New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: August 23, 2011

November 3, 2011

January 6, 2012

February 27, 2012

April 30, 2012

May 25, 2012 Actual Record Close Date: June 6, 2012 Hearing Officer: Christine Moore, Esq.

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

Attorney — Student

Parents

For the Board of Education: — Student

Attorney — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 3, 2011

Attorney — Student

Parent, — Student

Parent, — Student

For the Board of Education: — Student

Attorney — Student

School Psychologist (via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 6, 2012

Attorney — Student

For the Board of Education: — Student

Attorney — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 27, 201

Attorney — Student

Parents

Executive Director- — Student

For the Board of Education: — Student

Attorney — Student

Special Education Teacher- (via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 30, 2012

Attorney — Student

Parents

Applied Behavior Analysis Provider (via telephone) — Student

For the Board of Education: — Student

Attorney — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 25, 2012

Attorney — Student

Parent (via telephone) — Student

For the Board of Education: — Student

Attorney — Student

PROCEDURAL HISTORY

On August 23, 2011, November 3, 2011, January 6, 2012, February 27, 2012, April 30, 2012 and May 25, 2012, I conducted an impartial hearing at the offices of the Department of Education located at 131 Livingston Street, Brooklyn, New York pursuant to the Individual with Disabilities Education Act (“IDEA”), 20 C.F.R. 1400 et seq., regarding the special education program of . (hereinafter referred to as “the student”). A list of persons in attendance and documents received in evidence are appended hereto.

The proceeding was initiated at the request of the parents’ attorney by correspondence dated July 18, 2011 wherein it is alleged that the Department of Education (“DOE”) failed to offer the student a free and appropriate public education (“FAPE”) for the 2011/2012 school year and seeks tuition reimbursement for the (“ ”) for the 2011/2012 school year (Ex. B).1

I was appointed as hearing officer on July 19, 2011. The parties were unable to resolve the matter during the resolution period and a pre-hearing telephone conference was held on July 29, 2011 wherein a hearing date was scheduled for August 23, 2011. The sole purpose of the hearing on that date was to determine the pendency placement of the student.

By interim order dated August 25, 2011, it was ordered that until such time as this matter is withdrawn or a final decision is rendered, that the pendency placement of this student as of the date when this due process proceeding was commenced on July 18, 2011, is embodied in the Findings of Fact and Decision dated June 9, 2009 in New York City case number As such, the DOE was ordered to continue to provide for the student’s tuition at REED including the cost of transportation to and from to the student’s home until such time as this matter is withdrawn or a final decision is rendered.

Due to the availability of witnesses the hearing was scheduled to continue on October 20, 2011. The parents’ unopposed request for an adjournment of the hearing date due to the unavailability of parties to the proceeding was granted and the matter was scheduled to proceed on November 3, 2011. The hearing continued on November 3, 2011; however, due to the limited availability of court reporters and hearing rooms, the

References to Hearing Exhibits are prefaced with “Ex.” matter did not commence at the scheduled time and various witnesses were not able to adjust their schedules to the delay that resulted. Accordingly, additional hearing dates were required in order for the parties to have a full and fair opportunity to present its positions in accordance with due process.

The hearing was scheduled to continue on December 15, 2011 and January 6, 2012. On November 15, 2011, the DOE’s unopposed request for an adjournment of the December 15, 2011 hearing date due to the availability of its witness was granted. On January 5, 2012, the DOE requested an adjournment of January 6, 2012 hearing date due to the unavailability of its witness. The request for an adjournment was denied. The parties appeared on January 6, 2012 and the DOE credibly represented that she only became aware the day before that the proposed teacher from the proposed placement for the student for the 2011/2012 school year was unable to appear due to administrative and teaching duties (Tr. 92-93). 2 The request for a continuation was granted based on the fact that the proposed teacher from the proposed school was a material witness in this proceeding and the parents had no objection to an adjournment of the matter as the student’s educational interests and pendency placement were in no manner impacted by a delay occasioned by the need of the DOE for additional time to present its position at hearing in accordance with the requirements of due process. As such the matter was scheduled to continue on February 27, 2012.

