment.” The school is also “connected” with that offers instruction for home-based management ( : 213, 216, 261, 264-266, 273). Ms. believed that any intervention is helpful, whether at home or in school ( : 265-267).

Ms. opined that if the child had a there would not have been any problem with the transition from a private school class with as many as seven adults to six children to the , because he would still have had a throughout the day ( : 214). The Parents’ Case is the child’s father and is the child’s mother. When the child was one year old he began to “flap his hands a lot” and he did not interact with anyone in his environment. He is now at the level of a one and a half to two year old and in some areas he is “even less than that” (Setya: 502-503). Ms. explained that the child has eye contact issues, which have “greatly improved recently. He also has and no depth perception. The child had to correct his ( : 503). The child is non-verbal and has . He and when he is or his parents. In particular, Ms. stated that the child used to “ ” and the parents had “bite marks everywhere.” That has “come down a lot this year” and at the time of the hearing Ms. had “ mark. The parents cannot leave the child unsupervised in a social situation “in case he gets ” ( : 504-506). Now that the child does not bite his mother “as much as he ” ( : 506).

The child’s make him “ , materials [and] sometimes even light. Taking him out of the house was “very very hard” and they did not start going to the park until he was three and a half or four years-old. The child cannot express , especially when he wets himself. He has a “very hard time adjusting to a new environment and has never gone to a birthday party ( : 504). Physically, the child has , and he engages in Ms. testified that the child does not know how to appropriately use “down time” and someone has to be with him all the time because of his “constant” and self-directed behaviors, which she described ( : 506-507).

For the 2010-2011 school year the child is a ABA program the child was taken out for related services during the day. Based on the child’s evaluations and how much ABA the child requires during the week, the parents thought that an “intensive one-toone” ABA program like would be more appropriate to meet the child’s needs. In addition, the child’s classroom at was “on the smaller side” and the child gets very easily distracted during the course of instruction ( : 436, 474-475). He stated that the child was not yet ready for the “socialization component” and it seemed like a in a classroom by himself for a “good chunk of the day” would be “beneficial and appropriate for his needs” ( 475). is 20 miles from the child’s home and the travel time is 30 to 40 minutes ( ” 486-487).

Both of the child’s parents attended the IEP meeting for the 2011-2012 school year. The supervisor of the home , Mr. attended as did “a lot of” the child’s teachers at for the 2010-2011 school year ( : 436-437, 475; Setya: 513).7 Mr. testified that there was a “long discussion” about the child’s needs. The child’s teachers at the time and Mr. all agreed that the child needed ABA instruction. There was also a lot of discussion about the child’s related services; he received at school and also received home , services and “even an out of school teacher” before the home services team began. There was a “general agreement” that “all these” services were appropriate for the child and “necessary” for the child to make progress ( : 437). There was no discussion at the meeting about the goals on the IEP, Dr. never told the parents they had a right to go over the goals, and the parents never declined the right to review the goals ( : 443-444). Nor was there any discussion about the child’s need for “generalization” or how the child would generalize his skills from the school to the home, which, Mr. explained was a big challenge for the child ( : 446-447).

Dr. was the only Department of Education representative at the meeting. When school placements were discussed there was a “categorical implication” that the likelihood that the child “could or should” receive “was not a possibility” and Dr. disputed the home services. Dr. did not provide any report, assessment or evaluation to support his position. Mr. testified that Dr. read from a statement in the child’s IEP and that he had the turning five evaluation, which “specifically mentioned that is important” for the child. Dr. also had a report based on his observation of the child at ( : 445; DOE Ex. 5). Mr. recalled from the meeting that the home services that were ultimately approved were two hours a week of , an therapy and an hour of ; those services were “a much lower rate” than the child had been receiving during the 2010-2011 school year. The IEP does not indicate where those services are to be provided and Mr. stated that the parents “assumed” that “separate location” meant the home : 438-440, 466-467). There was no discussion about a transition plan from to the placement that would be recommended by the CSE ( : 514).

Dr. and the personnel from believed that the was appropriate for the child ( : 475-476).

Mr. testified that the participants at the meeting agreed that the related services provided at the school were not adequate to meet the child’s needs and that there needed to be “consistency” over the weekend so that he did not regress ( : 439). And, he explained that the child has been receiving for the past four years and that it is the “only thing that really helps him learn” ( : 440-441). No one at the meeting offered the parents “parent training” and no one told them they were entitled to have individualized parent training. Nor were they told that they were entitled to meet with a placement officer to discuss placement options ( : 442). While the IEP states that “school staff would benefit from the utility of specialized behavioral training and modification methods for autistic children that uses discrete trials to measure behavior, teach functional skills and evaluate progress,” Dr. did not explain how this would be met or specifically address this portion of the IEP ( : 465; DOE Ex. 3 at 14).

At the IEP meeting the parents were given a “Final Notice of Recommendation Form” (“FNR”) dated May 12, 2011. The form indicated that the child would be placed in a 12-month program in a specialized 6:1:1 classroom in a specialized school and would receive individualized services, specifically, 2x30 and 1x60, 3x30 and 2x60, and 2x30 and 1x60, and 1x30. The FNR also indicated a and adaptive physical education. Mr. believed that mandate was “approximately appropriate” for the child but that the four one-hour sessions of occupational therapy he is now receiving are “more appropriate” than the three session mandate. The IEP also indicated that the child would be provided with transportation ( : 449-450, 485-486; DOE Ex. 3 at 13; Parents’ Ex. K).

When the parents did not receive a placement offer by June 15, 2011 they sent a letter to at Region asking for a placement prior to the start of the school year. They also stated in the letter that they believed the program was “inherently inappropriate” for the child and that if the Department of Education did not offer a “timely and appropriate placement” the parents would be seeking reimbursement or Connors funding for Nexus and various related services and transportation ( : 448-449; Parents’ Ex. H). The parents never received a response to their letter ( : 452). That month they considered “seriously” (Setya: 524). The IEP is dated June 23, 2011 and the parents received it on June 28, 2011. However, they did not receive an FNR recommending a placement site until July 5, 2011, after the 12 month 2011-2012 school year had begun ( : 442, 446;

^[8]

Parents’ Ex. G). The recommended school on the FNR was P094M @ 397 M at 12 Spruce Street ( : 453; Parents’ Ex. G). The parents called the phone number on the FNR and the person who answered said that the school was “not opened over the summer and was scheduled to open on September 8th ( ” 453-454). At that point the parents called , who also told them that the school was not open. However, she told them they could look at a “similar program” at . Mr. immediately called that school and was told that the earliest they could visit was July 15th; the parents visited on that date ( : 454-455).9 The child started at on July 6, 2011, after the holiday weekend ( : 452).

The principal of the “system,” , and the assistant principal, were there when the parents visited on July 15th. The parents toured the school and looked at the classrooms but, for a “variety of factors,” they determined that the placement was not appropriate for the child. In part, the determination was based on the class rather than 1:1 instruction. In addition, Ms. told the parents that the child would be provided with a “health para” that “would be trained to “have the capability of offering discrete trials.” However, Mr. stated that while they were at the school they observed a student similar to the child who was having a “ .” The student had a ” that did not seem to have the “first idea about what to do” with the child; the para “ into the bathroom” and the parents did not see what happened after that ( : 456, 462-463)

The parents talked to Ms. about the modality of instruction - - some “discrete trial teaching on occasion” - - which was inadequate for the child’s needs ( : 454-455). Mr. testified that Ms. never told the parents that the staff had specialized behavioral teaching and modification methods for . Rather, she indicated that the school had “some kind of consultant on the staff who visited very periodically," but “nothing that suggested that there was specific training” in ABA instruction ( : 465). Ms “indicated that she could have a conversation with and she felt it could be arranged” for the child to attend the school for the summer ( : 491).

