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 24, 2011

November 3, 2011

November 9, 2011

November 15, 2011

January 10, 2012

January 12, 2012

Actual Record Close Date: February 23, 2012 Hearing Officer: Linda Agoston, Esq.

Corrected

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

Attorney — Student

Attorney (via telephone) — DOE

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

Attorney — Student

Attorney — DOE

School Psychologist (via telephone) — DOE

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

Attorney — Student

Father — Student

Attorney — DOE

Teacher (via telephone) — DOE

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

Attorney — Student

Father — Student

Administrative Director- (via telephone) — Student

Principal-, (via telephone) — Student

Attorney — DOE

Unit Coordinator (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 10, 2012

Attorney — Student

Father — Student

Home Therapist (via telephone) — Student

School Therapist (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 12, 2012

Attorney — Student

Father, — Student

Mother — Student

Supervisor (via telephone) — Student

Attorney — DOE

On July 20, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415(f)(3) in the matter of (hereinafter ). The hearing was convened at the request of the parents that was received on July 19, 2011 (Exh. A). On August 19, 2011, I scheduled the hearing for August 24, 2011. The hearing was requested by the parents to challenge the May 31, 2011 review and the recommendation of the Committee on Special Education (CSE) for the 2011-2012 school year and to challenge the program and placement and to obtain funding for a unilateral placement at ) School from September 2011 through June 2012 and the services of the and related service providers. (Exh. A at 8) On August 24, 2010, Parents’ counsel made a motion requesting clarification of the child’s pendency placement during these proceedings. She stated that should receive the services pursuant to the Findings of Fact and Decision dated July 22, 2009 of ( ) by a special education itinerate teacher (SEIT) for 30 hours per week and related services of individual ( 3 times per week for 30 minutes per session; individual speech and language therapy (SLT) 5 times per week for 60 minutes per session. (Tr. at 5) The district’s counsel did not object to the motion. (Tr. at 5) On September 16, 2011, I issued a Pendency Order for ABA/SEIT for 30 hours per week; 3 times per week for 30 minutes per session; individual SLT 5 times per week for 60 minutes per session.

Hearings were held on August 24, 2011, November 3, 2011, November 9, 2011, November 15, 2011, January 10, 2012 and January 12, 2012. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present its positions in accordance with the requirements of due process was greater than any detrimental delay in the resolution of the matter. Accordingly the requests for extensions of the compliance dates were granted. The current record close date is February 23, 2012 and the compliance date for issuing a decision is March 8, 2012.

The parents request reimbursement/direct payment for their costs as follows: (a) tuition and costs for the in the amount of $59,000 broken down as $35,000 for the cost of tuition and $24,000 for the cost of the paraprofessional (Tr. at 244;Exh. P, N); (b) 30 hours per week of ABA/SEIT; (c) 5 hours per week of ; (d) 3 sessions of 30 minutes per session per week of at school. (Tr. at 499) The parents indicated that they have paid $ 10,000 and are seeking $49,000 in direct payment (Tr. at 499:Exh. M). The parents maintained at the last day of hearing that they were not seeking tuition and costs summer services in July and August 2011 including the tuition for the , 30 hours support at the and for 3 sessions per week for 30 minutes per session. The parents confirmed they were merely seeking tuition reimbursement/direct payment for the and the paraprofessional in the amount of $59,000 per the contract at the . The parents further confirmed they were seeking 5 hours of SLT per week in the form of a related service authorization (RSA) and 3 sessions of 30 minutes per session of per week in the form of a RSA. The parents also confirmed they were not seeking transportation. (Tr. at 489) The parents submitted proof of payment for the of a check dated September 1, 2011 in the amount of 10,000.00 (Exh. M). The parents submitted a Letter of Agreement dated September 1, 2011 indicted the tuition for the was $35,000 and the additional charge was $ 24, 000 (Exh. N).

BACKGROUND

( ) and by Dr. , developmental pediatrician. (Exh. D at 1) He was evaluated by by , Licensed , on March 15, 2011 and March 29, 2011. (Id.) Dr. noted that received SEIT services for 2 hours per week at the age of 2 and 5 hours per week at the age of 3. (Id.) Dr. Soffer further noted that was enrolled in the , a private education and remained there until the 2010-2011 school year when he was enrolled in and received SEIT and . (Id.) Dr. assessed ’s general cognitive ability by the –Third Edition and found had a full scale intelligence score which was in the (Exh. D at 2). His verbal comprehension score was in the , working memory was in the , and performance and processing scores were in the extremely low range (Id.). Dr. assessed s adaptive functioning by asking his mother to respond to questions on the -Second Edition. The results indicated that his adaptive skills were low for his age. ’s ( ), , skills were all in the (Exh. D at 3).

On February 9, 2011, when , he observed at the , School Psychologist. Ms. observed , a special education school for and noted that ’s class had a staffing ratio of 6 boys, 1 teacher and 1 assistant in the classroom as well as individual paraprofessionals. She further noted that were conducted in the morning and English studies were conducted in the afternoon (Exh. 2 at 1). She reported that had ; however, he participated in the morning class. She noted he . She reported that his teacher related to her that had and needed to (Exh. 2 at 2).

