NY IHO #2012-ih-498: New York City...

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FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 16, 2012

April 30, 2012

June 8, 2012

Record Close Date: June 22, 2012

Hearing Officer: Stephen B. Haqken, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 16, 2012

Attorney — Student

Parents

Attorney — DOE

Assistant Principal (via telephone) — DOE

Special Ed Teacher (via telephone) — DOE

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

Attorney — Student

Parents

Clinical Neuropsychologist (via telephone) — Student

Head (via telephone) — Student

Teacher (via telephone) — Student

Attorney — DOE

Special Ed Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 8, 2012

Attorney — Student

Parents

Attorney — Student

Attorney — DOE

INTRODUCTION

This hearing was requested on November 16, 2011 by the parents, and (“PARENTS”), of ., the student (“STUDENT”). The hearing was requested, pursuant to the Individuals with Disabilities Education Act (“IDEA”),20 U.S.C §1415(f) and 1412(a)(10)(c), §504 of the Rehabilitation Act (504) and the United States Supreme Court decisions Burlington School Committee v. Department of Education, et. al., 736 F.2d 773 (1st Cir. 1984, aff'd at 471 U.S. 359, 105 S. Ct. 1996, 556 IDELR 389 (1985) (BURLINGTON) and Florence County School District v. Shannon Carter, et. al., 510 U.S. 7, 114 S. Ct. 361 (1993) (CARTER), to have the Department of Education (“DOE”) pay tuition reimbursement to the (“ ”) for the 2011-2012 school year and the recovery of all related fees and disbursements as permitted by relevant statute.

I was appointed to hear the matter by the Department of Education of the City of New York (“DOE”). A subpoena hearing was scheduled for 1/11/12 but cancelled when the DOE withdrew its request for a hearing. On 1/17/12 a request for an amendment to the due process complaint was consented to the by the DOE and the 2/3/12 hearing was cancelled as a new resolution period commenced. Hearings were held on 4/16/12, 4/30/12, and 6/8/12 pursuant to IDEA at 20 U.S.C. §1415(f) and pursuant to §504. The actual record closing date was 6/22/12.

BACKGROUND

, in the at the for the 2011-2012 school year. Ex. 1-3. On December 7, 2010 the DOE convened an IEP meeting to develop an IEP for STUDENT for the 2011-2012 school year. STUDENT was classified as (Ex. 3-1) and he was recommended to attend a class for 10 months with related services of (“ ”), and a . The IEP addressed STUDENT’S academic functioning and learning characteristics, his performance, and his health and physical needs. There were accompanying management needs and goals. The IEP also included a (“ ”). On August 16, 2011, the DOE sent STUDENT’S parents a Final Notice of Recommendation (“FNR”) recommending PS 126.

On 8/24/11 PARENTS filed notification of their intent to unilaterally enroll STUDENT at if the DOE failed to remedy what they believed were defects in the IEP which were included in a letter sent to the DOE. EX. 1-3.

On 9/20/11 the PARENTS sent a letter to the DOE rejecting the offered placement at PS 126 and detailing the reasons for the rejection. Ex. G.

STUDENT was placed at AARON as PARENTS contend that the DOE failed to offer him FAPE on procedural and substantive grounds. STUDENT began attending in September 2012. The parents filed a due process complaint on October 18, 2011 and filed an amended complaint on January 12, 2012. The complaint requests reimbursement for for the 2011-2012 school year..

POSITION OF THE PARTIES

DOE

The DOE provided Student with a FAPE. There was a duly constituted IEP team. The team had a plethora (sufficient amount) of documents for the IEP meeting. s classification was changed to . The parents’ Neuropsychological evaluation recommends and everyone agreed with this classification. Related services and related service goals were properly provided. ’s academic functioning was discussed at the IEP meeting. The IEP also contains a number of measurable academic goals and they were discussed at the meeting. As to performance: to address these areas of need, related services were recommended in a group to “…work(ing) on increasing eye contact and increase(ing) turn taking, answering questions that were asked directly, and to try and engage in more than a one-exchange conversation.” does not present with significant health concerns but his difficulty with motor skills, attention and sensory needs are indicated on the IEP. If had attended a DOE school for the 2011-2012 school year, a transition plan would have been developed in conjunction with the new school.

The DOE met its FAPE obligations when it developed the December 2010 IEP. Exhaustion begins at the IEP meeting. Parents must exhaust administrative remedies before filing a suit. The DOE need not show implementation of the IEP because the student did not attend the recommended school. FAPE is relevant to the first day of school only at and the recommended class. The parents’ concerns are speculative. The DOE provided with a FAPE, therefore Prongs 2 and 3 are not to be considered.