Mr. noted that while over the summer the school day was six hours, only four of those hours were spent on actual instruction ( : 455). The parents were concerned about the child’s “transition issues.” Moreover, they “had no idea” what the recommended placement at was like because it did not yet exist ( : 458). After their visit the parents sent the Department of Education a letter on August 5, 2011 stating several reasons that they were rejecting the placement, including the fact that the recommended placement was not opening until September, effectively violating the child’s 12 month mandate ( : 460-462; Parents’ Ex. F). No one from the Department of Education responded to that letter ( : 466-468).

The parents applied to the Department of Education Charter School for Autism - a - - through the “lottery” but the child did not get in (Setya: 524, 526-527). They were “absolutely” open to a local school placement that would meet the child’s needs, noting that Nexus is in New Jersey and that the placement comes at a “significant time and cost” to them. Mr. testified that sending the child to is “not out of choice” but that it is what they think is “best for” the child and “what will allow him to make some progress” ( : 444-445). He stated that while does not provide related services, it has programs to address the child’s sensory issues and physical needs ( : 480-481; Setya: 525).

The parents attended a resolution meeting after they filed the demand for due process requesting reimbursement for Nexus and additional home services. However, the meeting lasted “all of thirty seconds. Specifically, the parents appeared on time and a woman, who he believed to be , told them that “based on what you indicated, there’s nothing to discuss” ( : 468-470).

On June 8, 2011, after the IEP meeting but before receiving an FNR, Mr. signed a contract with ( : 471-472; Parents’ Ex. DD). Mr. explained why he signed the contract prior to receiving the FNR, mainly to secure a place for the child in light of the fact that there was not yet a placement offer from the Department of Education. Mr. noted that in the event of an appropriate placement offer they were bound by the contract only for $7900.00, one month of tuition ( : 472-473; Parents’ Ex. DD at 2).

, Ph.D., has been the director of a school in , for six years. He has a doctorate in clinical psychology and is a BCBA (Schnee: 333-335). Dr. specializes in working with children on the autism spectrum since 1986. Prior to his position he worked privately consulting for families with children on the : 337).

There are 13 students enrolled at and the staff includes 13 teachers and two coordinators in addition to Mr. : 366). 10 The school developed a “proprietary curriculum” developed for the specific needs of children with autism. The school uses because it has “been demonstrated to be the most effective way of teaching youngsters on the spectrum” (Schnee: 338).

Dr. knows the child who has been a student at since July 2011 (Schnee: 337). The child is “ to express his needs. Therefore, the child has to understand the relationships between the pictures to things in the world, to discriminate those pictures from other pictures and thus “needs to be a good matcher” (Schnee: 339-340). In order to have those skills the child “ ” and “retain .” He must also be able to “effectively manipulate the systems that he’s interacting with in order to communicate” (Schnee: 340). Dr. explained that when the child began at there was concern that he would not be able to accepting the child to met with the child and his parents for about an hour and a half to two hours and assessed the child to see whether he had deficits that the school could address. Dr. “felt confident” that the school would be able to address the child’s issues and assist him in developing other skills necessary for “effectively managing his environment” (Schnee: 342-343).

The child is also challenged in his gross motor development and the instructors want the child to be able to “navigate in his environment without bumping into things and/or stepping on things” ( 351). The school has set up a “simple obstacle course” so that the child learns to “raise his legs to step over things” or “use the stairs appropriately” (Schnee: 353, 363-364).

Citations to pages 363-376 refer to Mr. ’s cross-examination of the witness.

The child is in school six hours a day and gets 1:1 instruction in his own room, including lunch, which is “instructional11 ( : 365-366). He has a team of instructors who change every hour so that he can generalize the skills he is learning across each person. Dr. described the child’s program and how it is addressing his needs. He explained how the teachers helped the child strengthen the areas of “scanning and tracking and simultaneously work[ ] on deficits in matching.” The school also worked with the child to develop the ability to “follow visual sequences” so that he could “be engaged in activities for a protracted period of time” and use his time “productively.” Once those skills became “reliable” the school developed a communication “exchange” system for the child. The teachers are now able to target self-help skills and address activities of daily living (“ ”) ( : 343-345, 349, 359-360, 365, 367, 370-371).

Dr. explained that the child requires intensive one-to-one instruction in order to “develop basic capacities of interaction, communication and self-help” and he requires “intensive repetition” (Schnee: 345-346). He testified that it “takes hundreds of thousands of hours” for the child to lean a simple task. For example, it took “months” for the child to learn a simple skill such as matching” to the degree that it was “reliable” as supported by data and that the instructors “continue to emphasize” the skill in the child’s programming ( 346). Dr. stated that the child is not yet ready to begin the academic challenges of reading, writing and math. Rather, in addition to matching, the instructors are working on following directions and addressing his gross motor developmental deficits ( 351-353, 368-370, 372).

The clinical coordinator of the child’s team is , who has about 15 years of experience working with children on the ( 346-347). Mr. observes all of the child’s instructors daily and opined that they are “superb instructors” ( : 347-348). He also “routinely” confers with the coordinator “twice a week or more” about the child’s program. Any changes made to the child’s program are identified on “data sheets” and the coordinator “models those changes for each instructor” and “sign[s] off” on them before they can be implemented (Schnee: 350).

11 The child leaves the classroom and goes into the school community when riding on scooter or learning to follow directions and generalizing skills ( : 367-368)

The collection of data “varies” but the school “insist[s] on at least two data points per week, per item, per program” which Dr. explained ( : 350-351). The instructors take data on the particulars within each program and Dr. described how a new skill or a change in condition is taught according to the child’s mastery of a particular prior learned skill under a particular condition (Schnee: 357-359).

Dr. testified that the child has shown “significant improvement” since he entered the school in July 2011. In particular, the child’s matching abilities have “increased significantly across many conditions,” he scans his environment” and he uses a PECS to “effectively communicate what his desires are” ( : 354-355, 357, 375-376). In addition, the instructors are now in the process of developing the ability to use a picture activity schedule which directs him from activity to activity throughout the day (Schnee: 355). The child’s attention has also improved and he following directions more reliably and across settings. And, his gross motor abilities have improved so that he is now “stepping over” objects rather than “knocking into” them or “stepping on” them and he is also learning how to use a scooter ( : 356, 372, 375-377). In addition, the child raises his hand and greets with a “hi”; if he forgets to raise his hand he can now match an “imitative model” and do so (Schnee: 356-357).

The does not include related services. Dr. explained that the child’s basic functioning skills can only be taught effectively by in an intensive setting, and that related services would “take time from” the instructors’ efforts to work on things that the school feels are a “priority” ( : 363). However, he gave examples of how the school “folds” in the child’s demands into the school day with programs that target gross motor development ( : 363-364, 372). Ms. testified that she was “more than satisfied” having the four hours of three hours and four hours of being provided at home ( : 524-525).

Dr. explained his “strong opinion” that the child should not be in a less restrictive setting this year. He testified that in a less restrictive setting the child “would not have the opportunities to learn the things that he needs in order to be interacting with his environment in a meaningful way,” in particular to be able to communicate effectively to “respond to the people in his environment who are making simple demands on him” ( : 348-349). He noted that when the child is in the “larger setting” at the school he gets distracted ( : 377-378).

has an “open door policy” for parents, who are encouraged to come to the school. When parents are there the school works with hem on “acquisition skills which would allow them to work more effectively” with their children and the children then learn to respond more effectively with their parents ( : 373; : 482-483; : 526). For example, if the instructors are teaching the child to respond to specific instructions, they would see that the parents know how to use the instructors’ techniques and the instructors would supervise the parents as they practice those techniques ( 374). The child’s parents have had long conversations with Dr. about the child’s issues and he “personally trained” Ms. : 526).

The tuition for for the 2011-2012 school year is $94,800.00. The parents signed a contract with and they are responsible for the cost of the program (Schnee: 359-360; : 471; Parents’ Ex. DD).

The child has been receiving since he was two and a half years-old (Setya: 522523). The coordinator of the child’s current home ABA program is and Dr. explained how the school coordinates with him and why it is “essential” that the school and home programs are coordinated ( 360-362). He testified that some skills are not taught at school because they are “home based.” He opined that the child requires home services because it takes him “months” to learn basic skills and thus a 30 hour school week is not sufficient to teach the child what he needs “just to function across settings” (Schnee: 361362).