On February 27, 2012, additional hearing dates were required in order for the parents to present its witnesses in accord with the requirements of due process. In response, the hearing was scheduled to continue on March 30, 2012 and, if necessary, April 11, 2012. On March 23, 2012, the parents through their attorney’s representative, requested an adjournment of those hearing dates due to medical treatments of an invasive nature being received by the mother. A telephone conference was held March 28, 2012, wherein it was agreed the matter would proceed on April 30, 2012.

On April 30, 2012, the hearing continued and the parents’ attorney credibly represented that the student’s mother was still very ill and unable to testify in person or via telephone (Tr. 244-245). The parents’ attorney further represented that the mother

References to the Hearing Transcript are prefaced with “Tr.” followed by page number. wanted to testify and indicated from the beginning of the proceeding that she had certain issues she wished to address in her testimony that the father could not address (Tr. 248). Over the objection of the DOE, the parents’ request for a continuation was granted and the hearing was scheduled to continue after the mother completed her medical treatment on May 25, 2012 (Tr. 249).

On May 25, 2012, the mother credibly testified that she was unable to appear at the previously scheduled hearing dates due to the fact that she was undergoing radiation therapy for stage one head and neck cancer (Tr. 337). Subsequent to the testimony of the student’s mother, the hearing concluded on May 25, 2012.

During the course of the proceeding, the parties unilaterally3 moved to extend the compliance date due to the availability of witnesses and extensive testimony and issues. The parties credibly represented that additional time was required for the full disclosure of additional documentary evidence and witnesses that could not be immediately secured and were necessary for a full and fair hearing in order to arrive at a decision.

In considering each and every request I weighed the cumulative impact of the relevant factors, specifically the impact on the student’s educational interest and wellbeing; the need of the parties to present their position at hearing in accordance with the requirements of due process; any financial or detrimental consequences likely to be suffered by a party in the event of a delay; if there had already been a delay in the proceeding through the actions of the parties; and if there was a compelling reason or specific showing of substantial hardship by the party requesting the extension.

As stated previously, in considering each and every request for an extension of the timeline, I fully considered the cumulative impact of the relevant factors as set forth in 8 NYCRR § 200.5(j)(5)(ii) and found that the need of the parties for additional time to prepare and present its positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Furthermore, throughout the entire pendency of this proceeding the student’s educational interest and well-being were in no form or manner impacted by any delay occasioned by the extension of the timeline. Finally, neither party at any time demonstrated any financial or other detrimental consequences that were likely to be suffered by a party in the event of a delay nor had there been a delay in the proceeding through the actions of one of the parties.

Accordingly, the requests for extensions of the compliance dates were granted due to the availability of witnesses or the extensive testimony and issues presented in this proceeding. Each request for an extension of time was responded to in writing and for each extension granted, the parties were notified in writing of the reason for the extension and the new date for the rendering of my decision.4 Each written response is documented in this administrative record collectively as hearing officer exhibit i. 5 The record close date was June 6, 2012 and the compliance date for issuing a decision is June 20, 2012.

BACKGROUND

The student is and is classified as a student with (Ex. 2). The student’s classification is not in dispute. The parent testified that the student received home based therapy five days a week on a twelve-month basis until she aged out of the program (Tr. 253). When the student aged out of , she applied to available Applied Behavioral Analysis (“ABA”) programs and was accepted to . is a not for profit school certified by the State of New Jersey and the Middle States Accreditation Group serving children ages (Tr. 184-186). The parents resided in when the student began attending and the school districts in which the parents resided placed and funded the student’s program at until the parents moved to New York City in 2008 (Tr. 253-254).

The DOE offered the student a placement for the 2008/09 school year, that the parents rejected as inappropriate and a due process hearing was initiated (Tr. 255). The parents ultimately prevailed and the DOE was ordered to reimburse the parents for tuition at including fees and expenses (Tr. 256). In subsequent years, the DOE offered the parents a settlement agreement that was accepted by the parents (Tr. 256-257).

The Committee on Special Education (“CSE”) met for its annual review of the student for the 2011/2012 school year on June 1, 2011 and developed an Individualized Education Program (“IEP”) for the student recommending a special class in a 8 NYCRR § 200.5(j)(5)(iv).

