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:

Dates of Hearing: December 20, 2011

January 23, 2012

February 14, 2012

February 15, 2012

February 22, 2012

March 5, 2012

Actual Record Close Date: March 8, 2012

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 20, 2011

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 23, 2012

Attorney — Student

Parents

Attorney — DOE

Social Worker (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 14, 2012

Attorney — Student

Father — Student

Attorney — DOE

Teacher at (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 15, 2012

Attorney — Student

Parents

Teacher (Via Telephone) — Student

Director, (Via Telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 22, 2012

Attorney — Student

DOE Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 5, 2012

Attorney — Student

Teacher (Via Telephone) — Student

Attorney — DOE

On December 13, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of Cole N. after the recusal of three prior hearing officers. The parents requested the hearing on October 18: (1) to challenge the alleged failure of the Committee on Special Education for District 2 (the “CSE”) to provide with a free appropriate public education for the 2011-2012 school year and (2) to seek reimbursement for their unilateral placement of (“ ”), a non-approved non-public school in , for the 2011-2012 school year.

A pre-hearing conference was conducted on December 20. The hearing on the merits was commenced on January 23. The parent requested an adjournment of the hearing scheduled for January 25 due to parent’s counsel’s family emergency (trans. 72). The hearing continued on February 14 and was completed on February 15. Counsel presented oral closings statements on the record on February 22. Defects in the transcript required an additional hearing date on March 5. Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

On the record on December 20, the parent and the Department requested an extension of the compliance date (trans. 7). This extension was granted, and the compliance date was extended to January 29 (see IHO Ex. I [notice to parties re: factors considered and reasons for extension]). On the record on January 23, the parent requested an extension of the compliance date (trans. 72). This extension was granted, and the compliance date was extended to February 29 (see IHO Ex. II [notice to parties re: factors considered and reasons for extension]). The transcript of the February 15 hearing was forwarded to the hearing officer on February 23; a portion of the testimony was not transcribed. The court reporting company investigated and determined on February 27 that due to an equipment malfunction, this portion of the testimony was not properly recorded and the company was unable to access that recording. The parties agreed to conduct a hearing on March 5 to reconstruct the portion of the missing transcript in order to ensure that the record was complete. The parties made a joint oral application to the hearing officer on February 28 to extend the compliance date for this purpose. This extension request was granted, and the compliance date was extended to March 30 (see IHO Ex. III [notice to parties re: factors considered and reasons for extension]). The record closed on March 8 upon the receipt by the hearing officer of the transcript of this hearing.

BACKGROUND

who attends a grade special education class at . His disability is classified, for the purpose of the IDEA, as . This classification is not in dispute. has attended from September 2009 to the present time.

THE SCHOOL DISTRICT’S CASE

, a certified and school social worker employed by the Department, testified that she participates in the CSE process by conducting social histories and classroom observations, explains due process rights to parents, ensures that documentation is available for CSE meetings and notifies parents of CSE meetings (trans. 30). Ms. conducted a classroom observation of in December 2010 (trans. 34; Department Ex. 6). She observed during a social skills group and science class and noted that his “ ” and that he “required frequent adult support and redirection in order to participate in class activities” (Department Ex. 6 at p. 2). He used his sensory tools, walked around the room for a while, “ ,” but did “respond to redirection” from the teacher (trans. 35-36). He also engaged in . At one point he “, ” (Department Ex. 6 at p. 2). At one point he needed to provided by the teacher; later in the class, he and had (Department Ex. 6 at p. 2). Ms. noted that ” (trans. 36). The CSE did not conduct a assessment (“ of (trans. 58).

Ms. attended a CSE review for held on February 3, 2011 (trans. 31; Department Ex. 2). The meeting was to create an IEP for for the 2011-2012 school year, when he would be a (trans. 43).^[1] At the time of the meeting, in a class of students with two teachers (trans. 32). The following individuals attended the CSE meeting: the parents; Ms. , as a social worker; Ms. as district representative and special education teacher; a general education teacher; a school and ’s teacher from participating by telephone (Department Ex. 2 at p. 2; trans. 32-33). Ms. stated that was on the telephone for the duration of the meeting (trans. 56). The parents had provided the CSE with fall 2010 report, an and a report (trans. 33, 38-39; Department Ex. 5). The parents contributed to the discussion at the meeting and explained their concerns about ’s needs (trans. 52). Ms. testified that is , (trans. 42). He needs classroom (trans. 45-46).