On May 27, 2011, the Special Education progress report for was completed (Exh. F). The progress report indicated that was and had been diagnosed with ) and presented with , and (Exh. F at 1). The reporter noted that attended a centerbased program with a ratio of students to staff and was utilized across all his educational settings (Id.). The reporter further noted that an trained therapist facilitated his education and the same skill set was taught across different settings to aid generalization (Id.).

The CSE developed an Individualized Education Program (IEP) on May 31, 2011 and classified as and recommended a 12-month program in a specialized school in a special class with a staffing ratio of or special education teacher and 1 class paraprofessional (Exh. H at 1). The May 31, 2011, IEP mandated continuing related services of individual times per week for ; individual SLT 3 times per week for 30 minutes per session and initiated SLT once a week for 30 minutes in a group of 2 (Exh. H at 16). On June 9, 2011, a Final Notice of Recommendation (FNR) was for to attend , NY (Exh. I). The FNR recommended a placement in a specialized class with a staffing ratio of and related services of (Id.).

THE POSITION OF THE PARTIES

The district’s counsel maintained that District 21’s CSE met on May 31, 2011, 2010 with a duly constituted team and developed and an appropriate IEP for based on adequate and appropriate evaluative material and properly recommended a placement for the 2011-2012 school year (IHO Exh. I at 4). The parents disagreed with the district’s program and placement and request tuition reimbursement for Beacon School for the 2011-2012 school year and prospective payment for the therapist and paraprofessional for the 2011-2012 school year as they maintain that ’s IEP was not prepared in accordance with the procedural and substantive requirements of Federal and State Regulations and the with the paraprofessional and therapist is an appropriate placement. The parents asserted that the following deficits: (1) the DOE program was not “reasonably calculated” to provide with a free appropriate public education (FAPE);

(2) the DOE failed to timely assess ’s present levels of performance; (3) the DOE failed to timely provide ’s evaluations to his parents and (4) failed to conduct a triennial assessment; (5) DOE failed to provide for individualized parent counseling and training; (6) failed to develop an appropriate ) or ) despite ; (7) the CSE team was not duly constituted; (8) the DOE failed to communicate with his teachers and related service provided; (9) the DOE failed to consider the private evaluations, to document his progress and (10) the DOE failed to develop an IEP that included meaningful participation (Exh. A at11).

THE DISTRICT’S CASE

The District’s case was presented in the testimony of , School , , Teacher, and , Unit Coordinator. Ms. a holder of a Master’s degree in employed by CSE Region for 5 years, testified she was present for the May 31, 2011 IEP. (Tr. at 48) She explained the classroom observation was conducted by , a school She stated that she prepared the FBA (Exh. 3) during the May 31, 2011 IEP meeting based on information contained in classroom observation (Exh. 5), the reports from his teachers and principal and the evaluation (Exh. 4) and the handwritten (Exh. 5;Tr. at 51). She recalled that the OT and SLT providers submitted goals for their fields to be included in the May 31, 2011 IEP (Tr. at 52). She further recalled that staffing ratio for last year was or 6 students and 1 teacher and 1 assistant (Tr. at 57). She noted the participants at the May 31, 2011 meeting included herself, a social worker, a special education teacher, a parent member and staff from the that participated by telephone. She further noted that she asked ’s religious teacher and principals questions regarding his present levels of performance. She recollected that the principal of the was very familiar with ’s academic and and presented that team with a lot of information regarding his functioning levels (Tr. at 59). She further recollected that functioned on a and and a level in writing, math skills, word computation and word problems (Tr. at 61). She noted that ’s , he had significant focusing difficulties and needed constant redirection as confirmed by the providers’ reports (Id.).

Ms. stated that the was developed by asking the questions regarding his behavior and determined the antecedents and the consequences of his behaviors (Tr. at 63). She further stated that the staff at the provided the information used in the . She noted that included , , the would redirect him (Tr. at 64). She further noted that in her clinical opinion his and . (Id.) She stated that the team considered his and , his strengths and weaknesses and worked on for (Tr. at 67). She maintained that the IEP team projected the skills that could achieve in a year. She further maintained that the goals for the related service providers were reviewed and discussed with the team and the were increased (Tr. at 68). She noted that CSE recommended continuing the same type of program in a special class with a special education program with a staffing ratio of with related services of for 12 months of education (Tr. at70). She further noted that a 12month program was recommended due to ’s significant delays (Tr. at 71). She maintained that his small class was highly structured and highly supervised and that would have received immediate attention to address his (Tr. at 72).