8 NYCRR § 200.5(j)(5)(i). community school with a and related services consisting of therapy (Ex 2 at 1, 14). By Final Notice of Recommendation dated June 15, 2011, the DOE offered the student a placement in District Public School (Ex. 4). By letter dated July 14, 2011, the parents notified the DOE of their intent to unilaterally place the student at the for the 2011/2012 school year as it was their belief that the DOE failed to offer the student a free appropriate public education (“FAPE”) and further that they would seek funding for this placement (Ex. C). A request for an impartial hearing was filed by letter dated July 18, 2011, on behalf of the parents, seeking reimbursement for the unilateral placement of their daughter at for the 2011/2012 school year (Ex. B).

THE DOE’S POSTION

It is the DOE’s position that the student was provided with a FAPE for the 2011/2012 school year and that the parent’s claim should be denied in its entirety (Tr. 18, 377). The DOE submits that the CSE met for the student’s annual review in a timely fashion on June 1, 2011, reviewed all of the relevant materials, created a substantively and procedurally valid IEP, and recommended an appropriate placement and class (Tr. 19, 368-373).

The DOE asserts that should I find that the DOE failed to meet it obligations under IDEA, that the parent did not met its burden of proving that the unilateral placement selected is appropriate to meet the student’s needs and that the student made progress in her placement at (Tr. 373-374). Moreover, the DOE submits that there is no objective evidence that the student required at home services at the level that she is receiving (Tr. 374).

Finally the DOE submits that the equities do not support the parents’ claim because the parents did not consider placing the student in the placement recommended by the DOE (Tr. 375).

THE PARENTS’ POSITION

It is the parents’ position that the DOE failed to offer the student a FAPE for the 2011/2012 school year and as a result seek continued funding for the placement of their daughter at during the 2011/2012 12-month school year (Tr. 366). The parent maintains that the IEP is flawed in that additional testing was not conducted and the student was not observed in her current placement (Tr. 365). The parents maintain that the goals developed by the CSE were written within the context of the program provided at and are therefore inappropriate in the context of the recommended placement (Tr. 365).

The parents assert that the recommended placement is not appropriate to meet this student’s individual needs because she requires on a consistent and constant basis (Tr. 364). The parents also maintain that the recommended placement is not appropriate in that the student would be the only girl in the class and she could not be appropriately paired with an appropriate role model in the class (Tr. 366).

The parent submits that is an appropriate placement and provides the educational services and environment that the student requires to make progress in addition to home services necessary for the student to generalize the skills she learns at (Tr. 367). Finally, the parent seeks reimbursement for the cost of transportation to and from REED (Tr. 366).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. WAS A FAPE OFFERED FOR 2011/2012 SCHOOL YEAR.

The purposes of the IDEA (20 U.S.C. §§ 1400-1482) are to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; Schaffer v. Weast, 546 US 49 [2005], Board of Education of the Hendrick Hudson Central School Disrict v. Rowley,458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when the board of education complies with the procedural requirements set forth in the IDEA, and the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies impeded the student's right to a FAPE, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). 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). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore 11, 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04- 046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087).

The CSE convened on June 1, 2011 to conduct the student’s annual review and to develop the student’s IEP for the 2011/2012 school year commencing July 14, 2011 (Ex. 2). In attendance at the meeting were the following: the parents, DOE school psychologist, DOE social worker, DOE special education teacher, also serving in capacity of district representative, DOE general education teacher, parent member, special education teacher, executive director and assistant director (Ex. 2 at 2; Ex 3).

participated at the CSE meeting in the capacity of the DOE school psychologist (Tr. 24; 26). Her testimony with regard to the composition of the CSE team is consistent with the attendance page of the IEP with the exception of the DOE social worker who attended the meeting, but is not signed in on the attendance of page of the IEP (Tr. 24-25, 55; Ex. 2 at 2). She also testified that each member of the team had the following documents at the IEP meeting: the students evaluation, progress reports, functional behavior assessments (“FBA”) prepared for the behavior intervention plan (“BIP”) (Tr. 31-32; 34, 41).

At the time of the CSE meeting the student was and (Ex. 2 at 1). The parent alleges that the IEP is flawed in that additional testing was not conducted and the DOE did not observe the student (Tr. 365). The CSE relied on evaluations primarily conducted in April 2010 for the student’s triennial review (Tr. 31-32; Ex. 9-12). There is no requirement that evaluations be conducted annually, rather the CSE is required to consider the most recent evaluation (8 NYCRR § 200.4 (f)(1)(iii)). The CSE considered the most recent evaluations and there is no evidence of record that more current evaluations were requested.