Ms. stated that Ms. took minutes of the CSE meeting (trans. 37; Department Ex. 3). The minutes reflect that discussions concerning were conducted before his classroom teacher was called by telephone to join the meeting (Department Ex. 3).

The IEP notes that “testing within the moderate range on the ,” and has significant (Department Ex. 2 at p. 6). According to the “teacher estimates” set forth in the IEP in February 2011, in solving and writing (Department Ex. 2 at p. 4). The IEP notes that but can be . He is “ when instruction and activities can be structured, active (involve body movement) and predictable” (Department Ex. 2 at p. 3). The IEP lists the following academic management needs: , whole , . 4). With respect to functioning, the IEP notes that ” (Department Ex. 2 at p. 5). and “has

The IEP includes goals in the areas of testified that the academic goals set forth in the IEP were developed at the CSE meeting through discussion among the teachers participating in the meeting (trans. 49-50). The related services goals incorporated the goals submitted by ’s related services providers (except for , which were continued from prior IEP because ) (trans. 48, 50).

The CSE recommended that (“ ”) paraprofessional and receive the related services of (one 30 minute session per week in a group of students), therapy (two 30 minute sessions per week individually), therapy (two 30 minute sessions per week individually) and (three 30 minute sessions per week in a group of students). Ms. stated that the CSE made the CTT recommendation because , who benefits from being with ” (trans. 51). The parents indicated that they had visited ” (trans. 61). The team recommended the paraprofessional to assist him with his behaviors, to help him with transitions, to redirect him, and to “be like a role model for him” (trans. 49). Ms. explained that the CSE recommended to assist with his including (trans. 47).

The CSE sent the parents a final notice of recommendation dated July 19 for a class at in (Department Ex. 4).

, a certified special education teacher, testified that she was employed by the Department as a special education teacher in a grade (trans. 86). She co-teaches the class with a certified general education teacher (trans. 120). In September 2011, there were students enrolled in the class and of the students were special education students (trans. 89). The special education students ranged in age from to years and their disabilities were classified as (one) (trans. 89-90). At the beginning of the school year, Ms. and the general education teacher worked on creating a “class community” and transitioning the students into the class by group discussions, introducing the class routines and schedules, , role-playing of appropriate behavior, and activities for the students to get to know each other and the related services providers (trans. 88, 90-93, 146-147). Ms. also communicates with the related services providers to address issues in both (trans. 92-93). All the students in the class received the related services mandated in their IEPs (trans. 93).

Ms. assessed the students in reading using the (“ and in math by “preassessing” grade skills to determine which skills needed review before starting on the grade curriculum (trans. 94). Ms. uses small group instruction, multisensory approaches, manipulatives and graphic organizers (trans. 96). A typical school day begins with morning meeting with a poem to improve reading fluency and review of the calendar, math (during which she works with a group of students on the same lesson as the rest of the class “with more differentiation and going on a little bit of a slower pace”), reading, writing, a special (art, music, theater, gym or technology), lunch, social studies or science, and then phonics. In reading, a “mini-lesson” is presented to the class, and then the class breaks into groups for independent work or “small guided reading” groups of or students to work on specific skills and comprehension techniques (trans. 98-99, 119). Each student has two small group reading sessions per week (trans. 99). Students who are reading grade level meet for “book club” instead of phonics, read books “at a much level,” and have discussions (trans. 123). There are students in this group, and Ms. meets with this group daily for 25 minutes (trans. 124).

Writing also starts with a “mini-lesson,” and then Ms. works with a small group and the general education teacher conferences with individual students (trans. 98). Ms. provided to students (trans. 109). She provided to all students during independent work time (trans. 110). Students are also grouped for writing and math (trans. 102). Ms. and the general education teacher plan every lesson together (trans. 105).

Ms. works on development through “group work” such as “reader theater where the kids have to work together and perform a skit” and having students “share what they’ve been doing” (trans. 107-108). in the classroom includes a listening center and some manipulatives; sensory tools such as putty were not used in the class this year (trans. 143). None of the students in the class require sensory breaks (trans. 143).

