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 26, 2011

October 5, 2011

October 31, 2011

January 31, 2012 Actual Record Close Date: April 20, 2012 Hearing Officer: Martin Schiff, Esq.

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

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 5, 2011

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 31, 2011

Attorney — Student

Parents

Attorney — DOE

School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31, 2012

Attorney — Student

Parents

SEIT Provider — Student

Attorney — DOE

Assistant Principal — DOE

JURISDICTIONAL STATEMENT AND POSITION OF THE PARTIES

On July 29, 2011, I was appointed to hear the matter of a child with a disability, pursuant to the Individuals with Disabilities in Education Act (IDEIA), 20 U.S.C. 1415 (f)(1) and Florence County School District Four v. Carter by Carter, 114 S. Ct. 361 (1993). The impartial hearing request was filed on July 27, 2011 [Exh. 1] After a pendency hearing on August 26, 2011 and a pendency decision on August 27, 2011, hearings were held on the merits on October 5, 2011, October 31, 2011 and January 31, 2012. The hearing was completed with closing briefs submitted on March 12, 2012 . At this time, the proceedings were closed with no further testimony taken. The parties made a number of compliance case extension requests due to the unavailability of witnesses. These were granted by the impartial hearing officer since neither party was prejudiced by the case extension, and due process would not have been served by an early termination of the case without all significant testimony having been heard.

It is noted that this is a parental request for an impartial hearing, dated July 27, 2011 [Exh. 1], based on the allegations, among others, that: (1) the school district failed to offer their child, . a free and appropriate education (FAPE) for the 2011-2012 school year; (2) the alleged school district failure to conduct evaluations for the child on or before May 21, 2011 violated the child’s rights to a FAPE under the IDEIA; (3) the CSE recommended related services to the child in his IEP of May 31, 2011 and decreased his physical therapy by one session per week to add I session of counseling per week, all to be done without timely evaluations of the child’s actual needs in these areas; (4) the CSE did not authorize continuation of the child’s home-base program which his SEIT teacher continues to be necessary for him in his ; (5) the of the failure of the CSE to conduct a ) and ) to be included in the 2011-2012 IEP; and (6) the final notice of recommendation offered by the CSE was inappropriate for the child.

The Department of Education [DOE] denies the allegations in the parents’ complaint and responds, in summary, as follows. The IEP team met on May 31, 2011 and classified the child as a . He had previously , and the IEP team had no reason to change its classification. He was recommended for a special class in a specialized school (District 75) with related services of , . [Exh. 2] The CSE team relied for its recommendations upon related service progress reports and evaluations and other documents: CSE Educational Progress (January 2011); Medical Report (April 2008); Turning 5 Evaluation/Psychological Evaluation (May 2011); and , for SEIT Services (January 2011). On May 31, 2011, a final notice of recommendation was issued to the parent in which placement at , the , was offered. The parent had the opportunity to participate in the CSE review process. The IEP contains annual goals academically and for related services. The placement is reasonably calculated to enable the child to obtain meaningful educational benefits.

THE DEPARTMENT OF EDUCATION’S CASE

1st Hearing Date: August 26, 2011

There was a pendency hearing on this date which was decided by the IHO in favor of pendency on August 27, 2011. 2nd Hearing Date: October 5, 2011

There was no testimony on this date as issues arose regarding the unexpected absence of a placement for the child during pendency, the late appointment of a SEIT pendency appointment for the child and the loss of services by the child while both classroom services, related services and SEIT services are not being provided. Ariel Esq. represented the DOE, and , Esq represented the parent. It was agreed by the parties that they would cooperate to search for a new pendency placement because the absence of a classroom was the . Since the SEIT provider was expected to see the child at home shortly, it was agreed to ask the SEIT provider to write a brief report to be presented for the next hearing dated on October 31, 2012 on the status of the child’s needs and how . The brief report would be a guide for the IHO to issue an Interim Order on the child’s immediate needs, assuming that a classroom has been located for the child. 3rd Hearing Date: October 31, 3011