Moreover, in addition to evaluative reports conducted in April 2010, the CSE relied on reports prepared to develop the student’s BIP (presumably the FBAs dated January 6, 2011 and September 17, 2010), the student’s BIP developed by dated March 23, 2011, a fifty-seven page progress report from for the period from November 1, 2010 to February 28, 2011 and a report of the student’s present levels of academic achievement and functional performance as of April 1, 2011 (Tr. 31-34; Ex. 4-7; Ex. 13-14). The CSE also relied on the input from the parents and three participants from familiar with the student (Ex. 3; Tr. 34-35, 40-42, 211, 223, 289). As such I find that the DOE relied on sufficient evaluative data and that the CSE used a variety of assessment tools and strategies to gather relevant functional developmental and academic information about the student.

Having established that the CSE had sufficient evaluative data to formulate the student’s program, I now consider if the CSE created an IEP that accurately reflects the results of the evaluations to identify the student’s needs and, established annual goals related to those needs and provided appropriate special education services. I find that the student’s IEP accurately describes the student’s present academic performance and learning characteristics and is consistent with the findings and conclusion of evaluations and progress reports.

The IEP describes the student’s present performance pursuant to her teacher’s estimates in both reading and math, ranging from in reading, in writing skills and in math (Ex. 2 at 3; Ex. 3 at 1). The IEP states that the student is (Id.). The DOE school psychologist that attended the CSE meeting credibly testified that the performance levels were based on reports from that were comprehensive and the student’s teacher at (Tr. 34). The description of the student’s performance levels comports with the description of the student’s present levels of academic achievement dated April 1, 2011 (Ex. 14).

In the area of , the IEP states that the student is learning to initiate greetings while making eye contact, establishing eye contact before a preferred activity and is learning personal hygiene skills (Ex. 2 at 4). The BIP addresses the student’s behaviors that interfere with her learning, such as non-compliance, (Ex. 2 at 20). It recommends providing the student with when she does not display and prompting as necessary (Ex. 2 at 20). The DOE school psychologist credibly testified that the BIP was developed based on reports completed by including FBAs, progress reports, academic achievement reports and reports in addition to discussion with REED representatives at the CSE meeting (Tr. 40-41).

Based on the student’s significant cognitive, academic and communication delays in addition to social/emotional and behavioral difficulties, the CSE recommended a class in a specialized school with support services from a therapy (Ex. 2 at 1, 14).

The parents and the representatives submit that the student requires one to one instruction from individuals with specific training and a background in ABA (Ex. 3; Ex. C; Ex. Tr. 200, 265, 339). Both the parents and the representatives expressed concern that the recommended program in a class with a student to teacher ratio of with a crisis management paraprofessional without raining did not offer sufficient support and would not address the student’s needs (Ex. 3; Tr. 74).

While it is undisputed that the recommended program is not staffed exclusively by adults specifically trained and with a background in , the DOE school psychologist testified that the teachers are trained to work with children diagnosed with autism (Tr. 44). Moreover, the proposed DOE classroom teacher credibly testified that she has a Masters in general education and special education, has engaged in professional development in ABA and is currently enrolled in an ABA program to qualify as a Board Certified Behavior Analyst (“BCBA”) (Tr. 105). It is noted for the record that the lead teacher and other individuals in the student’s classroom at are not BCBAs (Tr. 219).

The DOE school psychologist testified that the DOE does not use ABA; however she also testified that the DOE is able to implement Differential Reinforcement of the Nonoccurrence of the Behavior (“DRO”), provide tokens and verbal praise consistent with the strategies outlined in the BIP (Tr. 58-59). The proposed DOE classroom teacher testified that the classroom teacher may implement ABA services based on the student’s IEP and that she automatically uses positive reinforcement, visual schedules, prompting, generalizing, video modeling, incidental teaching in the natural environment and discrete trials, often on a one to one basis (Tr. 147-149). The fact that instruction in the recommended program is not conducted using ABA principles exclusively, does not render the program inappropriate for this student where there is no evidence she will not progress in any other type of program.