PARENTS

was denied a FAPE because the 12/7/10 IEP is procedurally and substantively flawed, and expired on 12/21/11. The CSE’s 12/7/10 recommendation could not provide with the attention and educational support that he requires. The 12/7/10 IEP failed to contain an FBA or adequate BIP. The 12/7/10 IEP team failed to draft a transition plan for . The 12/7/10 IEP expired and no annual review occurred, leaving without a valid IEP for the 2011-2012 school year. No appropriate placement was offered to for the 2011-2012 School Year, thereby denying him a FAPE. is an appropriate placement for the STUDENT. Equitable considerations favor the PARENTS’ request for tuition.

ISSUES ADDRESSED AT THE HEARINGS

Was the STUDENT offered a FAPE?

Was the PARENT'S placement of the STUDENT appropriate?

In whose favor were the equities in the case?

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Legal Framework and Standard The I.D.E.A.

The I.D.E.A. mandates that participating States provide students with disabilities FAPE. FAPE requires special education and related services tailored to meet the unique needs of a particular student and reasonably calculated to enable a student to receive educational benefits. Board of Education v. Rowley, 102 S. Ct. 3034, 3037-38 (1982). The law expresses a strong preference for students to be educated to the maximum extent appropriate with non-disabled peers and requires that students be segregated only when the nature or severity of the disability is such that education in regular classes cannot be achieved satisfactorily. Walczak v. Florida Union Free School District, 142 F.3rd 119 (2nd Cir. 1998).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth annually in a written IEP which states present levels of performance, annual goals, specific services to meet those goals, the extent to which the student will participate in regular education, transition services needed for when a student leaves a school setting, the initiation date and duration of services, and objective criteria for determining whether goals and objectives are being achieved. Walzcak, supra at 122.

Parents play a significant role in the IEP process. They must be informed about and consent to evaluations and have the right to an independent educational evaluation of their child. They are members of the IEP team. (Schaffer v. Weast, 126 S. Ct. 528532 (2005). Moreover, parents' participation at IEP meetings must be meaningful. Deal v. Hamilton County Board of Education, 392 F. 3d, 840, 853 (6th Cir. 2005). Parents must also be given prior written notice of any changes to the IEP and notice of procedural safeguards, including the right to an impartial due process hearing. Schaffer, supra 126

S. Ct. at 532.

Adequate compliance with the procedures prescribed by the IDEA will in most cases satisfy what is required substantively in an IEP. Schaffer, supra 126 S. Ct. at 532 citing Rowley at 206; M.S. v. Board of Education of the City School Districts of Yonkers, 231 F. 3rd 96, 102 (2d Cir, 2000). Following Schaffer, the New York State legislature enacted Chapter 583 of the Laws of 2007 (Chapter 583) which provides that the school district bears the burden of proof with respect to the appropriateness of its recommendation.

When determining the appropriateness of a school district IEP recommendation, Congress now requires that hearing officer render a decision on substantive grounds based on a determination of whether the child received FAPE. Where a procedural violation is alleged, the hearing officer may find that a child did not receive FAPE only if the procedural inadequacies impeded the child's right to FAPE, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. 20 U.S.C. section 1415 (f)(2)(E).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her part, if the services offered by the board of education were inadequate or inappropriate, the services selected the parent were appropriate, and equitable considerations support the parent's claim. (CARTER). In CARTER, the Court found that Congress intended retroactive reimbursement to parents by school officials, as an available remedy in a proper case under IDEA. "Reimbursement merely requires (a district) to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP." CARTER at 370-71. §504 Legal Standard §504 of the Rehabilitation Act (29 U.S.C. 794[a]) states: "No otherwise qualified individual with a disability…shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."

As a threshold matter a person is protected under 504 if he or she is qualified person with a disability. A qualified person with a disability is one who has a physical or mental impairment which substantially limits one or more of such person's major life activities. 29 U.S.C. 705(20)(B); 42 U.S.C. 1202(2).

To demonstrate disability it must be shown that the person suffers from a physical or mental impairment, has identified an activity claimed to be impaired and establish that it is a "major life activity", and show that person's impairment substantially limits the major life activity identified. Colwell v. Suffolk County Police Dept., 158 F 3rd 635, 641 (2d Cir. 1998).