The hearing resumed with the same pendency problem encountered earlier. No private pre-school was willing to accept the student for pendency since the would lose a place for a once pendency is lifted for this child. [Tr. at 58] So the DOE looked for and found a substantially similar public school placement. On September 28, 2011, a placement was found at , School, which offered “a substantially similar program” according to DOE , Esq. [Tr. at 58] However, the parent rejected it. Yet, Ms. reiterated, it does suit pendency purposes since it is a substantially similar program. In addition, with respect to the merits of the complaint, there is one seat still available in the DOE’s original recommended classroom for the child, a kindergarten placement. [Tr. at 50-60] The parties pledged to continue the search for a school willing to take a pendency placement.

Ms. presented her opening statement. The CSE recommended on May 31, 2011 a special class in a special school with a staffing ratio with related services of counseling, in a group, individually, for the 2011-2012 school year. The CSE considered the child’s most recent progress reports and evaluations and input from all those participating at the CSE meeting. On June 14, 2011, an FNR was made for the child to attend the . He was offered a class of students with similar needs and was, in the opinion of the DOE, offered a FAPE/ [Tr. at 82]

The first witness for the DOE was Ms. , a school psychologist who sat on the child’s IEP team. She has advanced degrees and . She works out of two different public school locations. She knows the child because she was assigned to the child’s Turning 5 case. This was the transition from CPSE to CSE during the 2010-2011 school year. Now we are in the 2011-2012 school year which is the focus of the complaint. The CSE review was held on May 31, 2011 to be for the 2011-2012 school year. She has observed the child at his pre-school. This was in April 2011. [Tr. at 93] She did a evaluation of the child in May 2011. It took 45 minutes. For the evaluation, she interviewed the mother, doing a social history. She did a classroom observation. She collated the program reports from the child’s providers and teachers. She also interviewed his special education teacher. She provided copies of the reports to the mother. All together, these items constituted the child’s file which she had with her at the CSE review. All members of the CSE had the opportunity to express themselves at the CSE meeting. Evaluations and reports were discussed. No one objected to the evaluations and reports considered at the CSE of May 31, 2011. [Tr. at 108] The boy was classified as autistic and recommended for a 12-month 6:1:1 special class in a specialized school. [Tr. at 110]

The child has (BIP) was developed for him during the IEP discussions. [Tr. at 114] [Exh. 3-12, Exh. 3-3] There was first a ) [Exh. 4-4] This IEP targeted goals for the child in . The goals were developed and discussed at the meeting. [Tr. at 119] Also, , , . [The parent objected to the reduction of from 2 periods to 1 period a week. The DOE did not see his need in this area as great as elsewhere, e.g. .]

The 12 month program was recommended for the child to avert summer regression. The program was designed to give him appropriate support. The program specializes in children on the . It was agreed upon by a consensus of the CSE. [Tr. at 136-137]

Other programs were considered but would not have met his needs. A less restrictive larger class such as a would not satisfy his sensory needs and be too overwhelming for him. [Tr. at 138] A special class in a community school was also considered and rejected as inappropriate. [Tr. at 139] On the other hand, a special education private school was considered too restrictive. [Tr. at 139]

The SEIT services under the CPSE were discontinued for the Turning 5 IEP because the 6:1:1 program provided for him was very structured and a very small class designed for and able to take care of his needs. [Tr. at 140-141]

It was decided to no longer use a para with the child because it was too . [Tr. at 142-143]

Ms. a was cross-examined by Ms. . She testified that her work includes evaluation of children referred for evaluation and also includes participation in CSE/IEP meetings. She saw the child for the first time at his classroom observation in the spring of 2011. There was minimal interaction with him. She reviewed the pre-school evaluation scale. (PES) [Tr. at 149] She observed him for 45 minutes at . In the Turning 5 psychological evaluation she noticed that the child was strong and tall. He experienced when the class split into two groups: a circle time group and a motor group. He wanted to go to the motor group and not the other one. She also noticed that he was able to identify his name from a group of 8 names and also the letter “G”. He needed verbal and vocal prompts to make eye contact with his teacher. [Tr. at 155] He was fidgety and could not sit still or properly while seated with other children on the carpet. [Tr. at 155] The child had a para in that classroom plus students, teacher and assistants.