State regulations require that a student with management needs that are determined to be highly intensive and requiring a high level of individualized attention, shall not exceed six students (8 NYCRR § 200.6 (h)(4)(ii)(a)). Based on the student’s , I find the recommend program was appropriate for the student and would have addressed her needs as reflected in the evaluative information before the CSE. The addition of the in a setting provides the support and structure necessary to address the student’s needs.

In addition to the special class and , the CSE recommended individual occupational therapy for the student twice a week, individual therapy once a week and therapy twice a week to address the student’s needs (Ex. 2 at 14). The related services also had corresponding goals in the student’s IEP (Ex. 2 at 10-11).

During the course of the hearing it became apparent that while parent training was discussed at the CSE meeting, it was not included in the student’s IEP (Tr. 211). State regulations mandate parent counseling or training for a student classified as autistic (8 NYCRR § 200.13 (d); 8 NYCRR § 200.1 (kk), (qq)). It is undisputed the IEP fails to provide for parent counseling and training in accord with State regulation (Ex. 2).

The failure to include parent counseling and training on an IEP does not constitute a denial FAPE where a school provided “comprehensive parent training component” that satisfied the requirements of the State regulation (M.N. v. New York City Dep’t of Educ., 700 F. Supp. 2d 356, 368 (S.D.N.Y. 2010)). Under the specific facts of this case, I find that the lack of parent counseling and training as a related service on the IEP does not rise to the level of a denial of FAPE. The proposed classroom teacher credibly testified that the parent coordinator plans ongoing workshops for the parents, that she maintains communication with the parents through a communication book in addition to parent conferences (Tr. 115).

Annual goals and short-term objectives were developed to address the student’s deficits in the areas of reading, math, writing, needs, , and activities of daily living (Ex 2 at 6-11, 15-19). The DOE school psychologist testified that the goals were discussed at the meeting with input from the representatives and that only one goal was modified (Tr. 42). The CSE meeting minutes also disclose that the goals were discussed at the meeting (Ex. 3).

The goals are consistent with the school progress reports and evaluative materials describing the student’s current levels of performance and deficits in areas of concern.

The parents submit that the annual goals and objectives were developed for the student in the context of the program offered at and are therefore inappropriate for a program not providing full time ABA intervention (Tr. 365). I am not persuaded that this renders the goals inappropriate whereas here, the goals and objectives accurately identify the student’s deficits regardless of the methodology employed to achieve the identified goals and objectives.

With regard to the placement offered, the parent testified that she visited the recommended placement the first week of July in 2011 and the children in the classroom that was recommended for her daughter were male and not at the same level of functioning as her daughter in that the students were either non verbal and below her functioning levels or far above (Tr. 338-339). The parent also testified her daughter needs to be in a program that has individualized one to one ABA in order to learn and make progress (Tr. 338).

The special education teacher assigned to the proposed class recommended for the student testified that she has worked for the DOE for thirty years and has been at P-169 for eight years (Tr. 103). Further testimony indicated that the witness has a Masters in general education and special education, is currently enrolled in an ABA program to receive her BCBA and has completed professional development in programs such as TEACCH (Tr. 105). The classroom teacher testified that the paraprofessional assigned to the class has worked with children classified with for over twenty years (Tr. 108). Further in September, an additional paraprofessional was assigned to the class (Tr.160161).

During the summer of the 2011/2012 school year, the recommended class had three students that were twelve years old (Tr. 107). Further testimony indicated that the student’s range of functioning in English language arts was from to and in mathematics from (Tr. 108-109). All of the students in the class were verbal, using phrases, but requiring prompting to initiate language (Tr. 110).

The classroom teacher testified that in September the two children that joined the class were at the (Tr. 159). The classroom teacher testified that of the five students in the class one student was and the other with , very similar to this student (Tr. 159160). The age range and academic levels of the five other children in the recommended class largely comports with that of the student, and as such she would have been grouped appropriately.