On cross Ms. S acknowledged that she never met (Tr. at 75). She stated there Ms. indicated in her observation that ’s behavior was consistent with a diagnosis of and in a small class she did not see significant (Tr. at 78). She further acknowledged that he had difficulty with transitions, yet there was no transition plan developed to transition from his current school to the DOE placement. However, she noted that ’s parent stated she was happy with the and would keep him there (Tr. at 80-83). She stated that no copies of the draft of the IEP discussed during the May 31, 2011 IEP meeting were provided to the members who participated by telephone (Tr. at 84). She further stated that she was trained in as part of her training (Tr. at 96). She did not recall asking the parents or the staff if they had any data regarding ’s behavior (Tr. at 108). She recalled there was no discussion of extended day services or the services of individual paraprofessionals (Tr. at 112-113). She acknowledged that there was no parent training or counseling on the May 31, 2011 IEP (Tr. at 115). She maintained that parent training and counseling was not required to be part of the IEP (Id.).

Ms. maintained that SEIT services or additional special education teacher support services (SETSS) were not considered for because his special class was more intensive and restrictive than SETSS alone and provide much more academic, social and emotional support (Tr. 118). She further maintained that the May 31, 2011 IEP contained specific strategies and recommendations for his academic, emotional and social needs (Tr. at 120).

, a Master’s degree in special education teacher employed by DOE at for a past 10 years, testified that she was licensed and certified as a special education (Tr. at 144-146). She stated that for the 2011-2012 school year, she had 5 students aged on July 1, 2011 (Tr. at 147). She stated that there was a classroom paraprofessional and an individual crisis management paraprofessional for a student in her class (Tr. at 148). She explained that staff rotation was important in her class to ensure that students work across all environments (Tr. at 152;209). She further explained that she and the class paraprofessional could provide individual instruction and small group instruction She noted that discrete time for occurred when adaptive behavior was taught (Id.). She further noted that there was a data collection sheet for mastered programs and progress was graphed on the data collection sheets (Tr. at 153). She maintained that in addition to discrete trial and a to teaching were utilized (Tr. at 156-157). She noted there was collaboration with other classroom teachers as well as the related service providers. She related the students were assessed using the . She further related that she paired her students for small group instruction according to their levels in reading and math and then she taught her entire class, (Tr. at 162) and she paired her students (Tr. at 165). She maintained that her 6 student had art, gym and music with cluster teachers, who were special education teachers (Tr. at 163). She noted that there was contact between the school and home by a communication book (Tr. at 167). She further noted that she was able to meet the sensory needs of her students by first assessing the students and then finding the trigger for a and reinforce (Tr. at 169). She described sensory items were and there were (Tr. at 177). She explained that a summary form was sent to the parents to find the child’s (Tr. at 170). She maintained that had attended her class he would have received . She described how she would address the or a by supervising the children and bringing the related service providers into the room (Tr. at 171). She reviewed the May 31, 2011 IEP goals, academic management needs for and opined that she would have been able to meet his needs and he would have been appropriately placed in her class in July 2011. She noted that she had 1 student on ’s level in reading and math (Tr. at 174-175)

On cross Ms. stated that her Master’s degree in special education comprised all special education students including and she attended many professional developments on autism (Tr. at 187). She further stated that the attended professional developments on . She explained that her understanding of a meant a behavior must be targeted and data must be collected regarding the behavior and the consequence of the behavior. She explained that the reason for the behavior must be identified to determine if the behavior was driven by the need for or was work avoidance and then the cause of the behavior was determined. She further explained that after the behavior was charted, then a plan would be developed to address the behavior and only were used (Tr. at 191;198). She explained that she would use edibles or something from home that the parent indicated liked and she would give him frequent breaks (Tr. at 199). She noted there were 2 computers in the classroom to be used by the students and that would have been in the class (Tr. at 204). She could not explain why the FNR indicated that the assigned class was Y-17 and her class was Y-13 (Id.). She maintained that she used the TEACCH methodology after some of her students were able to master skills independently (Tr. at 213). She stated that the could be used with because he had mastered some skills and TEACCH could improve on his skills (Tr. at 215). She further stated that there were no mainstreaming opportunities with general education children during the summer program (Tr. at 225). She explained that could have been paired with a student on a level (Tr. at 228).

Ms. , Unit Coordinator at testified that she was responsible for coordinating which classes students are placed in (Tr. at 143). She stated that because was born in 2003, he would have been placed in Ms. ’s class referred to as Y-13 and that Y-17 did not exist (Tr. at 151). She described that parent training and workshops were offered to the parents on various topics such as (Tr. at 153).

THE PARENTS’ CASE

, Administrative Director of the ABA Programs at , , Principal of the School, , Home ABA Therapist, , School ABA Therapist, , ABA Supervisor and the parents testified in support of the parents’ claim for reimbursement for the and the paraprofessional at the and the cost of providers.

, a holder of a Master’s degree in special education, licensed and certified in NYS to teacher children who are bilingual and employed by for 12 years, testified that had been in her program since (Tr. at 172;187). She opined that the ABA staff working with provided appropriate services (Tr. at 183). She stated that Mr. worked on academic goals and his other providers worked on social skills and social understanding (Tr. at 185). She noted her entire staff had NYS certifications and possessed a Master’s degree in special education (Tr. at 187).