The child’s home program consists of 12 hours of direct , four hours of two hours of : 508). Ms. explained how the parents arrived at this particular number of hours ( 512). All of the therapists provide training and to the parents, which Ms. opined they “absolutely” need to help them deal with the child’s behaviors ( : 512-513).

The ABA home program is supervised by . Mr. has a Ph.D. in psychology, particularly in the field of ( : 379-380). He has been working with students on for twelve years and he worked with the child in in 2008 ( : 380-381). He is currently employed by a home intervention program, and is the Director of ABA services. Mr. supervises about 30 special educators who implement ABA techniques with the children, and he described his duties and responsibilities in that position. He also works as a private consultant ( : 381-382; Parents’ Ex. II).

Mr. has been working with the child “consistently” since July 2011. He supervises the staff on his case - - , both certified special educators - - to make sure that they are properly trained to meet the child’s needs. He calls the instructors weekly and revises the child’s program to make sure it is up to date and to make adjustments for any difficulties the child may be having with his program. 12 Mr. also provides parent training and participates in team meetings ( : 382-383, 387, 401-402).13 The child gets ^[12] hours of direct ABA, eight with Ms. on Monday, Tuesday, Thursday and one day on the weekend, and four with Ms. on Sunday and Wednesday; each session is two hours. Mr. provides three hours a week of “supervision and curriculum building” ( : 387, 394395, 408-409; : 509, 522).

He explained that the child has delays in all areas and that his language is almost “non-existent.” Although he can “imitate initial sounds of words” he “does not really use speech to communicate.” The child’s receptive skills are “ ” but he is able to “identify body parts to follow instructions” ( : 383). The child also has “visual issues” ‘and difficulties with . He ; he is currently on a schedule for is “very much an issue for him” ( : 384). He has but will not initiate with adults but not with his peers ( : 384385). The child engages in “repetitive play” and he is “very demanding about what he specifically wants.” During sessions the child “engages in a ” ( : 385-386). To deal with the the team has developed an “elaborate reinforcement system” without which they “would have gotten nowhere with him.” His motor skills have “gotten a little better” in that the child is “quicker with his movements” and is able to get off the floor and crouch down “a little better” ( : 386).

Mr. described how he, Ms. and Ms. are addressing these needs in the child’s home and the progress that the child has made since July 2011 ( : 387-388). In particular, he noted that the child has progressed in his ability to “understand” and to “scan” visual stimuli and he is able to “pick things out based on the language that” the instructors have provided him. He can now make some initial sounds for “words for the things that he wants.” The child has also improved in his ability to “sit an stay focused on the task,” his eye contact has gotten better as has his interest in exploring and relating to the environment ( : 388-389).

Data is taken on a weekly basis and the instructors reassess the child’s progress and make changes based on that data ( : 391-392).

Mr. explained why the child needs a home ABA program in addition to the core program of ABA at ( : 392- 393). In part, he testified that without the home program there would be no transition or generalization of skills to the home and that the home program is necessary to prevent “regression” ( : 394-395, 407-408). Mr. explained why supervision of the child’s program is necessary ( : 391-392). He has observed Ms. and Ms. work with the child and he opined that the services they are delivering to the child are appropriate ( : 390).

Mr. and Ms. went to and to to “put the transition program in place” ( : 514515). Mr. described how the home therapists communicate with to coordinate the child’s programs and he has gone to several times. He opined that without that collaboration the child would not be making the progress that “he is making now” ( : 396397, 405-406). Mr. also meets with the parents and the home program provides “regular parent training,” which he described ( : 398-399, 403). He noted that the parents “can’t turn their back” on the child because he is “ himself.” Recently, the child has been getting up in the middle of the night causing the parents a lot ( : 399-400).

His hourly rate is $125.00 for three hours a week. The parents are also asking for three hours of parent training a month at that rate ( : 395). Ms. charges $100.00 an hour and Ms. charges $75.00 an hour ( 509-510).

is the who works with the child at home. She has a Bachelor’s Degree in ( : 302-303). Ms. began working with the child when he was 18 months old and she provided him with “early intervention.” In July 2011 she began working with the child four times a week at home for one-hour sessions, Fridays and Mondays after school and on the weekend. She believes that this schedule is appropriate for his occupational therapy needs ( : 304, 307 310, 312, 316). She uses a ball, a trampoline and a massager during her sessions with the child as well as toys that provide sensory input ( : 312-313). She also takes the child to the playground “when the weather is nice” (Co-Cruz: 322).

Ms. explained that the child has problems “mainly” with sensory integration and fine motor skills ( : 304).^[14] He also has problems with “visual tracking,” which presents safety concerns. Specifically, the child has “issues scanning his environment” so he needs a lot of guidance, particularly when he is in an unfamiliar environment and does not know where he is going ( : 304-305).

Since July 2010 the child has progressed in that he will now “tolerate” eating banana chips, which was “quite impossible for him a while back.” The child is also able to “scan” or look for specific objects when asked, and, when he drops something he will look for it on the floor ( : 308).

Ms. believes that the child has “ needs” because of his and she explained those concerns in a letter dated May 2, 2011. At that time (the 2010-2011 school year) the child was receiving three times a week for 60 minutes; although the child was benefiting from those sessions she did not think they were “enough,” and she recommended that the sessions be increased to four times a week for 60 minutes. Ms. testified that the child’s needs what she is “giving to him at least every day of the week” ( : 308-309, 314, 317319, 323; DOE Ex. 24). She also stated in the letter that the child has shown “very minimal improvement with his fine motor skills” despite the fact that “carry-overs” are followed by the child’s parents, caregiver, speech therapist, ABA therapist and classroom teacher when she is not there ( : 314-315, 323). Ms. explained that after each session she tells the parents what she worked on with the child and communicates that information to the others once a week via a Yahoo email group, which she described ( : 315-316, 321-323). Her communications with the other providers benefit the child because it organizes and focuses the goals they are each working on ( : 322).

Except for the Yahoo group that includes the child’s teacher, Ms. has not had contact with the child’s new school and she did not believe that he receives at school ( : 310-311, 323). The child’s parents pay her directly for her services. Ms. testified that she was told the range of rates is $90.00 to $125.00 an hour and she offered Ms. $100.00 ( : 303; : 511-512).

is a licensed physical therapist in New York and he has been working with children with autism for seven or eight years. Since July 2011 Mr. has been working with the child in his home program, providing four one-hour physical therapy sessions. He evaluated the child in October 2011 using the Peabody Developmental Motor Scale and testified that in his clinical opinion the child requires 60 minute sessions “for maximum benefit regarding attention to task and participation in activities” (Lepore: 413414, 419-420, 423, 425-426; Parents’ Ex. M).15

Mr. described the child’s deficits that are related to physical therapy. In particular he testified that the child has weakness in his trunk and both arms and legs. He has “poor static and dynamic balance and coordination,” including “object manipulation” and “ball handling skills” ( : 415-416). In addition, he stated that the child has “some tightness in his hips” and that he does not run, hop or balance on one leg independently (Lepore: 416). Mr. explained how he is working with the child to address these deficits and noted the meaningful progress the child has made since July 2011 ( : 416-419, 421, 423-424). He opined that if the child received fewer than four hours of physical therapy a week he may regress and noted that because “he is still young” he can benefit from “extensive therapy” ( : 421).