With respect to the provision of educational services, 504 requires recipients of federal funds to provide disabled students with a FAPE (34 C.F.R. 104.33(a). FAPE is defined similar to FAPE defined in I.D.E.A. regulations (34 C.F.R. 300.17) as the provision of regular or special education and related services that are designed to meet individual needs of handicapped persons as adequately as the needs of non-handicapped persons are met, 34 C.F.R. 104.33(b); Scruggs v. Meriden Bd. Of Educ., 2007 WL 2318851 at pg. 9 (D. Conn. August 10, 2007). However, the requirement for an IEP under the I.D.E.A. in order to provide FAPE is not required for FAPE under 504.

A party asserting claim of disability discrimination under 504 must demonstrate the student is disabled, the student is otherwise qualified to participate in school activities, the school receives federal financial assistance, and the student was excluded from participation. 504 requires a demonstration that the School District acted with bad faith or gross misjudgment. Intentional discrimination may be inferred when a school district acts with gross negligence or reckless indifference in depriving a child of access to FAPE. See Gabel ex rel L.G. v. Bd. of Education, 368 F. Supp. 2d 313, 334-336 (S.D.N.Y. 2005); see also, Scaggs v. New York State Department of Education, 2007 WL 1456221 at p. 16-17 (E.D.N.Y. May 16, 2007). Parents of a child alleging disability discrimination by a school district pursuant to 504 bear the burden of proof. Rothschild v. Grottenthaler, 907 F. 2d. 286 (2d Cir. 1990).

The legal standard applicable to a request for reimbursement for educationalServices includes: (1) the services offered by the Board of Education are inadequate or Inappropriate. A Free Appropriate Public Education was not offered. (Prong 1); (2) the services selected by the parents are appropriate (Prong 2); and (3) equitable considerations support the parent’s claim (Prong 3). (Florence County School District v. Carter, 510 U.S. 7 (1993); School Comm. Of Burlington v. Department of Educ. Of Mass. 471U.S. 359 (1985).

A determination of appropriateness of a unilateral placement is made by considering whether the placement is reasonably calculated to enable the child to receive educational benefits and likely to produce progress, not regression. The test for whether a parent’s placement is appropriate is “not perfection”. Rather the inquiry must focus on whether the placement is an appropriate school designed to address the child’s special education needs.

The fact that the placement chosen by the PARENT is not in a school approved by the New York State Education Department is not dispositive in an award of reimbursement to the parent. PARENT'S unilateral placement will be reimbursable even if the placement is not in the child’s least restrictive environment. The Supreme Court held that a child need not have ever attended a public school in order for parents to be eligible for special education services and tuition reimbursement when the District fails to offer FAPE. A private school placement does not have to conform to an IEP and thus does not have to provide the related services recommended therein. Parents "need not show that a private placement furnishes every special service necessary to maximize their child’s potential.”; Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a FAPE as defined by 20 U.S. section 1401(9). An appropriate private placement need not meet state education standards or requirements. PARENTS may not be subject to the same mainstreaming requirements as a school board.

Reimbursement merely requires a district to belatedly pay expenses it should have paid all along and would have borne in the first instance had it developed a proper IEP. The equities are in favor of the PARENT as it cooperated with the DOE at all times in the creation of the IEP.

When determining whether the parent’s 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). The Second Circuit has set forth standards for determining whether parent has carried their burden of proving the appropriateness of their chosen placement. Although no one factor is controlling as to whether the parent's unilateral placement meets this standard, factors such as grades, test scores and regular advancement may constitute evidence that a child is receiving an educational benefit. Courts assessing the propriety of a unilateral placement should consider the totality of the circumstances in determining whether the placement reasonably serves a child’s individual needs. Part of this includes showing that the chosen placement provides educational instruction 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. Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 (2d Cir. 2007).

Findings of Fact

Prong One

A DOE Committee on Special Education (“CSE”) is charged with providing students with a Free and Appropriate Public Education (“FAPE”). A FAPE is comprised of full evaluations, an informed review where the parent is given a meaningful opportunity to participate, an appropriate classification, an appropriate program recommendation in the least restrictive environment and a timely and appropriate site offer. 34 C.F.R. §§ 300.111, 300.116, 300.301. If the DOE offered the child a FAPE, then the parents are not entitled to reimbursement for their unilateral private school placement, no matter how appropriate the program may be. Only if it is determined that the DOE failed to provide a FAPE, the parents show that their chosen program is appropriate, and the equities favor the parents, can the parent receive an award of reimbursement for the tuition payments paid to the unilaterally chosen private school. 34 C.F.R. § 300.148(c); Application of a Child with a Disability, Appeal number 06-132.