On cross Ms. stated that provided services for aged 2 to 9 (Tr. at 188). She further stated that had received services from for the past 4 years (Tr. at 193). She maintained that did not have a religious portion and that his therapists address his needs at home and in the classroom for 13 hours per week (Tr. at 195;197). She acknowledged that she could not describe exactly what her did to benefit in his education program at the ; but maintained that several therapist ensure generalization of skills across several locations (Tr. at 204; 207).

, NYS certified in special education and general education employed by the School for 11 years, testified that was placed in a with a staffing ratio of and a teacher and a teacher’s aide for the 2011-2012 school year (Tr. at 215). She noted that both his and his academic teachers were NYS certified special education teachers (Tr. at 216;218). She stated that could decode words on a third grade level, but his comprehension was on a first grade level (Tr. at 220). She noted that his classroom used a token economy point system with and and the points were tallied at the end of the week for prize (Tr. at 226-228). She explained that the used for (Tr. at 229). She further explained that had an individual paraprofessional assigned to him in class (Tr. at 231). She indicated that despite the fact that did not receive a , he was receiving from a NYS certified and licented and from 2 certified and licensed SLT providers (Tr. at 235). She opined that was appropriately placed in his class and that progress towards goals was assessed by and (Tr. at 240). She further opined that progress was slow because he was very distracted (Tr. at 242). She stated that based on her conversations with his teachers and related service providers that was appropriately placed at the Beacon School for the 2011-2012 school year (Tr. at 245).

On cross Ms. stated that the tuition at the was $35,000 and $24, 000 was the cost of ’s paraprofessional (Tr. at 247;253). She further stated that the cost of the OT and SLT providers was not included in the tuition, but their cost would be covered by the RSA (Tr. at 248). She related that required constant prompting to remain focused (Tr. at 256). She further related that the entire class was taught as a group, but there was small group instruction for reading, math and writing (Tr. at 263). She explained the children in ’s class had classifications of and as the child was diagnosed with (Tr. at 276). She explained that attended the for the 2010-2011 school year and that the was a 10-month program (Tr. at 278). She further explained that there was school on September 2011 and he continued to have focusing problems (Tr. at 284). She recollected that was in the “E” level in reading for the 2010-2011 school year and was still on the “E” level in the reading (Tr. at 200). She noted that there was no formalized testing except the and that ’s math levels were based on teacher observation (Tr. at 284).

, NYS certified in special education teacher with a Master’s degree in special education employed by as a special education teacher from 2008 to 2011 (Tr. at 317). He testified that he was taught children in the program (Tr. at 319). He stated that he was employed by and provided services to 4 times per week at home for a total of 6 hours per week since September 2011(Tr. at 320; 377). He described ’s deficits were in reasoning, thinking skills and comprehension, but math was a strength (Tr. at 322-324). He noted that presented with such as if he and . He described how he addressed ’s . He described his system was if completed a task without any , he received an award. He opined that progressed adequately with because was able to attend a task for a longer period of time without (Tr. at 326-327; 344; 357). He noted that was very, very (Tr. at 328). He explained that he utilized during his sessions with under the supervision of Ms. , the lead therapist and broke down tasks to a more concrete level (Tr. at 330). He opined that because had so in his reasoning skills was helpful (Tr. at 331). He noted that it was important to generalize skills from school to home and he worked with ’s parents to carry over skills (Tr. at 336;348).

On cross Mr. Fishman stated that Ms. , ’s therapist at the was his contact at the , and he used the token economy system to address ’s behavior (Tr. at 352-354). He stated that he did not know if ’s other therapists, Ms. or Ms used the token economy system (Tr. at 357). He further stated that he conducted an informal assessment of to determine the antecedent and the consequences of the behavior over the first week of his work with in September 2011 (Tr. at 360;362). He acknowledged that he did not conduct a formal assessment (Tr. at 363). He noted that he was using 3 programs to improve ’s reasoning skills (Tr. at 365). He stated that ’s level of comprehension was less than grade level (Tr. at 370). He acknowledged that while he never received formal training in ABA, he was coached and trained by his supervisors (Tr. at 382). He stated that he communicated with Ms. biweekly to understand the school program (Tr. at 392).

, NYS certified as a special education teacher with a Master’s degree in special education employed by for 4 years, testified that she had taught approximately 20 autistic students (Tr. at 399). She stated that she had worked with for 4 years and she provided services to at the for 3 hours every Friday (Tr. at 400). She described ’s strength was his ability to repeat a fact, but he did not comprehend that fact (Tr. at 402). She described his weaknesses included his , his , his and (Id.). She noted that she addressed his deficits by asking his questions regarding the teacher and his peers (Tr. at 405). She stated that the used the (Tr. at 407). She further stated that she prompted to answer questions, to raise his hand and to look at the teacher (Tr. at 409). She explained that he had very hard time organization his supplies and moving his desk (Tr. at 410). She further explained that she did not use discrete trial, but worked with him to generalize skills (Tr. at 412). She opined that the was an appropriate program and he required the SEIT services to be a viable member of the class (Tr. at 413; 415).