He does not communicate with the child’s other home providers but does, communicate with the parents about the child’s sessions and about what the child’s teachers and providers are doing with him. Mr. charges $120.00 an hour for his services ( : 421). He testified that his rate is within the $70 to $150 range of other persons in his field “depending on where and what services are provided.” However, he does not have firsthand knowledge of what others charge and the stated that $120.00 is what the parents

Citations to pages 423-427 refer to Mr. ’s cross-examination of the witness. “offered” ( : 426; : 510). Ms. explained that parents and other therapists that she interviewed told her the range of rates is from $100.00 to $150.00 and so she offered him $120.00 (Setya: 511).^[16] Mr. has worked for agencies that paid him rates of from $70.00 to $126.00 an hour but he did not know how the agencies determined the rates ( : 429).

has a Master’s Degree in pathology and she has a New York State license for pathology ( : 493-494). She is currently a clinical supervisor for , an agency that provides service to children ( ” 494).

Ms. began working with the child through when the child was about 18 months old. In September 2011 she started working with the child four times a week for one hour (Pennisi: 495).17 She described the child’s including his receptive delays and his delays in pragmatic skills, and she explained how she is addressing those deficits (Pennisi: 496-498). Ms. testified about the child’s progress since the beginning of the school year. For example, she noted that he is now able to identify a picture “in a field of five” rather than a “field of three,” indicating that his ability to scan through pictures and objects in both the field and in the environment has improved ( : 498). His ability to make sounds has also increased and his eye contact has “drastically improved.” The child is now able to look at the speaker and gain the attention of others to make a request (Pennisi: 499). She opined that considering the child’s deficits in other areas and the other therapists that assess his needs, four hours a week of is appropriate for the child so that there is “some progress” and no regression ( : 500-501).

Ms. charges $200.00 an hour for her services. She explained that the “typical rate” for therapists with her experience and level of expertise is between $175.00 and $225.00 an hour (Pennisi” 500).

The parents are asking for four hours a month of “team meetings” - - two hours twice a month - - of the child’s home therapists; each meeting is $1,000.00. Ms. explained why she believes these meetings are “essential” ( 517-519). Currently, the team meets once a month. The ABA therapists are at the meeting for two hours and the speech therapist is there for one hour ( : 521).

Ms. detailed the ways that the child has improved over the current school year, stating that this year “has been great” for the child. For example, she has seen progress in his aggressive behaviors, his . In addition, they are now able to go to the park and other places without being in a stroller ( : 528-530).

FINDINGS OF FACT AND DECISION

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment. 20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program. 20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347; Rowley at 181-182; R.E. and M.E. v. N.Y. City Dep’t of Educ., 785 F. Supp. 2d 28 (S.D.N.Y. 2011), appeal pending. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U. S. at 203.

The legal standard applicable to a request for reimbursement for educational services, such as in this case, is well established. A Board of Education may be required to pay for educational services obtained for a child by the child's parents, if: 1) the services offered by the Board of Education were inadequate or inappropriate; 2) the services selected by the parents were appropriate; and 3) equitable considerations support the parents' claim. School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 (1985). ***

I begin by noting that I credit the testimony of all of the witnesses who appeared at the hearing. The Decision as stated below is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record and, for the most part, will not be repeated here.

I.

The Board of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404[1][c]; Application of a Child with a Disability, Appeal No. 11-053. To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits Rowley, 458 U.S. at 188-189; R.E. and M.E. 785 F. Supp.2d at 40, and that the recommended program is the least restrictive environment (“LRE”) for the child. 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits. Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12.

The parents allege in both the Amended Demand for Due Process and their PostHearing Brief that for numerous of reasons, some of which are addressed below, the Department of Education failed to meet its burden under Prong I because the IEP was procedurally and substantively defective, a placement was not offered in a timely manner and the proposed program and placement were not reasonably calculated to provide the child with educational benefits (Parents’ Exs. C, VV). I will address only those issues necessary to reach a determination in this case.

In developing a IEP a school district must comply with the procedural requirements set forth in the IDEIA and the IEP must be “reasonably calculated to enable the child to receive meaningful educational benefits. Mrs. B. v. Milford Bd. Of Educ., 103 F.3d 1114, 1120 (2nd Cir. 1997); R.E. and M.E., 785 F. Supp. at 40-41. While not all procedural violations are considered “material and 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); Perricelli v. Carmel Cent. Sch. Dist., 2007 U.S. Dist. LEXIS 9873, at *30 [S.D.N.Y. Feb. 9, 2007], Application of the New York City Dep’t. of Educ., Appeal No. 07-046, “the Supreme Court and congress have emphasized the importance of the procedural provisions found in the IDEIA.” R.E. and M.E., 785 F. Supp. 2d at 40-41, citing Rowley, 458 U.S. at 205. When procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits . 20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513[a][2]; Perricelli, 2007 U.S. Dist. LEXIS 9873, at 30-31; Application of the New York City Dep’t. of Educ., Appeal No. 07-046. In this case I find that several procedural and substantive violations taken together constitute a violation of FAPE. Failure to conduct an FBA and develop a BIP

The parents assert in their Amended Demand for Due Process and in their PostHearing Brief, that the CSE denied the child a FAPE in part because it failed to conduct a FBA and develop a BIP (Parents’ Ex. C at ¶¶4, 14, 15, 40; Parents’ Ex. WW at 6-7; see Parents’ Ex. LL and TT at 51). I find this claim to have merit.

The documents available to the CSE for the “ ” process indicate that the child has behaviors that interfere with his learning, including, among other things, “high rates of passivity and stereotypy” and “jumping up and down” on the balls of his feet with his hands in the air when he becomes restless (DOE Ex. 5 at 2, Ex. 13 at 2, Ex. 24). Indeed, Dr. , the only Department of Education member at the IEP meeting, agreed that the child exhibited behaviors that interfere with his learning ( : 145). However, he testified that a BIP is “not really part of the IEP process” and that the school the child was attending should have had the BIP and “transferred [it] over” to be part of the IEP ( : 145-146).

I find that the failure of the Department of Education to conduct an FBA and develop a BIP for the child was a material violation of FAPE. The purpose of an FBA is to determine why a child engages in behaviors that impede learning and how the student’s behavior relates to the environment. The requirements of a proper FBA are set out in Sections 200.1(r) and 200.22(a)[2][3] of the Regulations of the Commissioner of Education (Commissioner’s Regulations) and are specified in R.E. and M.E., 785 F. Supp. at 26-27. See 8 N.Y.C.R.R. §§ 200.1(r), 200.22 (a)[2][3]; R.K., By Her Parents R.K. and S.L. v. New York City Dep’t of Educ, 2011 U.S. Dist. LEXIS 32248 at 56-57 (E.D.N.Y., January 21, 2011), adopted by No. 09-CV-4778 (KAM)(RLM) 2011 U.S. Dist. LEXIS 32235 (E.D.N.Y. Mar. 28, 2011), appeal pending. Based on the results of the FBA the CSE must design a BIP to manage the problem behaviors. 8 N.Y.C. R.R. § 200.22(b); R.K., 2011 U.S. Dist. LEXIS 32248 at 56-57.

The absence of a BIP based on an FBA is particularly troubling in this case since the IEP recommends a program in which the child’s health paraprofessional would be primarily responsible for the child, who neither the teacher nor the paraprofessional would have known prior to his entry into the classroom. In the absence of a BIP the teacher and the paraprofessional would have no guidance in how to deal with, and minimize the child’s behaviors, which in turn would negatively impact on his ability to transition into a new environment and to receive educational benefits. I note in addition that the IEP does not include any goals to address the child’s adverse behaviors.

The particular facts of this case distinguish it from cases in which some courts have held that the failure to conduct an where one was needed did not, by itself, constitute a denial of FAPE. For example, in A.C. and M.C. v. New York City Department of Education, 553 F.3d 165,172 (2d Cir. 2009), the Second Circuit found that the failure to conduct an did not violate FAPE. In that case both the Director of Special Education for the public schools and the school psychologist testified that an was “unnecessary.” In addition, a district-wide special education teacher testified that she did not believe an was warranted. The Court deferred to the findings of the SRO in concluding that even if the Commissioner’s Regulations had been violated, the IEP was nevertheless legally adequate because it satisfied the requirement that the school district “consider the use of positive behavioral interventions and supports, and other strategies to address that behavior” in conformance with 20 U.S.C. §1414(d)(3)(B)(i). Id. at 172-173. Here, in contrast, there was no testimony that an was inappropriate or not warranted. In fact, as noted, Mr. acknowledged that he child had behaviors that interfere with his learning ( : 145).