A FAPE starts with an IEP, which must conform with the requirements set forth in 20 U.S.C. § 1414(d)(1)(A). In order to provide a FAPE, the DOE must comply with the procedural requirements of the IDEA and develop an IEP that is reasonably calculated to enable the child to obtain meaningful educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176, 192 (1982). See also Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). The DOE may be required to reimburse a parent for educational services obtained privately for a student if, as a first and necessary criteria, the services offered by the DOE are inadequate or inappropriate. See Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 (1985) and Florence County School Dist. v. Carter, 510 U.S. 7 (1993). Furthermore, it is important to note that under the IDEA, a hearing officer’s decision as to whether the student received a FAPE must be based on both procedural and substantive grounds. In evaluating whether the DOE has complied with the procedural requirements of the IDEA, a hearing officer must consider whether the alleged procedural violation either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. Jan. 9, 2007]). The IDEA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE 20 U.S.C. § 1415[f][3][E][i]. The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement" Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130; in that it is likely to provide some "meaningful" benefit. Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997). The Hearing Officer must additionally consider whether this educational program places the student in the least restrictive environment Carlisle Area School v. Scott P., 62 F.3d 520, 535 (3rd Cir. 1995).

The key questions are, therefore, both procedural and substantive. Was there a procedural violation which either 1) impeded the student’s right to a free and appropriate public education, or 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or

3) caused a deprivation of educational benefits. Substantively, is the IEP 'likely to produce progress, not regression'" and does the IEP afford the student with an opportunity greater than mere "trivial advancement" “likely to produce progress, not regression".

The DOE indicated that “on December 7, 2010, a duly constituted IEP team met and developed an IEP for . T. 24, Ex. 3. 8 N.Y.C.R.R. 200.3(a)(1). Assistant Principal of sat as the district representative. Ms. has been the assistant principal at for 6 years and she taught for 7 years with the DOE. T. 20-21. Ms. is familiar with classes through her years of experience with the DOE. T. 22-23, 86. At the time of the IEP meeting, was attending . T. 26. He had also attended during the 2009-2010 school year. T. 23-24. Ms. taught and observed . T. 23-24, 65. Also present were the individuals working with – general education teacher Ms. , Special Education certified teacher Ms. , social worker , and . T. 26-27, 86. The classroom teachers were able to discuss the role of and how the paraprofessional assisted . T. 85-86. was present as the school psychologist and a parent member was also present. T. 26, Ex. 3-2. ’s parents were present in person. Ex. 3-2. All of the individuals present had opportunities to participate at the meeting. T. 27-28.”

The DOE indicated that “numerous documents were evaluated at the IEP meeting including an report (Ex. 7), progress report (Ex. 8), progress report (Ex. 9), assessment (Ex. 10), evaluation (Ex. 13), and student progress reports (Ex. 14). These documents were discussed at the meeting. T. 30. The parents provided the Neuropsychological evaluation conducted by Dr. and the DOE used the evaluation in the development of the IEP. 8 N.Y.C.R.R. 200.5(g)(1)(vi)(a). Ms. Naim shared her interpretations of the and answered any questions pertaining to the evaluation. T. 33. ’s parents and all of the individuals working with him were able to report on his daily functioning and progress towards goals. T. 30-32.

The parents’ evaluation recommends and everyone agreed with this classification. T. 33, Ex. 13-6. The program recommendation was with related services. When discussing the rationale for the recommendation, Ms. stated that the team “

…felt that he had capacity but that he was really having a hard time making connections to the world, and that as the work was moving faster and faster and more and more students were making academic leaps, he was feeling worse and worse about himself and about his ability in the classroom. The only times that he really did speak up were in very small groups. And even though in a CTT class that's-- we try to do that as often as possible but just the nature of the class is that the same children can't always be in the small group, and everybody felt that for him to be successful he needed a smaller class size.” (T. 36-37).

A community school was recommended as the least restrictive environment (8 N.Y.C.R.R. 200.4(d)(4)(ii)) and would provide benefits in “social development.” T. 88-

89. When speaking to ’s exposure to large groups, Ms stated that “

…I do think that large groups were hard for him but not so hard that he would become not functional, and he had the para who was always with him to support him through those situations. But in the world, there are going to be times when you're in a big crowd and he'd have to have strategies to manipulate those situations as well. And if we remove those situations completely from his life, then he's never going to be prepared when he enters them. (T. 90-91).”