Ms. communicates with parents through letters, telephone calls and email (trans. 110-111). Parents are invited to the class for special activities such as “publishing parties” and performances (trans. 111). She has not provided parent training this year; however, she believed that parents would have access to parent training and counseling provided by the District school in the building (trans. 149).

Ms. testified that she had experience working with paraprofessionals in the classroom (trans. 113). She reviewed the goals set forth in ’s IEP and stated that she would have been able to work on those goals had attended her class this year (trans. 114). These goals are included in the grade curriculum that she teaches. For example, she conducts small group instruction in editing skills such as capitalization and punctuation, works on the money and subtraction math skills set forth in the goals, works on spelling and decoding skills, and works on organizing written work (trans. 114-115). would also have opportunities for peer modeling in the class (trans. 115).

The class profile shows that there are students in the class, of whom are special education students (Parent’s Ex. I). The disabilities of of the students are classified as disabled, one as one as impairment and as impairment. According to the profile, the students are reading on ( students) through a level and their math functioning levels range from a (same students) through a level. One student is listed as Ms. testified that some of the information on the profile is incorrect. The student listed as was testable, and his reading functioning level was at the end of beginning of grade and math functioning level was at the beginning of grade. At the beginning of the school year, the student listed on the profile as functioning on the “ ” level was functioning at the end of level; and the students listed as functioning on the level were functioning at the end of /beginning of grade level (trans. 134-140). Ms. testified that the students’ functioning levels in September 2011 ranged from the end of to the end of grade; at the time of the hearing their functioning levels ranged from the beginning of grade to the beginning of grade, with most students “a little bit grade level” at the time of her testimony (trans. 137-138, 115-116).

Ms. testified that would have been appropriately placed in her classroom because his IEP goals are in accord with the grade curriculum and with the material she teaches in her class (trans. 116).

By letter dated August 24, the parents informed the CSE that they intended to place and intended to seek funding “if the procedural and substantive violations of the IEP and placement are not cured.” The parents also rejected the IEP and the proposed program on the grounds that the IEP and proposed program denied a free appropriate public education (Department Ex. 7).

By letter dated September 27, the parent informed the CSE that he had visited the proposed class and explained how the school and the class were too large for , that he would not learn there, and that he would not be appropriately functionally grouped in the class. The parent rejected the placement as asked for alternative placements (Department Ex. 8).

THE PARENT’S CASE

testified that she was a certified teacher of the building and school district administrator licenses (trans. 233-234). She is the founder and head of school at (trans. 235). There are students enrolled in the school in grades kindergarten through sixth. All the teachers in the school are certified and have masters’ degrees in special education (trans. 242). The mission of the school is to educate students who who need “a small, or and have a difficult time . . . in a larger environment than a ” (trans. 236237). Ms. every day and has attended his team meetings and parent-teacher conferences (trans. 240).

Ms. observed that was a “ who was “ . So it’s hard for him to focus.” He is also , making it hard to redirect him. self-regulation (trans. 241). has made progress at and “ . However, his “issues” with “ ” such as an ICT class (trans. 243, 246).

testified that she had a master’s degree in general and special education for grades one through six and was the head teacher of ’s grade class at (trans. 398399). There are two grade classes, each with students, a head teacher and an assistant teacher (trans. 227-228, 400). The assistant teacher on s class has a master’s degree in early childhood and early special education (trans. 407). There are no opportunities for mainstreaming for (trans. 222). Ms. opined that would not benefit from ” (trans. 228). The students in ’s class are all “ functioning,” and have classifications of , (trans. 216-217, 400). The class is “very small,” structured, employs visuals, and is “ ” (trans. 400). ” and is “model[ed]” for the students during the entire day (trans. 402). Ms. uses and interactive activities and a Smartboard (trans. 402-403). She opined that benefits from the small class with two special education teachers because one teacher leads the lesson and the other teacher walks around the class supporting students and ensuring that they are “on task” and understanding “what’s going on” (trans. 408).

Ms. plans daily lessons “to target the skills for each child” and “individualize for each child” (trans. 399). She also collaborates with the related services providers and the “specials” teachers daily, leads team meetings every other week, and communicates daily with parents through email or by telephone (trans. 399-400).