I find that the failure of the CSE to conduct a in compliance with the Commissioner’s Regulations was a material procedural violation of the IEP process and deprived the child of a FAPE for the 2011-2012 school year. Transition Plan

The parents also fault the IEP for not including a plan or services to help the child transition from his program recommended in a District school (Parent’s C at ¶ 43; Parents’ Ex. WW at 4). I find this claim to have merit.

While there is no requirement that an IEP include a specific transition plan for a student attending a new placement, A.L. and V.R., 2011 U.S. Dist. LEXIS 85995 (S.D.N.Y. Aug. 2, 2011). ; E.Z.-L by her parents R.L. and A.Z. v. New York City Dep’t of Educ, 763 F. Supp. 584, 598 (S.D.N.Y. 2010), an IEP should include specific services to assist the child in transitioning from one school to another. E.Z.-L . 763 F. Supp. at 598.

In A.L. and V.R. and EZ-L , supra, the respective federal district courts found that the hearing testimony by the Department of Education’s witnesses sufficiently described how each child’s transition would be facilitated. Both Courts held that the testimony alone was sufficient to establish that the school would have met the child’s transition needs. A.L. and V.R. 2011 U.S. Dist. LEXIS 85995 at 33; E.Z.-L, 763 F. Supp. at 598 Here, however, not only was there was no such detailed testimony about transition services, Mr. testified that there was no transition plan discussed at the CSE meeting and no discussion about transition other than the fact that the services on the IEP were specific for the school age setting ( : 162-163). Indeed, a review of the IEP does not indicate any long term goals or short-term objectives related to transition (DOE Ex. 3). Thus, there is nothing to even suggest how either the teacher or the would help the child transition from his private school to the District placement or, if necessary, from one teaching methodology to another.

I find that the lack of testimony or evidence regarding any type of transition services, goals or plan for the child clearly distinguishes this case on its facts from A.L. and V.R., supra. In that case the teacher of the proposed class testified in detail about how she helps students to transition and thus the Court upheld the SRO’s finding which was based on the testimony showing the teacher’s “expertise and practice” in transitioning students into new placement. A.L. and V.R., 2011 U.S. Dist. LEXIS 85995 at 11, 32-22. Here, in contrast, there was no testimony at all about how the child would be assisted in his transition. Rather, Dr. stated only that the paraprofessional would aid the child in his transition from preschool to kindergarten. However, as noted, there were no goals on the IEP and no BIP to assist either the teacher or the paraprofessional in this regard.

For the reasons indicated above I find that the IEP was deficient in this regard and amounted to a denial of FAPE. Parent Training and Counseling

The parents also argue that New York State and federal regulations required the CSE to include individualized parent training and counseling on the child’s IEP (Parents’ Ex. C at ¶ 17,; Parents’ Ex. WW at 4, 9-10, 14, 28 fn. 21). I find this claim to have merit as well.

Section 200.13 of the Commissioner’s Regulations, which relates to Educational Programs for Students with states that: “Provision shall be made for parent counseling and training as defined in section 200.1(kk) of this Part for the purposes of enabling parents to perform appropriate follow-up intervention activities at home.” 8 N.Y.C.R.R. §200.13(d). Section 200.1(kk) defines “parent counseling and training” as “assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implement of their child’s individualized education program.” 8 N.Y.C.R.R. 200.1(kk); R.K., U.S. Dist. LEXIS 32248 at 68-71.

Section 300.34(c) of the CFR enumerates the related services covered by the IDEA, and parent training and is included in those services. 34 CFR §300.34(c)(8). That statute defines parent training and counseling as:” (i) assisting parents in understanding the special needs of their child; (ii) Providing parents with information about child development; and (iii) helping parents to acquire the necessary skills that will allow them to support the implementation of their child's IEP or IFSP.” Id.

Both the SRO and the United States District Courts have held that parent training and counseling must be included in a child’s IEP. R.K. 2011 U.S. Dist. LEXIS 32248 at 69-70, Danielle G. v. New York City Dep’t of Educ., 2008 U.S. Dist. LEXIS 60192 (E.D.N.Y. August 7, 2008); Application of the Board of Education, Appeal No. 05-058; Application of the Board of Education, Appeal No. 05-051. I find that the omission of parent training and counseling on the child’s IEP violated New York regulations mandating that parents of children with autism receive these services and that the services be included on the child’s IEP. Id. Dr. testified at the hearing that parent training and counseling was not included on the IEP because it was “highly atypical” and “would be a very unique kind of service in terms of school-based support” ( : 110-111). This^[18] statement is, of course, contrary to the prevailing law as cited above.

Therefore, I find that the failure to include parent training and counseling on the IEP, in conjunction with the absence of a discussion about that service at the IEP meeting, contributed to a deprivation of FAPE in this case. Other Deficiencies in the IEP

There are several other issues raised by the parents with the respect to the IEP that warrant discussion here.

To begin, and most significantly, Dr. testified that the goals on the IEP were derived from the information given by the child’s providers and the goals on the child’s prior “service plan.” However, he testified that the goals on the IEP were not discussed that the IEP meeting ( : 93) (Parents’ Ex. C at ¶25; Parents’ Ex. WW at 13). I find that the failure to discuss the IEP goals at the meeting deprived the parents of their right to fully participate in the IEP process. Moreover, it denied the child’s current teachers the opportunity to address whether the goals on the IEP accurately reflected both the information on their progress reports and the child’s status at the time of the meeting.

In addition, Dr. testified at the hearing that he reduced the child’s speech and language related services from 3 x 60 each week to 2 x 60 each week as a matter of “professional judgment.” In making that determination he did not rely on any tests, evaluations, testimony or documents (Parents’ Ex. WW at 3). Dr. testified that he was “not necessarily in disagreement” with giving more but was concerned about the child’s ability to learn core skills if he was “pulled out” of class “too often” ( : 174176). When asked why he did not recommend additional speech outside the school day, he replied that “[a]ctually I wish I did” ( : 178). Similarly, when asked why SETSS was not discussed at the IEP meeting or put on the IEP, he replied that in hindsight, “perhaps” the child “could have been a great candidate for SETSS” ( : 164-165). I find that Dr. ’s testimony, particularly about his reduction of speech services and the omission of SETSS, indicates that he did not give serious or sufficient consideration to the documents in his possession or the testimony of all of the other participants at the CSE meeting who knew the child, in developing the IEP or in recommending a program and services that would actually meet the child’s needs and provide him with educational benefits.

In addition, the child is non-verbal but the Department of Education failed to have an assistive technology evaluation performed. When asked whether he informed the parents that they were entitled to such an evaluation he replied that he did not. When asked how the parents would know they were entitled to an assistive technology evaluation, Dr. responded that “having a really good educational attorney” would be a source of information ( : 141) (Parents’ Ex. C at ¶¶38, 54; Parents’ Ex. WW at 5). While one part of the IEP indicates that the child uses an , Dr. testified that that part of the IEP was “not as specific as it should be” ( : 135-137; DOE Ex. 3 at 20). Dr. also testified that the IEP did not recommend the use of a communication device at home because he believed it would be “too restrictive” for the student ( :138). However, since the child was non-verbal the use of a communication device at home is, in fact, essential. Finally, Dr. testified that the IEP does not include goals for toileting and he characterized the lack of those goals as an “error of omission” ( : 142-143) (Parents’ Ex. C at ¶21; Parents’ Ex. WW at 5).

I find that that the facts described above support a finding that both the IEP process and the resulting IEP were flawed and that the IEP failed to provide the child with a FAPE for the 2011-2012 school year. The Proposed Program The parents also posit that a program in a District school without extended day services was inappropriate for the child in that it was not reasonably calculated to provide the child with educational benefits. I find this claim to have merit. (Parents’ Ex. C at ¶¶ 11, 22-24, 50, 58, 63; Parents’ Ex. WW at 3-5, 7, 10, 13-14).