On cross Ms. stated that she was not able to fade back during recess and if she were not present, then would walk around by himself and talk to himself (Tr. at 419). She opined that as she worked only on Friday, his teacher or the teacher assistant would have to redirect him during recess on Monday through Thursday (Tr. at 419). She stated that functioning at a lower level socially than his classmate (Tr. at 425). She further stated that she was not sure how the could meet ’s social needs without her (Tr. at 430). She related that she was ’s in the in the 2010-2011 school year and she observed regression over the summer of 2011(Tr. at 436). She further related that required her individual intervention to redirect him and she was not sure how ’s needs could be met with the classroom staff (Tr. at 444).

, NYS certified as a special education teacher with a Master’s degree in special education employed by for 12 years ABA Supervisor, testified that she was the supervisor and lead teacher for the ABA providers (Tr. at 548). She stated that she structured programs to work on his communication and reasoning skills (Tr. at 550). She opined that he required

15 to 20 hours of ABA based on the problems the was experiencing with (Tr. at 553).

On cross Ms. stated that she was not able to fade out from her work with because the could not address his behavior completely without her presence (Tr. at 568).

The father testified that he was not aware that parent training and counseling was a related service (Tr. at 471). He stated that when he received the FNR (Exh. 7) that indicated ’s proposed class was Y-17, he visited proposed placement and no person knew where class Y-17 was located (Tr. at 482). He stated that there was no listed on ’s IEP and he did not feel that would be able to make educational progress without . He stated that he wrote a letter on June 29, 2011 (Exh. J) after he observed the proposed class at (Tr. at 480). He recalled staff at told him that students in the proposed class were grouped based on age not on performance level (Tr. at 481). He further recalled that he decided to keep in the with therapists from (Tr. at 484).

On cross the father stated that he believed that the staff of the and provided accurate information regarding ’s performance (Tr. at 533).

The mother testified that her son , and (Tr. at 543). She opined that progressed during at the and that received 4 times per week and 3 times per week at the (Tr. at 546).

FINDINGS OF FACT AND CONCLUSION OF LAW

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). However, the New York legislature places on the district to establish the first prong. N.Y. EDUC. LAW Art. § 4404(c)(1). The district must establish the first prong one, that it appropriately ascertained the child's educational needs and prepared an IEP in accordance with the procedural and substantive requirements of Federal and State regulations (34 CFR 300.343-346, 8 NYCRR 200.3, 200.4 and 200.5). The burden of proof, including the burden of persuasion and burden of production, in … [the] impartial hearing, except that a parent … seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of [the unilateral] placement. N.Y. EDUC. LAW Art. § 4404(c)(1). Therefore, the burden of proof on the second prong rests with the Parents.

In Board of Education of the Hendrick Hudson Central School District, Westchester Cty v. Rowley, 458 U.S. 176 (1982) [hereinafter Rowley],. the Court said that, in cases brought under IDEA, the courts whether “the individualized program developed through the Act’s [i.e., the IDEA’s] procedures [is] reasonably calculated to allow the child to receive educational benefits ( Rowley, 458 U.S. at 198). The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The recommended program is the least restrictive environment for the child. In the Second Circuit Court of Appeal, in D.F. Ex. Rel. N.F. v. Ramapo Cent. School Dist., 430 F.3d 595 (2nd Cir. 2005), the Court held that, for an IEP to meet the Rowley test, “it must be likely to produce progress, not regression” and must provide for “more than trivial advancement.” (430 F.3d at 598) [internal citations and quotation marks omitted]. In an earlier case, the Second Circuit observed that the IDEA is not intended to “secure the best education money can buy” or “guarantee any particular level of education.” [(Walczak v. Florida Union Free Sch. Dist.,142 F.3d 119 (2d Cir. 1998)] (internal citations and quotation marks omitted).

The parents asserted many procedural flaws in the May 31, 2011 IEP: there was no transition plan; no transition goals; the FBA was not appropriate as it was not based on multiple sources of data; the CSE failed to assess behaviors that interfered with or impedes a child’s learning deprived of FAPE; the parents were not involved in the process of placement making decision; the CSE deprived of FAPE by failing to expressly provide for parent counseling and training as a related service (IHO Exh. II at 6-9,14).

The SRO considered the type of procedural flaw which would result in a denial of FAPE. (Application of the New York City Dept. of Educ., Appeal No. 08-037). The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE. The hearing officer “may find a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; (b) significantly impeded the parent’ opportunity to participate in the decision making process regarding the provision of FAPE for the student; or (c) caused a deprivation of educational benefits.”(Matrejek v. Brewster Cent. School Dist., 471 F.Supp.2d 415, 419 [S.D.N.Y. 2007]) 20 U.S.C. § 1415(f)(3)(E); 34 C.F.R. § 300.513(a)(2).