The parents submit that the student would not have been appropriately grouped in the proposed placement due to the gender composition of the class, in that all of the students in the class were male (Tr. 141, 339, 365). However, neither federal nor State regulations require that students be grouped by gender (see 200.1[ww][3][i], 200.6[a][3], [h][2], [3]; see also Doyle v. Arlington Co. Sch. Bd., 806 F. Supp. 1253, 1256 [E.D. Va. 1992]; Bales v. Clarke, 523 F. Supp. 1366, 1371 [E.D. Va. 1981]; Application of a Student with Disability, Appeal No, 10-036). The proposed classroom teacher testified that all of the staff members in the class were female and that in her prior experience with students with needs similar to this student, the students did not have the skills to relate or interact with each other with respect to gender specific goals, but rather sought assistance and guidance from the teacher or paraprofessional (Tr. 142; 167-168).

The hearing record does not establish that the gender of the students in the proposed class would have affected the student’s ability to participate in the recommended educational setting such that it rendered the placement inappropriate. State regulations also provide that the social needs of a student are not to be the sole determinant of placement (see 8 NYCRR 200.6[a][3][ii]). As indicated above, the hearing record shows that the student would have been grouped appropriately in the proposed class with respect to her social/emotional needs (Application of a Student with a Disability, Appeal No. 10036).

With regard to the program, the classroom teacher testified that a typical day begins with an instructional breakfast followed by circle time, read aloud or current events, independent work schedules, cooking or community trips, instructional lunch and extracurricular activities (Tr. 112). During independent work schedules the student is taught a skill one to one, once the student has learned the skill then he or she is provided with their TEACCH work schedule to practice the skill and this is followed by reinforcement (Tr. 113-114). If the student is assigned a paraprofessional, the classroom teacher provides specific instruction to the paraprofessional regarding the student’s program and procedures or modifications needed to address that student’s individual needs (Tr. 114-115).

In the classroom, the desktop computers and smart boards are used on a daily basis (Tr. 111). The Brigance and ABLLS assessments are conducted at the beginning of the school year and New York State alternative assessment are begun in October and completed in February (Tr. 118-119). The classroom teacher testified that related services are provided in the school with provided independently and in a group setting at lunch and and are provided one to one in a separate location (Tr. 111). The classroom teacher testified that she collaborates with the related service providers and discusses with them each student’s specific needs (Tr. 115).

The classroom teacher testified that she could met the student’s academic and needs in the proposed placement by using a reinforcement schedule to decrease the and increase more appropriate behaviors (Tr. 121). In addition, the classroom testified that to meet some of the student’s with reinforcement, provide video modeling and visual task analysis (Tr. 123-126).

Further testimony indicated the classroom teacher would use everyday objects in the context of the classroom to assist the student in meeting her goals and continue with the Edmark Functional Word Series also used at to learn to read functional signs (Tr. 122-123; Ex. 14 at 1). The classroom teacher testified that she would provide modeling and prompting where appropriate and a consistent schedule that includes repetition and routine (Tr. 126-127). To meet goals relating to time, the classroom teacher testified she would begin with discrete trials using flash cards to identify the numbers and perhaps give the student a job to tell the class when it is time to change classes (Tr. 129-130).

Based on the foregoing, I find that the DOE established that the recommended school was able to implement the student’s IEP and was capable of providing the student with the recommendations set forth in that IEP. I further find that the placement offered to the student was appropriate and would have provided the student with a meaningful educational benefit.

II. IS THE AN APPROPRIATE PLACEMENT FOR THE STUDENT

Having found that the DOE provided the student with a FAPE for the 2011/2012 school year, I need not address if the parents met its burden of proof with respect to whether the private placement at the REED is appropriate.

III. ARE THE PARENTS ENTITLED TO HOME SERVICES

The parents seek reimbursement for home based ABA consisting of six to eight hours a month in the father’s home on weekends with a BCBA and two hours a week in the mother’s home with an (Tr. 299; 301; 318: 349). Dr. , a consultant, supervises the student’s after school ABA program and goes into the home two to three times a month, to observe the student and provide training to the parent and , the (Tr. 349; 357). The parent is not seeking reimbursement for the services provided by Dr. , because it is covered by insurance with the exception of a five hundred deductible (Tr. 2474; 357).

, one the student’s ABA providers testified that she is a and as such she works with primarily with individuals with autism (Tr. 299). Ms. testified that she has been working with this student for a few years in the home and in the community to decrease and (Tr. 300-301).