Ms. described as a . He “ ,” “to ,” and to have “a really difficult time regulating his body” and “seeks the movement throughout the day” of sitting on a “bouncy ball” (trans. 404-405). , The class takes “ ” . The (trans. 409-410). (trans. 411). Each student also has an individual body break plan formulated by Ms. and the . classroom. Ms. also has the ” ” (trans. 410). He has . He still because he is “seeking that movement” (trans. 429-430). Ms. has created boundaries in the classroom for his pacing (trans. 430). Ms. also created an individual behavior chart for with two goals: staying calm and keeping his body regulated (trans. 431). The chart has assisted in remaining calm and in focusing on what he needs to be doing (trans. 432). There is also a school–wide behavior plan using a “traffic light” warning system (trans. 433). As a result of these two plans, has made progress with his behaviors (trans. 434).

A typical day in the classroom begins with morning meeting (particularly important to review the schedule for the day) and morning jobs, and would include handwriting (two times per week), social studies (two times per week), language arts (two times per week), writing (two times per week), reading (daily), lunch (which is eaten in the classroom), math (daily), choice time (daily) and specials including music, computer and gym (four times per week) (trans. 414-417). The classroom is outfitted with an (trans. 420).

is in a reading group of students and a math group of students; students are placed in these groups based upon their functioning levels (trans. 209, 415-416). Ms. , which has worked well for (trans. 219). is in all areas (trans. 215). has responded positively to the “very individualized” reading instruction Ms. provides (trans. 420421). The classroom assistant works with ’s math group and uses the and math programs, which are (trans. 422). Since math is a strength for , he “ ” and work is modified for him (trans. 423). has made progress in math this year (trans. 425). Ms. uses the New York State standards to guide the writing curriculum, and the class is working on parts of (trans. 428). has benefited from use of (trans. 224).

Ms. uses the program for handwriting and has created lined worksheets for the students to use (trans. 173-174). has responded positively to this program (trans. 427).

In social studies, Ms. uses the . Students work on reports about states and regions (trans. 174-175). enjoys working on this type of project (trans. 175). Ms. uses choice time to teach (trans. 176-177).

Ms. addresses ’s by Ms. addresses ’s receptive by using , information into “small simple instructions” in order for him to be able to process it, frequent teacher check-ins for understanding, and the to assist with to the teacher’s voice in the classroom (trans. 180-181, 207-208). has responded positively to these interventions.

She addresses ’

has made progress . His chart helps him

a there are two teachers in each class at and because such a paraprofessional would “hinder” him. With a paraprofessional, would feel as though he were being singled out. In addition, a paraprofessional would not promote ’s independence. is now able to “ ” his (trans. 187-188).

provides related services to : (one 30 minute session per week with another student), counseling (one 30 minute session per week), and (two 30 minute sessions per week with another student). In addition, the pushes into the class one time per week for social skills work with the (trans. 190). does not provide (trans. 206). with adaptive physical education four times per week during gym (trans. 206). Ms. has team meetings with the related services providers and the specials teachers every other week (trans. 191). At the most recent meeting, they tools (trans. 192). Parent training and counseling is provided by the school’s counseling department (trans. 226).

Ms. prepares progress reports for . fall report for 2011indicates that he has responded to strategies to maintain his attention and has increased his flexibility and problem-solving skills (Parent’s Ex. B). is in a reading group that meets daily for 45 minutes and uses to improve spelling, fluency and comprehension. In math, has benefitted from use of manipulatives, and direct instruction but his “internal and external distractions, as well as his , his ability to remain focused and on task and he needs frequent reminders to ” (Parent’s Exhibit B at p. 2). is able to re-focus with , . In language arts, benefits from graphic organizers as well as verbal reminders to remain ” (Parent’s Ex. B. at p. 3). The report notes that “ struggle with often further “benefits from teacher support to the appropriate reaction to the situation” (Parent’s Ex. B at p. 4). has made “ ” in the areas of classroom and during his social interactions or when an academic expectation is raised” (Parent’s Ex. C at p. 1; see also Parent’s Exs. D, E [ ]).

mid-year report, dated February 2012 (Parent’s Ex. H) notes that due to his “difficulty maintaining in the classroom, as well as his difficulty with , and social cognition, requires a variety of individualized supports and strategies to ” (Parent’s Ex. H. at p. 1). The report notes progress in reading, with ” and has made improvements in reading comprehension (Parent’s Ex. H at pp. 2, 5). However, he that do not include a and will then walk around the perimeter of the classroom. The report outlines the strategies that help stay on task: sitting on a bouncy ball during discussions, reminders from the teacher, and encouragement. The report also notes ’s continued progress in math computation skills; however, he continues to be distracted and which impedes his ability to stay on task. His teacher uses similar strategies as to those used in reading to improve focus (Parent’s Ex. H at p. 3).