A paraprofessional was recommended. The with the paraprofessional was more appropriate than his then-current class in CTT because “(the team) felt that the CTT class was becoming to . As the work was becoming more demanding for him, further and further . And we were all greatly concerned about the amount of time he was getting, and we felt that a , and continuing with his full time para, would have been a more appropriate ratio for him. (T. 35-36).”

Speech, OT and counseling were recommended for . T. 34-35, Ex. 3-16. was discontinued based upon the parents’ request and the recommendations in the parents’ .

T. 34, 51-52, Ex. 13-6. were recommended to address ’s social and emotional needs. T. 45-46. Individual was recommended to work on “sight-sound correspondence, work(ing) to make connections between sounds and letters made and…WH questions.”

T. 46. was recommended to address ’s handwriting and fine motor coordination such as buttoning and zipping. T. 52, Ex. 3-10, 3-11. also presented with sensory needs that were addressed with . T. 53. There were goals incorporated in the IEP to address speech, OT and counseling. T. 56-61, Ex. 3-8 through 3-13.”

“ ’s academic functioning was discussed at the IEP meeting. T. 37-39. This information was provided by ’s then-current teachers and providers. T. 39. His deficits and areas of need were addressed through the management needs and goals. T. 38-43. To address ’s attention and distractibility, a number of strategies such as auditory/tactile redirections, preferential seating, and previewing were recommended in addition to the 1:1 paraprofessional. T. 43.

The IEP also contains a number of measurable academic goals and they were discussed at the meeting. T. 53-56, 61. 8 N.Y.C.R.R. 200.4(d)(2)(iii).”

“ present in his inability to connect with other students and engage in conversations. T. 44-45. To address these areas of need, related services were recommended in a group to “…work(ing) on increasing eye contact and increase(ing)

turn taking, answering questions that were asked directly, and to try and engage in more than a one-exchange conversation.” T. 45. A comprehensive was included in the IEP. 8 N.Y.C.R.R. 200.22(b). A was developed …after a long time of working with and trying various different things. In his first grade class the teachers did several different with him and systems where he could earn extra things that he wanted or he could get out of something he didn't want to do, and they were fairly successful. But what the teachers were finding is that he was having a really hard time participating in anything and that's where the para was really helpful to try and make everything accessible to him. So they started by looking for and there was no clear pattern, so they decided that it was really the was about distractibility and the--how slowly he moved, so that was where the focused. (T. 48).

Ms. stated that an informal “was attempted to look for patterns but there were no discernible patterns.” T. 49-50. The school used “a lot of trial and error” and the goal was to “to try and keep him on focus for as long as possible and increase the amount of steps that he could follow at a time.” T. 50. While at , the BIP and the use of a paraprofessional was successful and beneficial for . T. 47, 51.”

“If had attended a DOE school for the 2011-2012 school year, a transition plan would have been developed in conjunction with the new school. T. 74, 88. To assist in acclimating to the new school, would have had the recommended paraprofessional.

Also, at PS 126, adults are always present during transitions and could have had a peer partner. T. 113.”

“The IEP at issue in this case would have been initiated on December 21, 2010 and would have been used through December 2011. 8 N.Y.C.R.R. 200.4 (d)(2)(v)(b)(9),

200.4 (d)(2)(xi). The DOE submits that it was not necessary for an IEP to be completed in December 2011 because never attended . In fact, was attending for the 2011-2012 school year. Since he was not in a public school in December 2011, there was no need to hold an annual review. Had attended in September 2011, the December 2010 IEP would have been in place and would have been implemented. Ms. stated that an IEP meeting would have been held in December 2011 – one year after the initiation of the December 2010 meeting. T, 72-73. Ms. also stated that had , an annual review would have been held. T. 368. When Ms. described the goals in s IEP she explained how they were applicable from September 2011 through December 2011. T. 369. In December 2011 would have been assessed to determine if he met the goals and new goals or modifications to existing goals would have been made. T. 369-370.”

“Parents must exhaust administrative remedies before filing a suit. See Ellenburg

v. New Mexico Military Institute, 47 IDELR 153, 478 F.3rd 1262 (10th Cir. 2007)

(“Exhaustion begins at an IEP meeting). The purpose of this is so that the DOE can “cure” any problems. According to Ms. , there were no disagreements with the IEP recommendations voiced at the IEP meeting. T. 32, 33, 37, 61, 426-428.”

“On August 16, 2011, the DOE sent ’s parents an FNR recommending . Ex. 12.