Ms. testified that a big portion of her role is to provide parent training to the student’s father (Tr. 308). Further testimony indicated that the student would regress without the home services and the skills acquired at school need to be carried over in different settings, such as the home and the community (Tr. 309). The student’s mother also testified that the student requires home services to prevent regression and to maintain and generalize the skills she learns at school (Tr. 348; 358). Ms. testified that the student has made progress and that her level of independence has increased (Tr. 312).

I find that the student is entitled to services and that the services are an integral part of her program. I find the student requires therapy for two hours a week to prevent regression, reinforce the work done in school and generalize the skills acquired in school in the home and community environment. I also find the that the weekend home services in the father’s home are a necessary component of the student’s educational program, as without parent training, there would no consistency in the student’s program, which is essential to her progress (Application of a Child with a Disability, Appeal No. 07-026).

Accordingly, upon submission of proper proof of payment, the parent should be reimbursed for the home services provided by Ms. for a maximum of eight hours a month at a rate of $100 an hour and for home services provided by Ms. for two hours week.

IV. ARE THE PARENTS ENTITLED TO TRANSPORTATION COSTS

The parents seek reimbursement for transportation costs associated with transporting the student to and from (Tr. 366-367). The student’s mother testified that because the DOE did not offer transportation, she hired a driver to transport her daughter to and from REED for the 2011/2012 school year (Tr. 353). The parent testified that the driver’s salary is $750.00 a week including gas and tolls (Tr. 353). One of the parents or a grandparent accompanies the student to and from school fulfilling the role of the special transportation paraprofessional as mandated on her IEP (Tr. 352; Ex. 2 at 14).

Section 2 of Chancellor's Regulation A-801 ("Special Education Policies, Procedures and Eligibility Requirements") provides that "State Education Law mandates that the City School District provide transportation for special education children residing in New York City to and from the school they legally attend." (Chancellor's Regulation A-801[2][1]{[A]). As such I find that upon submission of proper proof of payment the parents should be reimbursed for the cost of providing transportation for the student to and from school.

ORDER

The parents’ request for tuition reimbursement for the for the 2011/2012 school year is denied.

Upon submission of proper proof of payment, the DOE is ordered to reimburse the parents for the home ABA services provided by for a maximum of eight hours a month at a rate of $100 an hour and for ABA home services provided by for two hours week for the 2011/2012 school year.

Upon submission of proper proof of payment, the DOE is further ordered to reimburse the parents for the cost of providing transportation for the student to and from during the 2011/2012 school year. Dated: June 19, 2012

_____________________________

CHRISTINE MOORE, ESQ.

Impartial Hearing Officer

CM:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Officer’s Decision, 6/9/09, 15 pp. B Impartial Hearing Request, 7/18/11, 2 pp. C Rejection Letter from Parent, 7/14/11, 2 pp D Special Education Service Delivery report, Undated, 1 p. E 2009/10 Progress report and overviews, Undated, 2 pp. F Program description, Undated, 5 pp. G Tuition Agreement, 6/2011, 7 pp.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 7/18/11, 2 pp. 2 IEP, 6/1/11, 20 pp. 3 CSE Meeting Minutes, 6/1/11, 2 pp.

4. Final Notice of Recommendation, 6/15/11, 1p. 5 , 1/6/11, 2 pp. 6 , 9/17/10, 1 p. 7 , 3/23/11, 3 pp. 8 Notice of IEP Meeting, 5/17/11, 1 p. 9 Function Evaluation, 4/24/10, 2 pp. 10 Update Evaluation, 4/19/10, 2 pp. 11 Evaluation, 5/28/10, 2 pp. 12 Social History Update, 4/19/10, 2 pp. 13 Progress Report, 11/1/10-2/28/11, 57 pp. 14 Present Level of Academic Achievement and Functional Performance,

4/1/11, 4 pp.

3 It is noted for the record, that during the course of the hearing I would at times state the compliance date and inquire of the parties, something to the effect of, “is there a joint motion to extend the timelines”. This was only intended to suggest that this might be an appropriate time in the hearing record to interpose the previously requested motion to extend the timelines to accommodate additional hearing dates or briefs as opposed to concluding the hearing at that point. At no time did I initiate or encourage either or both parties to request an extension of the deadline.