The district’s attorney asserted that the DOE met the procedural and substantive obligations under IDEA (IHO Exh. I at 3). The district’s attorney argued that if there were procedural violations, the violations did not rise to the level of a deprivation of FAPE because none of the procedural concerns raised in the hearing request either individually or together, (a) impeded the student’s right to FAPE; (b) significantly impeded the parent’ opportunity to participate in the decision making process regarding the provision of FAPE for the student; or (c) caused a deprivation of educational benefits (IHO I at 4). I agree the district’s attorney further asserted that ’s teacher, principal, parent were present at the May 31, 2011 IEP meeting in addition to the psychologist, special education teacher, social worker and parent member (IHO Exh. I at 5).

In order to be procedurally correct the CSE which met on May 31, 2011 would have to have been constituted in full accord with the provisions of the Education Law Section 4402, as well as the provisions of the regulations of the Commissioner of Education of the State of New York Part 200.3(a). Pursuant to 8 NYCRR 200.3(a)(1)(ii) a regular education teacher must participate in the CSE meeting when the student is or may be participating in the regular education environment. There was no dispute that would not be placed in the regular education environment. I find that the May 31, 2011 IEP meeting had the required members and was duly constituted.

The parents alleged the DOE failed to timely assess ’s present levels of performance and failed to timely provide ’s evaluations to his parents and failed to properly evaluate and failed conduct a triennial assessment. The parents alleged the DOE failed to consider the private evaluations, to (Exh. A at11). The parents’ attorney argued that the DOE failed to conduct any evaluations or assessments there were no transitional goals (IHO Exh. II at 8). The district’s attorney maintained that contrary to the parents’ contention that CSE had adequate and appropriate evaluative material to make an appropriate educational program. I find the CSE had the classroom observation, a psychological evaluation, a and report and goal (Exhs.2-5) I find that the CSE had timely assessed ’s present levels of performance and had adequate and appropriate evaluative material to make an appropriate educational program.

I find testimony adduced at the hearing established that the questioned ’s then current teacher and principal as well as the psychological evaluation to determine present levels of performance. I credit her testimony. I further find there were was insufficient evidence provided at the hearing to determine whether a triennial evaluation was due; however, I find the May 31, 2011 annual review had the required evaluative material and the parents failed to specify how the listed evaluative material (Exh. 2-5) failed to meet the requirement of 8 N.Y.C.R.R. 200.3(b). Regarding the allegation that the DOE failed to provide ’s evaluations to his parents, I note there was no evidence adduced at the hearing to establish this allegation.

The parents’ attorney argued there were no transitional goals (IHO II at 8). I find credible testimony of the (Exh. 2 to 5) considered by the CSE team to develop goals. I find credible the testimony that the goals were derived from the reports of ’s then current teacher and principal and related service providers and were reviewed and discussed with all the members at the CSE review (Tr. at 52). I find the goals were specific to the student and based upon the all the evaluations reviewed by the CSE team. I find a transition plan is not required on an IEP and the absence in the IEP of a written transition plan for moving to a new placement is not a basis for concluding that a FAPE has not been provided. See, A.L. and V.R. v. New York City Department of Education, 2011 U.S. Dist. LEXIS 85995.

The parents assert that a FAPE was denied because the actual school location was not discussed with the parents at the review and not specified on the IEP (IHO Exh. II at 13). I find the lack of a school placement on the IEP does not constitute a denial of a FAPE. The district’s attorney argued that the district met its legal obligation to provide a placement in this case when it issued an FNR recommending a public school. (IHO Exh. I at 11).“See T.Y. v. N.Y. City Bd. of Educ., 584 F.3d 412, 419-420 (2d Cir. 2009)” (Id.). I find that here the DOE issued an FNR on June 8, 2011, prior to the commencement of the school year. I further find that the proposed school with a staffing ratio of in a 12 month school year with related services was appropriate. Further, I note that the district’s attorney argued that in M.S. v. New York City Dep’t of Educ., 2010 U.S. Dist. LEXIS 87682 (E.D.N.Y. 2010), the “court explained that Jose P. cannot be applied to students who were both timely evaluated and timely offered a placement” (IHO Exh. I at 11). I find that the consent order under Jose P. is not relevant here where the parents are seeking funding for a private placement after a timely review and a timely offer of placement which was rejected by the parents.

The parents’ attorney argued that the proposed class was not appropriate as the father testified that the classes were (IHO Exh. II at 14). I find that pursuant to state law, students with disabilities shall be grouped by similarity of the individual needs according to 4 criteria: academics, social development, physical development and management needs. (8 N.Y.C.R.R. 200.6(a)[3]) I find that the testimony adduced at the hearing satisfied these criteria as I credit the proposed teacher’s testimony that would have paired with a and I credit the testimony of ’s providers and principal that he was at a in reading comprehension. The district’s attorney further argued that the SRO held that students were appropriately grouped in classroom when the range of achievement levels in reading and math would exceed 3 year in Application of the Dep’t of Educ., Appeal No. 08-018 (IHO Exh. I at 7). I find testimony adduced at the hearing established that placed could have been placed with a peer with similar academic needs, social development and management needs as described by the district’s witness.