To begin, I note that except for Dr . , a psychologist for the Department of Education who observed the child for the Turning 5 process (during which the child had a teacher at his side), the only witnesses at the CSE meeting who knew the child personally were those from MCC, the child’s related service providers and his parents. There is no evidence or testimony to support a finding that any of those witnesses except for Dr. believed that program with a health paraprofessional would be appropriate for the child. In fact, all of the child’s progress reports recommended ABA program for the child as did the Neurodevelopmental Evaluation by , M.D., a developmental pediatrician and physiatrist who evaluated the child in October and December 2010 (DOE Ex. 4). The parents also expressed that opinion at the CSE meeting. Indeed, Dr. testified that there “wasn’t a lot of agreement” at the meeting about the placement.

While Dr. maintained that he determined the program based on his “professional judgment” in fact there is evidence that suggests otherwise. Significantly, Dr. in making the unilateral determination that a program with no extended day services was appropriate he totally disregarded the information in all of the documents and the testimony by all of the professional participants at the meeting, despite the fact that he had observed the child only once for an unspecified amount of time while the child was working with a ABA instructor. There is nothing in his observation report to refute the recommendations in all of the other documents and by all of the participants at the meeting. Moreover, and also significantly, when asked why the related service recommendations on the IEP were for individual sessions, Dr. replied that the child “wasn’t quite at a point where he could learn in a setting where there were distractions from other children” ( : 102-103). That statement clearly refutes his “professional” determination that a 6:1:1 classroom, even with a paraprofessional, would be appropriate to meet the needs of this particular child. Rather, I find that Mr. recommended the class because it is, as he testified, the “typical recommendation” for a child with autism ( : 106).

Moreover, the IEP itself specified that the child requires “ongoing specialized behavior teaching and modification methodology for that uses discrete trials to measure behavior, teaching functional skills and evaluate progress” (DOE Ex. 3 at 3). The Department of Education did not provide any testimony or evidence of how this specified need would be met at the placement recommended on the FNR. The child was assigned a health paraprofessional but there is no evidence in the record as to the qualifications or training of that paraprofessional or any health paraprofessional with respect to discrete trial methodology and thus whether the paraprofessional assigned to the student would be able to meet the mandate as specified in the IEP.

Based on the facts noted above, I find that the Department of Education failed to present any evidence to support a finding that the child would have received educational benefits from being in a program with a health paraprofessional.

The Parents’ Participation in the Placement Process and the Proposed Placement

A. Parent Participation in the Placement Process

The parents argue that they were not afforded an opportunity to meaningfully participate in the placement process. Specifically, they assert that no placement officer was at the IEP meeting and that there was “no conversation” regarding the parents’ right to speak to a placement officer. They also assert that (Parents’ Ex. C at ¶¶ 55, 57; Parents’ Ex. WW at 8-9, 14). This claim is rejected.

Here, the parents fully participated in the IEP meeting and thus were involved in the discussion about the program that was ultimately offered to the child. They also had the opportunity to express their opinions about the proposed program. While the parents argue that they were entitled to participate in selecting an appropriate school site for the child, the Second Circuit has held that parents are not entitled to participate in a specific site selection and that there is no requirement that a specific school or location be discussed at the IEP meeting or included on the IEP. T.Y. v. New York City Bd. of Educ, 584 F.3d 412, 419-420 (2d Cir. 2009). As per the FNR the parents also had the opportunity to refute the 6:1:1 recommendation for the child and reject that program as well as the proposed placement. The parents did so in letters to , the contact person on the FNR (Parents’ Ex. H; Parents’ Ex. F). The fact that the parents did not ultimately receive the type of placement they desired does not indicate that they were left out of the process.^[19]

B. The Recommended Placement

The parents assert that the District did not offer the child a FAPE for the 20112012 school year in a timely manner and that the Department of Education did not meet its burden of demonstrating that the recommended placement was appropriate to meet the child’s needs (Parents’ Ex. C at ¶62; Parents’ Ex. WW at 14-15). I find this claim to have merit.

To begin, I find that as a preschool child who was already in a 12 month program, kindergarten began for the child in September 2011 not in July 2011. See NYC Department of Education Operating Manual at p. 136; Parents’ Ex. T at 136). 20 The mandated timeframe for sending an FNR to the parents of a child transitioning to school age was June 15, 2011.^[21] When the parents did not receive a placement offer by that date they sent a letter to Nancy Funke at Region 9 asking for a placement prior to the start of the school year. They also stated in the letter that they believed the program was “inherently inappropriate” for the child and that if the Department of Education did not offer a “timely and appropriate placement” the Parents would be seeking reimbursement or Connors funding for Nexus and various related services and transportation ( : 448449; Parents’ Ex. H). The parents subsequently received the IEP which indicated it was to be implemented on September 6, 2011 (DOE Ex. 2 at 1). There is no evidence that the parents contested the implementation date or requested a placement for July 2011(see fn. 3, supra).

The FNR was dated June 24, 2011 and the child’s father testified that the parents did not receive it until July 8, 2011. The recommended placement was on (DOE Ex. 27). The FNR advised the parents that they had a right to visit the site and provided a contact number for Nancy Funke. However, when the parents called they were told that the school was not yet open for students and thus they could not visit it until it opened on September 8th.^[22] Nevertheless, the contact person told the parents that they could visit a “similar” . The parents visited that site on July 15th and were told by the principal that it “could be arranged for the child to attend” there during the summer. No formal placement recommendation was issued for the 2011-2012 school year for the child to attend that school and the parents did not receive an FNR with the . On August 5, 2011 the parents wrote a letter rejecting the and enumerated their reasons for doing so (DOE Ex. 28).

I note that the FNR advised the parents that they had a “right” to visit the (Parents’ Ex. G). However, since site that would not be open for a visit until September 8, 2011, it was not possible for the parents to exercise that right prior to the September 6, 2011 implementation date of the IEP and thus the child would not be placed at the school in a timely manner.

In addition, I find that the Department of Education did not present any evidence at the impartial hearing to support a finding that the proposed Spruce Street site would have been appropriate for the child. Rather, the Department of Education presented testimony by Ms. , the teacher of the summer school class at . However, since the IEP was not to be implemented until September 6, 2011, the FNR was for the Spruce Street site, not the and no formal offer was made for the child to attend the for July and August 2011, I find that Ms. ’s testimony was not relevant to the propriety of the proposed placement.

Therefore, I find that the Department of Education did not meet its burden of demonstrating that the placement for September 2011 would have provided the child with educational benefits. ***

In accordance with my findings on the parents’ claims as detailed above, I find that that on both procedural and substantive grounds the Department of Education failed to meet its burden of demonstrating that it provided the child with a FAPE for the 20112012 school year. None of the remaining issues raised by parents or the Department of Education would require a different conclusion. II.

Under the second criteria of the legal standard, the child's parent bears the burden of proof with regard to the appropriateness of the services that the parent obtained for the child for the current school year. N.Y. Educ. Law §4404[1][c]; M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 11-053. In order to meet that burden 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." Rowley, 458 U.S. at 188-89. Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207; Frank G., 459 F.3d at 364; R.E. and M.E., 785 F. Supp.2d at 44-45. While parents are not held as strictly to the standard of placement in the LRE as school Districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement. Rafferty v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S. v. Board of Education, 231 F.3d 96 (2d Cir. 2000). A.