The classroom observation and the evaluation were her two interactions with the child. The was conducted pursuant to the parent’s request. [Tr. at 159]

She testified that there “was a lengthy discussion when it came to the program recommendation, but everything was described to her, and she seemed willing to give it a try.” [Tr. at 180]

The child’s skills were best for a class and were “too advanced for a with a para.” [Tr. at 183]

On re-direct, she acknowledged that the related services progress reports completed in January of 2011 might not have been valid for September 2011. [Tr. at 199202] However, she still believed that the progress reports were reliable. [Tr. at 203] She also believed that the related services providers for the child were no longer needed for 2011-2012. [Tr. at 203-204] The child, she affirmed, does not need home-based services. [Tr. at 204]

On re-cross examination, she testified that the progress reports suggested whether or not the providers anticipated that the child would meet his goals by September 2011. [Tr. at 210] She did not need new reports because when she received the reports in April they were still current. [Tr. at 210-211]

On re-direct from Ms. , she testified that it is not necessary for a student to receive after-school services in order to allow him to generalize his school learning across multiple environments. [Tr. at 222] 4th Hearing Date: January 31, 2012

The first witness on this date for the DOE was Mr. , an assistant principal at . He is licensed as both a teacher and administrator and also to teach students with disabilities. The school is a special education school which has children with various disabilities and with different ratios of students to teachers for different types of disabilities. [Tr. at 233] For 2011-2012 the school had about 320 students with 185 students in his building. It has 5 floors including an elevator, a gym and a cafeteria. The school has 22 classes, K through 8, with 9 classes for autistic children and the other 13 for ED children. On the 1st day of school in September 2011, had a kindergarten class for children available for this child. [Tr. at 235-236] The teacher would have been Mr. . Mr. has reviewed the IEP for this child. On the 1st day of class there were 2 students. These 2 were functioning on a pre-k level. The classroom was divided up so that it included areas for reading, whole-group instruction, a play area, an area for a smart board, an individual work area, and an area with a small table where a teacher can work 1 on 1 with a student. [Tr. at 242] A multi-sensory approach was used in connection with the interactive smart board. [Tr. at 243]

Teaching techniques include: use of manipulatives, shapes, textured items and things that light up; scaffolding; teacher modeling; and cueing; use of prompts; and use of repetition and re-direction. These techniques are very useful for children. [Tr. at 244245] A positive reinforcement system is used to motivate children. The TEACCH methodology is generally used, but teachers are not wedded to any one philosophy. Mr. , the class teacher, has a background in and would have been able to use techniques if useful. [Tr. at 248] All children’s programs are individualized whether or not is used. [Tr. at 248] Assessments of the children are conducted in the class. The ABLLS [Assessment of Basic Language and Learning Skills] is the main assessment. It is an individual assessment with the curriculum adapted for each child. [Tr. at 250-251] It assesses progress on IEP goals. [Tr. at 251] The students get services of counseling, speech, OT and PT as per their IEP’s. The offers mainstreaming opportunities through field trips. [Tr. at 253] The child would have fit in well with others. The School offers parent training and counseling. This includes parent workshops about topics such as IEP development to individual strategies for the parents to use with their child. The counseling can be done at the school. [Tr. at 269]

Mr. was cross-examined by Ms. . He receives the IEP only when the parent has accepted the placement. [Tr. at 281] The kindergarten class for children actually contained children that functioned about at pre-k level. [Tr. at 283-284]

In response to a question from the IHO, Mr. testified that the designated 6:1:1 class actually had an extra para there for the whole school year, It was really a 6:1:2 program in practice. [Tr. at 313-314]