The parents’ attorney asserted that the DOE was obligated under 8 N.Y.C.R.R. 200.13 to provide parents with individualized and training as a related service on ’s May 31, 2011 IEP (IHO Exh. II at 14). I find the parent counseling and training is required. However, I cannot find the May 31, 2011 IEP was inadequate because it omitted parent training and counseling and the lack of parent training and counseling on the IEP constitutes a denial of a FAPE. In Application of the New York City Dept. of Educ., Appeal 10-036, the SRO held that the lack of parent training and counseling listed on the IEP did not amount to a deprivation of FAPE. I credit the testimony of the proposed classroom teacher who described that parent training and workshops were offered to the parents on various topics such as OT, SLT (Tr. at 153). I am not persuaded by the testimony of the parent that he was not aware that parent training and counseling would have been provided (Tr. at 159). Accordingly, I find the failure to included parent counseling and training as a related service on ’s May 31, 2011 IEP was not a denial of a FAPE. See E.Z-L. v. N.Y. City Dep’t of Educ., 201 U.S. Dist. LEXIS 6335.

The parent’s attorney further asserted TEACCH methodology was not appropriate for (IHO Exh. II at , 9,11). I credit the testimony of the proposed classroom teacher who described the TEACCH methodology. I credit her testimony that discrete trial ABA methodology, the cooperative learning methodology and a multi-sensory approach to teaching were all utilized (Tr. at 156-157). The district’s attorney argued that the law did not contemplate a specific methodology (IHO Exh. I at 8) and I find that the parents failed to establish that TEACCH, the and a were not appropriate for . I further find the record was replete with examples of ’s with only services.

The parents’ attorney asserted that the district failed to establish the appropriateness of the placement for the summer program on July 2011 class and did not present any evidence at to the proposed program in place on September 2011(IHO Exh. II at 9,11). The district’s attorney argued that “the DOE must be judged on the program it had in place on the first day of school” (IHO Exh. I at 9). The district’s attorney noted that” in Appeal 11-015, the SRO held that the DOE met its burden by showing that it had a seat for the student on the first day of the ten month program” (Id.). I agree and find the DOE was not required to present evidence concerning this student’s placement in September. I find the evidence presented demonstrative that was appropriately grouped in the summer program and the summer program was appropriate.

The parents’ attorney challenged the developed for and asserted because the DOE failed to develop an appropriate FBA and BIP there was no FAPE. I find the testimony adduced at the hearing established that the psychologist developed the BIP and the FBA after questioning the and ’s parent and the reviewing the assessments. I find the psychological evaluation, classroom observation and information provided by the staff at the , who were familiar with the student offered the psychologist substantial information concerning the student’s problem behaviors, the reasons why he engages in such behavior and strategies the school was using to address that behavior. Further, I note the district’s attorney asserted that “not even the complete absence of an FBA renders the IEP procedurally invalid as long as the IEP itself considers behavior strategies. See. A.C. ex rel M.C. v Bd. of Education of the Chappaqua Sch. Dist., 553 F.3d 165, 172(2nd Cir. 2009)” (IHO I at 6). Accordingly, I find the FBA and resultant BIP were appropriate.

Based on the foregoing, I find the district established that FAPE was provided during the 2011-2012 school year and I could stop my inquiry. However, I note that the parents must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school was offering an instructional program that meets the child’s special education needs and was appropriate. Burlington School Comm.v. Department of Educ., 471 U.S. 359 (1985); Florence County School Dist. v. Carter, 510 U.S. 7 (1993). When determining whether the parents; unilateral placement is appropriate, “ultimately, the issue turns on whether the placement is reasonably calculated to enable the child to receive educational benefits. Frank G. v. Bd. Of Education, 459 F.3d 356 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007). I find the testimony adduced at the hearing and evidence presented established that the parents failed to meet their burden to establish the second prong.

The district attorney asserted that a 10-month program was not appropriate (IHO Exh. I at 13). Testimony adduced at the hearing did not demonstrate that the was appropriate because it was a 10-month program. The SRO held in Application of the New York City Dept. of Educ., Appeal 11-057, it was not appropriate to place a student who required a 12-month program in a 10-month placement. It was undisputed that the is a 10-month program and the required a 12-month program. I credit the testimony of the parents’ own witnesses that regressed over the summer of 2011. Further, the parents asserted that the was appropriate because progressed at the . It was noted that at the hearing that requires redirection and refocusing and that s’s impact on his classroom performance. I find that there was not sufficient information about how the program at the met his individual needs. I credit the testimony of the ABA therapist at the Beacon School who maintained that could not function in class without her. I find evidence presented was replete with descriptions of ’s issues with his frustration, his language, comprehension and and there was no evidence as to how ’s needs were met at the without his . Furthermore, I find that even if made some progress with these issues in the private program chosen by his parents, this does not automatically entitle the parent to reimbursement because a district’s obligation is not to provide a maximum education but an appropriate one. See, Rowley, 458 U.S. 176 (1982).