I begin by stating that I am persuaded by the evidence and testimony that 1:1 ABA instruction is an appropriate methodology for the child in that despite his welldocumented deficits and issues, he appears to be making progress. However, I find that the parents have not met their burden of demonstrating that is appropriate for the child for the current school year. While, as noted above, parents are not held as strictly to the LRE as are school districts, the “restrictiveness of the unilateral placement is relevant to the discussion.” D.D-S v. Southold Union Free School District, No. 09-CV-5026, 2011 U.S. Dist LEXIS 100809, 45-48 (E.D.N.Y. Sept. 2, 2011) (Seybert, U.S.D.J.); see DOE Ex. 29 at 17). I find that based on the documents placed into evidence, is unduly restrictive for the child in that he is alone in a classroom with one adult for all but a half hour during lunch and unspecified periods of time when he is in the “ ” working on some of the gross motor issues. This situation is more akin to “home instruction,” the only difference being that it takes place in a single room outside the child’s own home. I note that while Dr. testified that the child may interact somewhat with other adults while he is on his scooter or doing another motor activity, there is no opportunity at all for the child to be around his peers. This is particularly troubling since the parents have an extensive home program in place during with the child is also alone with adults for approximately 25 hours a week.

Moreover, none of the child’s mandated related services are being provided in the school. I recognize that Dr. ’s position is that the child requires intensive ABA therapy to make progress and to develop the underlying skills necessary to begin to socialize and do academic work. And, I note that both he and the child’s parents believe that the child would be distracted by his peers and by receiving related services during the school day.

However, there is nothing in any of the reports submitted for the IEP meeting or the hearing to indicate that his ABA should be administered in such a restrictive setting. While Dr recommended extensive related services, her evaluation does not support a finding that none of the related services should be provided during the school day. Nor does it indicate that the child needs to be totally isolated from his peers during the school day. Moreover, while one of the Turning -5 Preschool Progress Reports indicates that the “shows very little interest in his peers” (DOE Ex. 7 at 3), an Educational Progress Report indicated that the child was working on making “ ” when a peer called his name. The Report also stated that the child had learned to “reciprocate greetings with peers throughout the school” by saying “Hi” and that he was working on reciprocating with peers by saying “Bye.” In addition, the report stated that the child was working on “taking turns with a peer playing a simple ball game” and that he was “working on expanding on his social skills within a group setting during a morning circle routine” (DOE Ex. 7 at 7). Since there was evidence presented at the hearing by all of the parents’ witnesses that without extensive and extended services the child would regress, it is likely that the restrictive atmosphere at will cause regression, rather than progress, in developing the child’s social skills.

Moreover, the reports explained that the child was making progress in various areas. Notably, the child was achieving this progress even though the school provided some related services throughout the day. And, various reports from the related service providers at also documented the child’s progress in those specific areas (DOE Exs. 7, 8, 10, 13, 14, 16 and 19).

For the reasons stated above I find that is not an appropriate placement for the child for the current school year.

B. The Home Program

In their Amended Demand for Due Process the parents requested reimbursement for a home program consisting, each week, of: 1) 12 hours of direct ABA; 2) three hours of supervision for the ABA program; 3) five hours of therapy; 4) four hours of occupational therapy; 5) three hours of ; and 5) four hours a month of parent training and counseling (Parents’ Ex. C at 9). At the hearing Ms. specified her request for reimbursement as follows: 1) 12 hours of direct ABA therapy; 2) three hours of supervision for the ABA program; 3) four hours of ; 4) two or four hours of occupational therapy; and 5) three and a half hours of physical therapy; 5) four hours a month of parent training and counseling and 6) four hours a month of team meetings ( 508-509, 518-519,521-522).

I find that the propriety of the home program is dependent upon the appropriateness of the school program and the related services offered by that program. Since I find that neither the Department of Education nor the parents have met their respective burdens under Prong I and Prong II, I am remanding the case to the CSE. The CSE is to reconvene, develop an IEP that takes into serious consideration all of the reports, evaluations, assessments and professional recommendations submitted about the child as well as the information provided by the professionals attending the meeting on behalf of the parents and the Department of Education. The CSE is to consider both an appropriate school placement and appropriate related services to be provided in school and/or in the home.

In the interim, the Order of Pendency issued on August 16, 2011 shall remain in effect until the new IEP is developed and provided to the parents, a new FNR is issued and the child is enrolled in the recommended placement. III.

The third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded. If I had ruled in the parents’ favor on Prong II I would have found that the evidence in this case supports a finding that the equities favor the parents.

There is no evidence or testimony to suggest that the Parents did not cooperate with the Department of Education. The Parents attended the IEP meeting as scheduled. When they had not received an FNR by June 15, 2011, the Parents wrote to Nancy Funke informing her that they had not yet received either the IEP or the FNR. At that time they also advised the CSE that absent an appropriate placement offer they would enroll the child in Nexus and ask for reimbursement or Connors funding. Immediately after receiving the FNR the Parents called the recommended school to arrange for a visit. When told that the school was not open, they called , who suggested that they visit a similar school on . Following that call they contacted the school and were given an appointment to visit until July 15, 2011 and they appeared at the school on that date. Although no formal offer was made for the child to attend the site for either the Summer or Fall of 2011, when they found the school to be inappropriate they nevertheless advised the CSE of that fact. Thus, there is nothing to suggest that they failed to cooperate with the Department of Education in any way. ***

ORDER

In light of the above findings of fact, it is hereby ordered that:

1) The CSE is to reconvene and develop an IEP that takes into serious consideration all of the reports, evaluations, assessments and professional recommendations submitted about the child as well as the information provided by the professionals attending the meeting on behalf of the parents and the Department of Education. The CSE is to consider both an appropriate school placement and appropriate related services to be provided in school and in the home.

2) The Order of Pendency issued on August 16, 2011 shall remain in effect until the new IEP is developed and provided to the parents, a new FNR is issued and the child is enrolled in the recommended placement. The Order of Pendency is as follows: 1) fifteen hours of SEIT services per week; 2) four hours of therapy per week; 3) four hours of per week; and 4) three and a half hours of per week. All of the service providers are to be paid at the DOE approved agency rate. *** Dated: February 7, 2012

RONA FEINBERG, ESQ.

Impartial Hearing Officer

RF: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

Exhibit 1 Petitioners’ Complaint dated July 8,

2011, 9 pages

Exhibit 2 Notice of IEP Meeting dated May 5,

2011, 3 pages

Exhibit 3 Department Individualized

Education Plan dated May 12, 2011,

21 pages

Exhibit 4 Agin, M.D. Neurodevelopmental

Evaluation dated October 20, 2010

and December 2, 2010, 11 pages

Exhibit 5 Department Confidential Turning–

Five Observation Evaluation dated

April 8, 2011, 4 pages

Exhibit 6 , School Version Rating Form,

undated, 3 pages

Exhibit 7 Turning-5 Preschool Progress Report undated, 7 pages

Exhibit 8 Aimee Fox, OT, Department

Turning -5 Teacher/Provider

Feedback Letter undated, 5 pages

Exhibit 9 , , Department Turning-5

Teacher/Provider Feedback Letter

undated, 3 pages

Exhibit 10 Progress Update dated April 1,

2011, 3 pages

Exhibit 11 , P.T. Progress Note dated May 3,

2011, 2 pages

Exhibit 12 , Turning-5 Preschool Progress

Report undated, 2 pages

Exhibit 13 Educational Progress Report dated

April 4, 2011, 3 pages

Exhibit 14 Turning-5 Preschool Progress

Report undated, 2 pages

Exhibit 15 Encounter Summary, dated March

24, 2011, 2 pages

Exhibit 16 Progress Update dated April 1,

2011, 3 pages

Exhibit 17 Turning-5 Related Service

Assessment Report (Speech)

undated, 2 pages

Exhibit 18 Turning-5 Related Service

Assessment Report ( ) undated, 3

pages

Exhibit 19 Progress Note dated April 13,

2011, 1 page

Exhibit 20 , M.S. CCC, Recommendations

dated May 5, 2011, 2 pages

Exhibit 21 School Version Rating Form dated

April 2010-April 2011, 4 pages

Exhibit 22 Department Brief Social History

Update dated March 1, 2011, 1 page

Exhibit 23 Department Consent for

Reevaluation dated March 1, 2011, 1

page

Exhibit 24 Letter by , Licensed Occupational

Therapist to Whom it May Concern

dated May 2, 2011, 1 page

Exhibit 25 Child Outcomes Summary Form

undated, 10 pages

Exhibit 26 Letter by to Committee on

Special Education dated June 15,

2011, 1 page

Exhibit 27 Department Final Notice of

Recommendation dated June 24,

2011, 1 page

Exhibit 28 Letter by to Committee on

Special Education dated August 5,

2011, 2 pages

Exhibit 29 The Department’s Post-Hearing

Closing Arguments dated January

23, 2012, 21 pages

Exhibit 30 Subpoena dated October 11, 2011, 3

pages

Parents:

Exhibit A Demand for Due Process and fax

confirmation dated July 8, 2011, 11

pages

Exhibit B NYC DOE Individualized Education

Plan dated September 16, 2009, 28

pages

Exhibit C Amended Demand for Due Process

and fax confirmation dated

September 14, 2011, 12 pages

Exhibit D Amended Due Process Response

NYC DOE By: Jacqueline

Richardson dated September 23,

2011, 5 pages

Exhibit E Due Process Response NYC DOE

By: Jacqueline Richardson dated

July 28, 2011, 5 pages

Exhibit F Letter to Region 9 from parents with fax confirmation dated August 5,

2011, 4 pages

Exhibit G FNY NYC DOE dated June 24,

2011, 2 pages

Exhibit H Letter to Region 9 from parents with fax confirmation dated June 15,

2011, 3 pages

Exhibit I OMITTED

Exhibit J Letter to Region 9 from parents with fax confirmation dated May 31,

2011, 4 pages

Exhibit K FNR dated May 12, 2011, 2 pages

Exhibit L Progress Report Children’s Home

Intervention Program (Chip inc.) by

M.A., B.C.B.A. dated October 8,

2011, 4 pages

Exhibit M Progress Note By: PT dated

October 4, 2011, 2 pages

Exhibit N Progress Report Nexus Language

Builders By: and , BCBA-D dated

October 4, 2011, 5 pages

Exhibit O Observation-Recommendation By:

Bernice dated September 30, 2011,

1 page

Exhibit P Progress Update By Lesley S.

Stone, M.S., CCC dated August 15,

2011, 2 pages

Exhibit Q Recommendations by , M.S.,

CCC dated May 5, 2011, 3 pages

Exhibit R Turning 5 Provider Feedback Letter

by , M.S., CCC dated April 4, 2011,

6 pages

Exhibit S Omitted

Exhibit T Omitted

Exhibit U Omitted

Exhibit V Educational Progress Report The

Manhattan Childrens Center By:

M.S. Ed. dated April 4, 2011, 4

pages

Exhibit W Turning 5 Preschool Progress Report By: , M.S. Ed. dated 2011-2012 9

pages

Exhibit X Omitted

Exhibit Y Omitted

Exhibit Z Omitted

Exhibit AA Omitted

Exhibit BB Omitted

Exhibit CC Calendar Language Builders dated

2011-2012, 2 pages

Exhibit DD Client Agreement Language

Builders dated June 8, 2011, 5 pages

Exhibit EE Resume , P.T. undated 2 pages

Exhibit FF Resume undated, 1 pages

Exhibit GG Resume , MS, CCC/SLP undated, 2

pages

Exhibit HH Resume , MS, Ed. undated, 2 pages

Exhibit II Resume undated, 4 pages

Exhibit JJ Invoices dated 2011-2012, 18 pages

Exhibit KK Use of Time Out Rooms, The

University of the State of New York

dated May 2011, 2 pages

Exhibit LL Functional Behavioral Assessments,

The University of the State of New

York dated May 2011, 2 pages

Exhibit MM Behavioral Intervention Plans, The

University of the State of New York

dated May, 2011 2 pages

Exhibit NN T.E.A.C.C.H. Methodologies

NYCDOE undated, 3 pages

Exhibit OO A.B.A. Methodologies NYCDOE

undated, 3 pages

Exhibit PP Paraprofessional Qualifications

undated 2 pages

Exhibit QQ OMITTED

Exhibit RR OMITTED

Exhibit SS Jose P. dated July 28, 1988, 69 pages

Exhibit TT Standard Operating Procedures

Manual NYC DOE undated, 305

pages

Exhibit UU Transportation Expenses undated 12

pages

Exhibit VV Progress Report dated October 14,

2011, 1 page

Exhibit WW Petitioner’s Post-Hearing Brief dated

January 23, 2012, 30 pages

Exhibit XX Subpoena dated October 11, 2011, 2

pages

Hearing Officer:

The hearing officer did not enter any evidence into the record.

---

Footnotes

[1] Dr. observed the child at his preschool during lunch time and he was working with someone for feeding ( : 157-158). Citations to pages 109-174 and 178-179 refer to Ms. ’s cross-examination of Dr. .

[3] The parents’ Amended Demand for Due Process alleges that the Department of Education failed to offer the child any appropriate placement for the summer and that the Department of Education’s IEP for July and August 2011 was “also inappropriate” (Parents’ Ex. C at ¶¶ 64, 72). However, at the hearing the parents did not introduce the “July and August” IEP and did not raise any issues with respect to such an IEP. Nor did they challenge Dr. ’s testimony that the May 12, 2011IEP was to be implemented in September, or the indication on the IEP itself that the implementation date was September 6, 2011 (DOE Ex. 3 at 1).

[4] Citations to pages 214-274 refer to Ms. ’s cross-examination of the witness.

[5] Ms. does not know the minimum requirements for being a paraprofessional. She explained that the paraprofessionals are “tested” and that most of them have Bachelor’s Degrees; she believed that Ms. had a Bachelor’s Degree ( : 248).

[8] The IEP has an implementation date of September 6, 2011 (DOE Ex. 3 at 1); See fn. 3, supra. The Parents filed their Due Process Complaint on July 8, 2011 ( : 490; Parents’ Ex. A).

[12] When any of the ABA teachers cancel a session Mr. substitutes for that person ( 407, 411; : 515- 516). Citations to pages 401-411 refer to Mr. Tillman’s cross-examination of the witness.

[14] The transcript of Ms. testimony appears to be incomplete in that there are spaces between portions of that testimony. The Impartial Hearing Officer requested a new copy of the transcript but it was not provided.

[16] Mr. that the rate “is based on travel,” and the Department of Education rate. It is difficult to park near the child’s home and parking can cost “anywhere from $20.00 to $40.00” ( : 428). was the child’s from July 2011 to September 2011. She worked with the child four hours a week at a rate of 200.00 an hour ( 517).

[18] While Ms. testified that the school has a “pretty extensive parent training program,” this “after the fact” testimony did not relieve the CSE of including this related service on the child’s IEP, See R.E. and M.E. 785 F. Supp.2d at 41-42. In any event, as explained infra, since no summer placement at Battery Place was formally offered to the child on the IEP or the FNR, any parent training program at the school is not relevant to this case.

[19] The parents’ complaint that the Department of Education violated the “Jose P Consent Order” is without merit (Parents’ Ex. C at ¶ 56; Parents’ Ex. WW at 8). The federal district court has held a child is not a member of the Jose P. class if the child was “timely evaluated and placed.” It also held that in any event, the fact that the FNR provided the name, phone number and address of a “placement officer whom [the parents] could have contacted to discuss the recommended placement or request another IEP meeting” satisfied the Jose P Consent Order’s requirements that parents be offered the opportunity to meet with a placement officer. R.E.and M.E.,785 F. Supp. at 44. In this case the Jose P Consent Order does not apply because, as noted, the FNR sent to the parents in June 2011 provided the name, address and phone number of a placement officer they could have contacted to discuss the recommended placement. See Id. See fn. 3, supra.

[21] The Department of Education issued an FNR dated May 12, 2011, the date of the IEP meeting. However, that FNR indicated only the program and related services that were recommended for the child, not a particular placement site (Parents’ Ex. K).

[22] The fact that the FNR recommended a site that would not be open until September reflects the IEP initiation date of September 6, 2011 (DOE Ex. 3 at 1).