The DOE rested its case after Mr. finished his testimony. THE PARENTS' CASE: 3rd Hearing Date: October 31, 2011 , esq. represented the parents and made the opening statement on their behalf. The child was born on April 1, 2006. [Tr. at 83] The DOE recommended the child for a kindergarten program that was not suitable for him. He was in a classroom for 20102011., having previously been recommended for a program. Then, against the parents’ wishes, he was placed in a more restricted program, an program, in October 2010. The parent thought that all he needed in the program was the aid of a para. The CSE did do the Turning 5 evaluation which he needed for kindergarten while the parent disagreed with the CPSE IEP for a class. The parent wanted a full evaluation and not just the Turning 5 evaluation. So there was only a evaluation. The CSE developed a 6:1:1 IEP for the child at the . and classified the child as a . He would not get the home-based which the parent wanted even though such was recommended by his SEIT. The child’s . The parent visited the but found it inappropriate for him. There were children with there who would be a poor role model for him. The parent wanted independent evaluations and assessments for him. She also wanted an . [Tr. at 86-87] Thus, the CSE should re-convene, grant him an appropriate IEP with 10 hours of home-based and a para and his related services. This the CSE has not done and so has denied the child a FAPE. 4th Hearing Date: October 31, 2011

The first witness for the parent on this date was Ms. , a SEIT home provider for the child. Her agency, , is not affiliated with the DOE. [Tr. at 317] The agency deals with children with special needs. She has advanced degrees including a Masters in special education. She has worked with this child since September 2009 when he was 3 years old. [Tr. at 323] The child made some progress over the 2009-2010 school year, but he continues to need support. [Tr. at 324] There was further progress through 2010-2011. She worked with him 10 hours a week. [Tr. at 326] She thought that was sufficient. [Tr. at 326] He is able to do some generalization of skills learned from her “but it’s not consistent.” [Tr. at 327] The child needed the home-based program as well as the classroom program. This prevents regression. At the child’s Turning 5 CSE meeting, his home-based ABA was discussed. [Tr. at 333] She supported the mother’s request for these services of 10 hours a week to be continued. She has never seen the child’s c;lassroom services. [Tr. at 333-334]

Ms. was cross-examined by Ms. . Ms was certified in 2004 to teach special education in New York. She services the child at home for 10 hours per week using various techniques. She used his most current IEP, from December 2010 [Tr. at 339] even though it is now the 2011-2012 school year. He has not mastered all the goals from the December 2010 IEP. [Tr. at 341] She knows nothing about the School. She believes that the parent declined SEIT service from the agency for the July-August period of 2011. [Tr. at 345-347]

While the witness was under cross-examination, with a cross-examination question subject to objection by Ms. Ms. stated that the parent’s position and that of Ms. was “that regardless of what program he’s in or not in, … he has a continued need for the [home-based SEIT] services. [Tr. at 357, 362] When cross-examination resumed, Ms. testified that “for generalization purposes the SEIT hours are required.” [Tr. at 363] This does not mean that he would not develop some appropriate skills in an appropriate classroom. [Tr. at 365]

The mother was the next witness. Her child is in . His diagnosis is . [Tr. at 367] In 2010-2011 he attended . He was recommended for a class for September 2010. However, in October the principal felt that he was So the principal . The mother testified that this was without her permission. It was a . [Tr. at 373] There was a new IEP meeting in December of 2010. There were no new evaluations done over the course of the 2010-2011 school year. [Tr. at 373-374] A was done for 2011-2012, but it was not shared with the parent prior to the meeting of May 2011. A 6:1:1 class was recommended for 2011-2012. A home-based program was not included on his IEP for 2011-2012. [Tr. at 378] No new evaluation was done. [Tr. at 378]

The mother was cross-examined. When she asked for a new evaluation for her child from the CSE she made no specific requests in terms of subject matter. [Tr. at 386[ The psychologist then did an evaluation of him some days after the CSE meeting was scheduled. [Tr. at 388] The CSE meeting was later, on May 31, 2011. The psychological evaluation was on May 1, 2011. [Tr. at 391-392]