Ms. opined that her class at was appropriate for because it provided him with a small, structured setting with (trans. 194). She has observed him in choir, which includes all —a group of more than ten students. While “ ” and “it was very distracting to him and it would just . So now he doesn’t go anymore” (trans. 194-195).

The parent testified that and received vices (trans. 256). He was subsequently diagnosed with ”) (trans. 257 . He is “ ”— (trans. 258-259). He has “ difficulties with ” (trans. 259). and (trans. 261-262).

, for one year and received related services. He then attended the and continued to receive related services. has attended (trans. 264). He has been making progress at (trans. 268-270, 273-274). The parents communicate with s teachers at by email two to three times per week (trans. 271). provides the parents with parent training through the school in the form of meetings, which the parents have attended (trans. 272).

The parent attended the February 3 CSE meeting. ’s teacher participated by telephone for approximately 30 minutes of the one and one-half hour meeting (trans. 276). At the meeting, the parent objected to the paraprofessional because , , did not need someone “hovering over him the entire day” (trans. 288).

The parent described the efforts he has made to explore different placements available through the Department of Education. He has had discussions with the director of the (a Department program for ), visited CTT classes, and visited a class (trans. 284-285, 291-292, 313-314, 320). attends a public school (trans. 319).

By letter dated July 26, the parent informed the CSE that he had received the final notice of recommendation, tried to arrange a visit to the school, but was informed that there were no tours over the summer (Parent’s Ex. A, trans. 290). The parent requested information about the school and the proposed class.

The parent visited in September (trans. 293). The parent was shown a classroom with students. He believed that it would be inappropriate to place because he needs a smaller class in order to function (trans. 295). The parent informed the CSE of this opinion in a letter (Department Ex. 8).

The parents signed an “Re-Enrollment Contract” for the 2011-2012 school year on January 27, 2011 (Parent’s Ex. F). The tuition amount for this school year is $ with a deposit of $ due by February 1. In the event that the child were to be enrolled in a Department placement by August 15, the parent would be relieved of the obligation to make the two final installment payments and receive a refund of the first installment payment (Parent’s Ex. F). The parent has paid the tuition in full (trans. 325).

FINDINGS OF FACT AND DECISION

A board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

I. The Appropriateness of the School District’s Program for The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-

121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982). While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06-121. If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. The school district bears the burden of demonstrating the appropriateness of the program recommended by its CSE.

A. Alleged Procedural Violations

The parents contend that the following procedural violations rise to the level of procedural inadequacies depriving a free appropriate public education: the IEP meeting was held in February, too early to make sound educational decisions for for September 2011; participated in only a portion of the CSE meeting; the CSE did not consider any formal testing of in preparing the IEP; and the final notice of recommendation for was not provided to the parent until five months after the CSE meeting.

A school district is required to conduct a CSE meeting “at least annually.” 8 N.Y.C.R.R. §200.1(c), 8 N.Y.C.R.R. §200.4(f). The CSE conducted such an annual review meeting for There is no requirement that an IEP review occur at any particular time during the school year. An IEP is intended as a document to be applied on a “going forward” basis in anticipation, unless stated otherwise, of meeting a year in the future.^[2] Here, the meeting was held in February and considered evaluative material and input from the meeting participants. The parent fully participated and expressed his concerns about ’s educational needs. There is no indication on this record that holding the meeting in February impeded s right to a free appropriate public education, impeded the parents’ opportunity to participate in the decisionmaking process, or caused a deprivation of educational benefits to

It is clear, based upon the CSE meeting minutes, that s teacher did not participate for the entirety of the CSE meeting. She should have been on the telephone for the entirety of the meeting. However, the teacher contributed to the discussions at the CSE meeting, and the parents engaged in a full and extensive discussion of at the CSE meeting. As a result, the failure of to participate in the entirety of the CSE meeting did not impede right to a free appropriate public education, impede the parents’ opportunity to participate in the decisionmaking process, nor cause a deprivation of educational benefits to

In developing the recommendations for a student’s IEP, the CSE must consider “the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the results of the student's performance on any general State or district-wide assessment programs; and any special considerations . . . .” 8 N.Y.C.R.R. § 200.4(d)(2).^[3] Here, the CSE considered the classroom observation, the fall report, and therapy and therapy reports. This line up of information has been found to satisfy the requirements of the regulations. See B.P and A.P. v. New York City Department of Education, 11 Civ. 2141, 2012 LEXIS U.S. Dist. LEXIS 1736 (E.D.N.Y. Jan. 6, 2012).