Moreover, there were no objective, measurable evidence regarding whether progressed at the as the principal indicated that informal assessments were made to measure progress in math. The SRO denied reimbursement where the record did not contain any documentary or objective evidence (Application of a Child with a Disability, Appeal No. 08-151). I further find there was insufficient information about the how ’s needs were met by the staff without his . I further find there insufficient information about the related services providers at the except I note that the cost of the related service providers was not included in the tuition for the .

Based on the foregoing I find that the parent’s claim fails the second prong of the Burlington test. Because I do not find the parent’s placement appropriate, I do not need to consider the third prong. However, I credit the testimony of the psychologist that was present at the May 31, 2011 IEP meeting indicated that the parent would continue the and I do not credit the testimony of the parent who stated he would have considered a DOE placement. Therefore, I find the parents fail the third prong of the Burlington test.

ORDER

I therefore deny the parents’ request for reimbursement/direct payment for the cost of tuition of the and the cost of the paraprofessional for the . Further, I deny the parents’ request for 30 hours per week of , and related services of 5 hours per week of and 3 sessions of 30 minutes per session per week for for the 2011-2012 school year. Dated: February 29, 2012 Corrected Date: April 3, 2012 (Correction made to Evidence List on page 27)

________________________

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

LA:jj: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 ON AUGUST 24, 2011

PARENT

A Due Process Request, 7/29/11, 11 pp. B Findings of Fact and Decision, 7/22/09, 18 pp.

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 3, 2011

A Demand for Due Process w/Fax Confirmation, 7/29/, 11 pp.

B Findings of Fact and Decision, 7/ 22/09, 18 pp.

C NYC DOE Classroom Observation, 2/9/11, 2 pp.

D Comprehensive Psychological Evaluation by Diagnostic and

Treatment Center, by , PhD, 3/15/11 3/29/11, 4 pp.

E End of Year Report , 5/11/11, 6 pp.

F Student Progress Report for Annual Review by ,

Special Education, 5/27/11, 5 pp.

G NYC DOE Notice of Recommended Deferral of Placement

With Fax Confirmation, 5/31/11, 2 pp.

H IEP, 5/31/11, 17 pp.

I NYC DOE Final Notice of Recommendation, 6/9/11, 1 p.

J Letter from Parent, 6/29/11, 3 pp.

K Proof of Payment Credit Card Statement, 7/8/11, 2 pp.

L NYC DOE Due Process Response, 7/21/11, 11 pp.

M Proof of Payment-Cancelled Check, 9/1/11, 1 p.

N Enrollment Contract to the , 9/1/11, 1 p.

O Agreement Between and Parents, 9/1/11, 1 p.

P Attendance Record, 10/11, 1 p.

Q Affidavit from the , 10/27/11, 1 p.

R Class Schedule at , 2011-2012, 1 p.

S Description of the , 2011-2012, 1 p.

T Providers License, Undated, 2 pp.

U Report, Undated, 3 pp.

V New York State DOE Use of Time Out Room, 5/11, 2 pp.

W NYC DOE TEACCH Methodologies, 2/7/11, 3 pp.

X NYC Education Department Full Time Paraprofessional Teaching Assistants,

Undated, 2 pp.

Y Omitted

Z EI-Request Form, Undated, 1 p.

AA NYC DOE Methodology, 2/7/11, 3 pp.

BB Omitted

CC NYS SED , 5/20/11, 2 pages

DD District Placement Office Referral Form, Undated, 1 p.

EE NY State Educational Department BIP, Undated, 2 pp.

FF NYC DOE Special Education Delivery Service Report, 5/20/11, 1 p.

GG DOE District Organization Directory, 10/13/11, 3 pp.

HH Student Progress Report, for Annual Review by Special Education,

5/13/11, 5 pp.

DEPARTMENT OF EDUCATION

1 IEP, 5/31/11, 17 pp. 2 NYC DOE Classroom Observation, 2/29/11, 2 pp. 3 NYC DOE Functional Behavior Assessment, Undated, 1 p. 4 Diagnostic and Treatment Center Comprehensive Psychological

Evaluation, 3/15/11, 4 pp. 5 Handwritten Occupational Therapy Report, Undated, 1 p. 6 NYC DOE Notice of Recommended Deferred Placement, 5/31/11, 2 pp. 7 NYC DOE Final Notice of Recommendation, 6/8/11, 1 p. 8 Beacon School Class Profile, 2011-2012, 1 page

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 10, 2012

PARENT

II Therapist Progress Report, 6/30/11, 4 pp.

POST HEARING SUBMISSIONS

IMPARTIAL HEARING OFFICER

I Closing Brief of , Esq., 2/22/12, 17 pp. II Post-Hearing Brief of , Esq., 2/22/12, 30 pp.