At the May 31, 2011 CSE meeting, she did not say that she was unhappy with the evaluation. [Tr. at 396] She was not happy with the recommended placement but was not sure about what she wanted. She wanted a class with role models for him where not all other . [Tr. at 396] At this time of the CSE she did not know what the placement of the child would be for September 2011. [Tr. at 396] The child’s current pendency is 6:1:1. [Tr. at 397] The boy’s father visited the in June of 2011 after receiving the FNR, but she never actually visited the . [Tr. at 398-399] Also, the father, she agreed, saw a class that would not have been the child’s actual class. [Tr. at 399]

The mother did not know if the IEP recommendation from the May 3, 2011 CSE meeting cane wholly from information provided by the teacher from the the telephone or if it came from progress reports submitted earlier. [Tr. at 408]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Department of Education once again bears the burden of demonstrating the appropriateness of the program recommended by its CSE based on legislation passed in the aftermath of Schaffer, et al. v. Weast., et al., 2005 WL 302815 (2005). Therefore, the Department (DOE) has the burden set forth in a long line of cases. Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed. Dept. Rep. 487, March 11, 1983. To meet its burden, the Department of Education is required to show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Board of Education v. Rowley, 438 U.S. 176 [1982]) and that the recommended program is the least restrictive environment for the child. {34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]} An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No. 9312; Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed. Dept. Rep 487, March 11, 1983.

It is clear that the legislative intent of 20 U.S. Code Section 1412 of the Individuals with Disabilities Act (IDEIA) is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive and independent lives as adults to the maximum extent possible. In furtherance of this, the IEP is designated, essentially, as the blueprint for ensuring the integrity and appropriateness of the child’s education. The IEP team’s determination of how that child’s disability affects his involvement and progress in the general curriculum is the primary tool by which the protections of the IDEIA are implemented per sections 1436(d) and 1414(d). It is hoped that, as a tool, the IEP will be proactive rather than merely responsive to crises in educational management. In furtherance of this goal, the Department of Education is constrained to develop a plan which meets the requirements of service delivery in the “least restrictive environment.” Specifically, children with disabilities must be educated with children who are not disabled to the maximum extent possible. Separation or removal from the mainstream curriculum is indicated only where the nature or severity of the disability is such that an education in regular classes with the use of supplementary aids and services cannot be achieved successfully.

Although the IDEIA mandates individualized “appropriate” education for disabled children, it does not require a school district to provide a child with the specific educational placement that his parents prefer. See, for example, E.S., 135 F.3d at 569. Nor does the IDEIA require a school district to “either maximize a student’s potential or provide the best possible education at public expense.” Fort Zumwalt, 119 F.3d at 612. The purpose of the IDEIA is “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.” Rowley, 458 U.S. at 192. The IDEIA’s requirements are satisfied when a school district provides individualized education and services sufficient to provide disabled children with “some educational benefit.” Id. At 200

In the instant case, the child, born on , has been and continues to be a “child with a disability” as that term is defined under the IDEIA, 20 U.S.C. Sect. 1400 et seq., and is classified as being on the as that term is defined by 20 U.S.C. Sect. 1401(a)(1). The parents’ claims in this case are that the DOE for a variety of reasons failed to provide this child with a FAPE for the 2011-2012 school year. One claim for the denial of FAPE is that when the CSE met on May 31, 2011 for the IEP to transition him from the CPSE to the CSE it replaced the CPSE program which included a home-based with a special education class in a specialized ( District ) school. In 2010-2011 the child had been classified by the CPSE as a with a disability.

The CSE which made the program recommendations for this child at the May 31, 2011 CSE meeting was duly constituted and convened and had full participation of the parent and of all the members of the committee. Ms. who chaired the CSE had done a /Psychological Evaluation of the child on May 1, 2011 [Exh. 9], had consulted related service provider progress reports on the child in early January 2011 for [Exh. 5], speech and language [Exh. 7], [Exh. 8], and had also reviewed the CSE educational progress report prepared by Ms. , the child’s special education teacher from the Early Learning Center, on January 11, 2011, as well as the Turning Five Report for SEIT Services prepared on Jan. 3, 2011 by . Ms. relied for her and her recommendations for the child in addition on a social history interview with the mother and a classroom observation of the child. At the CSE review she also interviewed personnel to prepare a functional behavioral assessment as a prelude to a prepared later at the meeting.