With respect to the delay in the issuance of the final notice of recommendation to the parent, the Department is required to provide a placement recommendation to the parent in a timely manner. Five months is not timely. However, this delay did not, under the particular facts of this proceeding—given the issuance of the final notice of recommendation prior to the commencement of the school year—impede to a free appropriate public education, impede the parents’ opportunity to participate in the decisionmaking process, nor cause a deprivation of educational benefits to Cole. See S.F. v. New York City Department of Education, 11 Civ. 870, 2011 U.S. Dist. LEXIS 129672 (S.D.N.Y. Nov. 9, 2011); M.P.G. v. New York City Department of Education, 08 Civ. 8051, 2010 U.S. Dist. LEXIS 88777 (S.D.N.Y. Aug. 27, 2010).

B. Appropriateness of Program Offered to Cole

A recommended special educational program must be reasonably calculated to allow the child to receive an educational benefit and be the least restrictive environment for the child. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is “’likely to produce progress, not regression” and that affords the child the opportunity for more than “mere ‘trivial advancement’”—in short, likely to provide some “’meaningful’” benefit. Application of a Child with a Disability, Appeal No. 06-121 quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997)]. A school district thus satisfies this standard “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 School District, 142 F.3d 119, 130 (2d Cir. 1998); see also 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 Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]).

In this proceeding, the Department does not establish that the program recommended for meets the above standard. The IEP prepared for provides sufficient special education services, interventions and supports to address his identified special educational needs. Specifically, the CSE recommended that attend a CTT class with a paraprofessional and receive related services. Ms. testified that the CSE recommended the paraprofessional in order to assist , help him with transitions and redirect him. who at or grade level. While he has difficulties with attention, impulsivity and , as observed by Ms. , well to redirection from an adult.

Children in the proposed class are grouped based upon functional levels for reading, math and writing. Ms. as able to, and does, differentiate instruction for her students. Ms. explained that she uses in her classroom some of the interventions that have been successful with : small group instruction, multi-sensory instruction, manipulatives and graphic organizers. She also provides one-to-one special education teacher support to all the students and works on socialization and social skills development. Ms. credibly testified that she would have been able to work on the goals set forth on ’s IEP.

However, the academic and management needs listed on the IEP include (in addition to the above interventions Ms. described in her testimony) whole body . needs these interventions; this is why the CSE included them on the IEP. Ms. specifically testified that sensory breaks were not provided in her classroom nor were sensory tools used. The evidence shows that ’s identified special education needs include with . The and use of permit the to address his (both and ) difficulties. day, particularly through (as the CSE recognized) , he is available for learning and can learn. Finding that a free appropriate public education (“FAPE”) could be delivered to at the proposed placement (where interventions specified on his IEP would not be provided to him) would undermine the CSE’s role in creating an IEP tailored to a child’s identified individual special educational needs.

In addition, the evidence does not indicate that the remaining interventions (whole body activities, explicit directions, , , and ) would have been available for at the proposed placement. Some of these interventions similarly address ’s . Other of these interventions specified by the CSE in the IEP relate to other difficulties . For example, , which can result in his .4 Again, s needs (as the CSE recognized) must be addressed in order for to be available for learning. And once he is available for learning through the interventions set forth by the CSE in the IEP, he can learn.

Furthermore, the recommendation of general education with the support of the paraprofessional and the recommendations for the academic management and social/emotional management needs go hand-in-hand—the IEP presumes that both supports (the paraprofessional and the range of interventions) would be provided to The evidence demonstrates (through the information specified on the IEP) that these needs must be met in order for to learn. Without these interventions, would be unable to make meaningful educational progress.

The IDEA mandates that “to the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled.” 20 U.S.C. § nd 1412(a)(5)(A); P. v. Newington Board of Education, 546 F. 3d 111 (2 Cir. 2008). Children with disabilities may not be removed from the regular educational environment unless "the nature or severity of the disability of a child is such that education in regular

Please refer to footnote 3 herein. classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(a)(5)(A). In Newington, the Second Circuit held that in determining whether a student has been placed in the “least restrictive environment” involves “a flexible, fact-specific analysis, considering whether, with the aid of appropriate supplemental aids and services, education in the regular classroom may be achieved, and, if not, whether the school has included the student in regular classes, programs, and activities to the maximum extent appropriate.” 546 F.3d at 113. The Second Circuit adopted the Third Circuit’s two-pronged test (Oberti v. Board of Education, 995 F.2d 1204 (3rd Cir. 1993)), and described the test as follows: first, whether education in a regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for the child. This first part of the analysis includes consideration of: (a) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (b) the educational benefits available to the child in a regular class (with appropriate supplementary aids and services) as compared to the benefits provided in the special education class; and (c) the possible negative effects of the inclusion of the child on the education of the other students in the class. If, based upon the consideration of these factors, the school district properly removed the child from the general education classroom and placed the child in a special education class, the court moves to the second prong of the test: whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate. 546 F.3d at 120 (internal citations omitted). Underlying this analysis is the understanding that “[w]hile including students in the regular classroom as much as is practicable is undoubtedly a central goal of the IDEA, schools must attempt to achieve that goal in light of the equally important objective of providing an education appropriately tailored to each student’s particular needs.” 546 F.3d at 122.

Here, the CSE appears to have considered the above factors. The CSE created an IEP that sets forth “supplemental aids and services” to support in the general education environment. can manage in a general education environment—but only if the academic management and social/emotional interventions specified on his IEP are implemented in the classroom. In the proposed classroom, he would not receive all the interventions (as described above) specified in his IEP. As a result, in this . In addition, his presence (

The parent contends that the Department did not provide a FAPE because parent training and counseling was not offered to him. School districts in New York are required to provide parents of children with “ . . . for the purpose of enabling parents to perform appropriate follow-up intervention activities at home.” 8 N.Y.C.R.R. § 200.13(d). in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child’s individualized education program.” 8 N.Y.C.R.R. §200.1(kk). Failure to include parent training on an IEP does not result in a denial of FAPE. Application of a Child with a Disability, Appeal No. 11-032 at p. 20. See also M.M. and H.M. v. New York City Department of Education, 583 F. Supp. 2d 498, 509 (S.D.N.Y. 2008). There is another concern, however—there does not appear to be parent training and counseling available to s parents at the placement offered by the Department for . In the various Southern and Eastern District cases involving failures of the Department to provide parent training and counseling, the Department (while its CSEs did not specify parent training and counseling on the children’s IEPs) did make this service available to parents as part of the programs at the recommended placements. See, e.g., R.K. v. New York City Department of Education, 2011 U.S. Dist. LEXIS 32248 at 70 (E.D.N.Y. Jan. 21, 2011). In this instance, failure to specify parent training and counseling on A.’s IEP and then failure to provide parent training at the recommended placement did not result in a denial of a free appropriate public education to A. As the court noted in R.K., “while each regulatory violation may not in isolation deprive a student of a FAPE, the Court must assess all of the alleged deficiencies collectively to determine whether the IEP ‘as a whole’ was sufficient” and held that the failure to provide adequate therapy and parent training and counseling “not only violated legal requirements, but, when taken together with other flaws, constituted significant deficiencies that deprived [the child] of a FAPE.” 2011 U.S. Dist. LEXIS 32248 at 74 (emphasis in original). Here, the CSE included a variety of necessary related services and special education interventions on ’s IEP. The lack of parent training in these circumstances, as indicated in the above-cited cases, does not rise to the level of a deprivation of FAPE to . The lack of the availability of needed academic and social/emotional management needs in the placement proposed for does, however, rise to the level of a deprivation of FAPE.

The evidence presented at the hearing does not establish that the Department offered a free appropriate public education for the 2011-2012 school year. As a result, the Department prevails with respect to the first prong of the Burlington/Carter analysis.