The mother’s testimony does not indicate that she raised any objections at the CSE meeting to Ms. ’s oral recommendations and written reports or any of the other written reports. Nor is there any basis for the objections that she has raised later at this impartial hearing. The school later recommended as a kindergarten for the child, M. 866, the , was not notably different than the child’s public school pendency later.

The heart of the parents’ complaint rests on the fiction that the parents are entitled to a new evaluation whenever they ask for it whatever the purpose and even if there is no disagreement voiced with the contents of the current evaluation. Ms. and the CSE team had ample and appropriate evaluative documentation gathered in advance of the May 31, 2011 CSE meeting. Federal regulations provide that a public agency must conduct a reevaluation of a child with a disability if the public agency determines that conditions warrant a reevaluation or if the child’s parent or teacher requests a reevaluation. The reevaluation “must occur at least once every 3 years unless the parent and the public agency agree that a reevaluation is unnecessary.” See, 34 CFR Sec. 300.303. citing authority 20 USC 1414(a)((2). Federal and State regulations further provide that, subject to certain limitations, a parent has the right to an independent evaluation at public expense if the parent disagrees with an evaluation obtained by the school district. See, 34 CFR Sec. 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see also, R.L v. Plainville Bd. of Educ., 363 F. Supp. 2d 222, 234-35 [D. Conn. 2005] (finding that a parent’s failure to disagree with an evaluation obtained by a public agency defeated the parent’s claim for an evaluation at public expense).In this case it is clear that the DOE’s Evaluation prepared by Ms. was timely because it was a month prior to the CSE meeting; none of the other progress reports had to be full evaluations, and all were timely in any event because they were prepared earlier in 2011 in the child’s year. Finally, the parent never offered any specificity as to what was inappropriate that had to be re-evaluated. It seemed from her testimony that she just wanted to make sure that all of her child’s tests were in order. Rather than accept the reassurances of Mr. and the child’s teachers and related services providers and/or review the reports provided to her or made available to her, the parent decided to demand new evaluations whatever and however unnecessary the public expense.

The parent has also alleged that the CSE improperly removed the child’s after school /SEIT services from his IEP. However, the child was graduated to kindergarten, and it was determined by the CSE that he would progress better in a special class in a specialized school rather with the continuation of the program. The school district has the burden to establish that the child is grouped with others who have similar academic abilities, learning characteristics, social, physical and management needs. 8 NYCRR Sect. 200.6. It should be noted, however, “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Ses, Walczak v. Florida Union Free Sch Dist, 142 F.3d 119, 130 (2d Cir. 1998) (citing Rowley, 458 U.S. at 189). Rather, IDEA was intended to ensure that a disabled student receive an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” See, Walczak, 142 F.3d at 132 (internal citation omitted)). Moreover, under IDEA, the DOE is not required to “maximize” the potential of students with disabilities. See. Rowley, 458 U.S. at 200 (finding that Congress passed IDEA to ensure that disabled students had a “basic floor of opportunity”); Walczak, 142 F.3d at 132. Since the IDEA does not require the DOE to “maximize” the potential of students with disabilities, the student is not entitled to extended day hours if he is receiving the necessary services during the school day that permit him to make progress. See, Rowley, 458 U.S. at 200; Application of a Child with a Disability, Appeal No. 08-019; Application of a Child with a Disability, Appeal No. 07-040.