II. The Appropriateness of

The parent bears the burden of proof concerning the appropriateness of Aaron for Cole. See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2nd Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided at addressed identified special education needs. See G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs . . . . To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.” Frank G., 459 F. 3d at 364 (emphasis added).

requires a school environment in which his , , difficulties are addressed. addresses ’s needs by providing him with a classroom staffed by two certified special education teachers who support his learning, provide sufficient adult supervision to ensure that he remains focused on his class work, and provide redirection, prompting and visual and verbal cues to him. As Ms. explained, the class is both “very language based”—with the teachers for the students throughout the day—and at the same time “visuals” are employed. Ms. testified that she uses which engage . She also employs graphic organizers and checklists to assist , in processing information, and in expressing himself.

Most importantly for , his are addressed though opportunities for movement (to address the sensory-seeking component of his regulation needs) and explicit sensory tools. these throughout the school day—and they are provided to him in the classroom. He can satisfy his need for movement through whole body breaks directed by Ms. , use of a “bouncy ball” to sit on, and an individual body break plan created for him by Ms. Schimmerling and the occupational therapist. Ms. also permits, yet created boundaries for, his pacing. Ms. developed an individual behavior chart for to target and improve two specific : . There is also a school-wide behavior plan in place. has responded positively to these various interventions.

provides with small group instruction for reading and math. Students are functionally grouped for these subjects and instruction is individualized. Ms. uses the reading method, and for writing uses the New York State standards. has benefited from reading, math and writing instruction at . He has also benefitted from the program.

has improved his expressive language through Ms .

provides with the related services of , and counseling. The also pushes into the classroom to engage in with the students. His teachers and therapists meet every other week to collaborate and discuss students’ needs. has benefitted from all these . He is supported, particularly, in the area of his , is available for learning, and has learned.

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at was appropriate for .

III. Equitable Considerations

With respect to the third Burlington criterion, whether equitable considerations support the parent’s claims, the evidence establishes that the parent cooperated with the CSE by attending CSE meetings, communicating with Department personnel, exploring a variety of Department placements over the past few years, and visiting the proposed placement.

Therefore, for all the above reasons, it is ordered that:

The Department of Education shall reimburse the parent for the tuition paid to the for enrollment for the period from September 1, 2011 through and including June 30, 2012. The amount of reimbursement shall not exceed $ and shall be paid by the Department within fifteen business days of receipt from the parent of proof of payment and proof of attendance. Dated: March 19, 2012

______________________________

Impartial Hearing Officer

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.html

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 23, 2012

DEPARTMENT OF EDUCATION

1 DOE Individualized Education Program, 5/27/10, 16 pages 2 DOE Individualized Education Program, 2/3/11, 19 pages 3 DOE Minutes of Meeting, 2/3/11, 2 pages 4 DOE Final Notice of Recommendation, 7/19/11, 1 page 5 Reports, various, 13 pages 6 DOE Observation, 12/13/10, 2 pages 7 Notice and Request for Transportation, 8/24/11, 2 pages 8 Letter from Parent to CSE, 9/27/11, 1 page

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 14, 2012

PARENT

A Parent Letter to CSE, 7/26/11, 1 page B Fall Report, November 2011, 9 pages C , October 2011, 2 pages D Plan, October 2011, 2 pages E Therapy Plan, 2 pages F Contract, 1/27/11, 2 page G Impartial Hearing Request, 10/17/11, 7 pages H Mid-Year Report, 2/12, 11 pages I Class Profile-Class 202/T03, undated, 2 pages

IMPARTIAL HEARING OFFICER

I Email to Parties re: Extension, 1/4/12, 1 page II Form Emailed to Parties re: Extension, 1/23/12, 1 page

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 5, 2012

IMPARTIAL HEARING OFFICER

III Email to Parties re Extension, 2/28/12, 1 page IV Transcriber’s Notes, 2/15/12, 6 pages

Footnotes

[1] Handwritten material on page 5 of the IEP is difficult to read. Counsel for the Department represented that she provided the most legible copy of the document available. The illegible and unreadable portion (which is unreadable due to poor handwriting rather than a poor copy of the page) in the middle of the page is not considered in this decision. It would be unreasonable to invalidate an entire IEP on the grounds that one sentence is unreadable, particularly where, as here, the IEP is detailed and reflects extensive discussions at the CSE meeting.

[2] Both school districts and parents can seek to convene a CSE meeting at other points during the school year.

[3] The CSE did not consider nor recommend a assessment or a behavior intervention plan for Since the parents did not raise this issue in the hearing request, I do not address it in this decision.