Ms. , the child’s after-school provider, testified that the child needs her services to make meaningful progress and for generalization purposes. He was getting her services under pendency. However, she had no knowledge of how effective the special education class that was designated for the child at the would have been especially as taught by Mr. , an experienced and ABA-trained teacher. Thus there is no basis for reimbursement for the home-based and community-based services provided by Ms. . Such educational services go beyond “some educational benefit” mandated by Rowley, 298 U.S. at 200. As indicated, supra, the IDEIA mandates individual “appropriate” education for disabled children but does not require that a school district provide a child with the specific educational placement that the parents prefer. E.S., 135 F.3d at 569. Nor does the IDEIA require a school district to maximize a student’s potential or provide the best possible education at public expense. Fort Zumwalt, 119 F.3d at 612. The IDEIA’s requirements are satisfied when a school district provides individual education and services sufficient to provide disabled children with “some educational benefit” and not an enhanced benefit at public expense.

Another issue that the parents raised in their complaint was the CSE’s substitution of one hour of as a service for the child which was coupled with the reduction of physical therapy by one period. Since the parent did not raise this issue as a complaint at the CSE meeting, it is not clear from the hearing why it has been raised as a complaint now.

Finally, the parents raise as a reason for rejection of the proposed FNR placement at the the fact that the father went to the wrong class and did not actually get to see the class for which his son was designated. This error by the parent cannot be attributed to the DOE and does not negate the validity of the placement. In fact, the evidence indicates that the DOE has met its burden of proof under Burlington/Carter to provide the child with a FAPE for the 2011-2012 school year. WHEREFORE, it is hereby ordered that:

1. The Department of Education (DOE) provided the child in question with a free and appropriate education (FAPE) for the 2011-2012 school year.

2. The parents acted inappropriately in withholding their child’s enrollment from the for the 2011-2012 school year.

3. The Department of Education (DOE) shall incur no expenses to the parents for the 2011-2012 school year.

4. This decision is subject to appeal to and review by the State Review Officer. Dated: April 23, 2012

________________________________

MARTIN SCHIFF, ESQ.

Impartial Hearing Officer

MS: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 IEP, 5/17/10, 13 pp. B Authorization of IEP Change, 5/17/10, 1 p. C Final Notice of Recommendation, 5/17/10, 1 p. D Request for Due Process, 7/27/11, 8 pp. E Evaluation, 9/22/08, 7 pp. F IEP, 4/20/09, 18 pp. G Progress Report, 3/13/10, 2 pp. H Update Progress Report, 3/15/10, 4 pp. I CPSE Annual Review, 3/16/10, 2 p. J Less Restrictive Environment Rationale, 3/18/10, 1 p. K 12-Month Rrationale, 3/18/10, 1 p. L Progress Report,

3/19/10, 3 pp. M IEP, 12/8/10, 19 pp. N Services Report for SEIT Services,

1/3/11, 7 pp. O Progress Report, 1/4/11, 2 pp. P CSE Progress Report, 1/5/11, 2 pp. Q Therapy Annual Review, 1/11/11, 2 pp. R CSE Educational Progress Report, 1/11/11, 3 pp. S Consent for Reevaluation, 2/17/11, 1 p. T Letter from Parent to , 2/28/11, 1 p. U CSE Addendum, 3/24/11, 1 p. V Psychological Evaluation, 5/1/11, 7 pp. W Notice of IEP Meeting, 5/2/11, 2 pp. X Letter from Parent to , 5/6/11, 1 p. Y Letter from Parent to , 5/6/11, 1 p. Z Notice of IEP Meeting, 5/24/11, 2 pp. AA Final Recommendation, 6/14/11, 1 p. BB Progress Report for SEIT Services, 10/22/11, 6 pp.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 7/27/11, 9 pp. 2 Due Process Response, 8/3/11, 4 pp. 3 IEP, 5/31/11, 13 pp. 4 Plan, 6/1/11, 3 pp. 5 CSE Progress Report, 1/5/11, 2 pp. 6 CSE Educational Progress Report, 1/11/11, 3 pp. 7 CSE Progress Report, 1/4/11, 2 pp. 8 CSE Annual Review, 1/11/11, 2 pp. 9 Evaluation, 5/1/11, 7 pp. 10 Report for SEIT Services, 1/3/11, 7 pp. 11 Final Notice of Recommendation, 6/14/11, 1 p.