The DOE submits that presenting testimony regarding IEP implementation and specifics regarding the school and the class was not warranted as the State Review Officer has recently held that when it is clear that the child would not have attended the school, implementation of the IEP is in part speculative. See SRO decision 12-032. did not attend PS126 during the 2012-2012 school year. In this case, it is clear that would not attend PS 126 thus the DOE submits that it need not have presented any evidence regarding the proposed class at PS126.”

“Nonetheless, the DOE presented evidence relating to and the proposed class.

However, the DOE only elicited facts and testimony relating to the first day of school only and argued throughout the hearing that any date after the first day of school is irrelevant because the child did not show up on the first day and the parent rejected the program and placement. The DOE submits that it need only show the appropriateness of the snapshot of the class of the first day because the DOE is not obligated to hold a seat for a child who does not attend and rejects the placement. See SRO decision 09-096. 12 “ The DOE presented evidence as to how would have met all of s needs and provided with a FAPE. Ms. was teaching a class at on the first day on September 8, 2011. T. 100-101. She has been with the DOE for over 20 years and is a certified Special Education teacher and a certified reading recovery teacher. T. 96-99. On the first day of school, there were five students present in Ms. ’ class. T. 102. would have been appropriately grouped academically in the class as the functional ranges of the students were pre- Kindergarten through 1st grade in ELA, Kindergarten through 1st grade in math, and approximately pre- Kindergarten through Kindergarten in writing. T. 102-107,

350, 354. Additionally, Ms. functionally grouped her students and differentiated instruction. T. 107-108, 109. Ms. stated that she was not familiar with Ex. H and she could not discuss whether or not the children on Ex. H were her students. T. 347.

However, it appears that the levels of the children attending were between and K and this was proper as ’s functional levels were between .

The SRO has held certain parental concerns regarding the DOE’s recommended placement to be speculative when the child never attended the school. See SRO 12-034.

did not attend for the 2011-2012 school year nor did he attend Ms. class. When s parents visited the school, they spoke to the teacher but they did not actually observe her teach. Also, ’s mother could not remember if she brought the IEP with her. T. 435.

Based on the above and based on the fact that did not attend for the 2011-2012 school year, the parents’ concerns about the recommended school and class are based on speculation.

According to the PARENTS, Ms. testimony” proves that the DOE committed gross procedural errors and made substantively inadequate recommendations for , thereby denying him educational benefit. Ms. ’ testimony shows that the specific recommendations effected for on 12/7/10 – like management needs, behavioral strategies, the paraprofessional, and related services – were already being used and in fact failing during his tenure at , prompting the need for an immediate CSE review.

Moreover, a number of strategies Ms. identified during her testimony, like specific goals for the paraprofessional, were not transcribed onto the IEP. Nor did the team meaningfully consider a number of the Parents’ concerns with the IEP, including the need for a transition plan. Finally, as Ms. testified, the 12/7/10 IEP actually expired in the middle of ’s 2011-2012 school year and was not intended to last for his entire second grade year without a duly constituted and comprehensive annual review. Ms. ’ testimony, from the Parent’s point of view, shows that the IEP and placement process was so procedurally flawed as to significantly impede ’s right to a FAPE, hinder the Parents’ opportunity to participate in the decision-making process, and cause a deprivation of educational benefits to .”

“Ms. Lukas testified that attended her school, , for and (Tr. p. 23). Although began his first grade year at in a CTT classroom (see Tr. p. 26), Ms. Lukas testified that s Parents soon requested a CSE review to discuss “his success in the school” and a

“neuropsych” (Tr. p. 24; see also Parent Ex. P)”. The Parent’s claim that Ms. ’ testimony and the record evidence show that, far from demonstrating ”success” in the CTT program, was and “ and his ability in the classroom” (Tr. p. 37).

In her testimony, Ms. identified specific areas of difficulty and need for , including his (Tr. p. 36), inability to function academically or socially in large groups (Tr. p. 37), difficulty with sight words and independent reading (Tr. pp. 37-38), inability to add or subtract (Tr. p. 38), and difficulty with writing, both physically and in terms of thought formulation (id.).

Ms. testified that “everything was done in a very positive way including like oh we need your help. Can you make sure the lights are on after we finish using the document camera? And everything was done as a twist to make sure that felt included and that his work was valued.” (Tr. p. 41). Due to his profound struggles in and due to the new information presented in the private neuropsychological evaluation, the Parents requested an immediate CSE review (see Parent Ex. P), at which Ms. herself was a participant.

Parents feel that, aside from conclusory statements that Ms. “saw progress” in throughout course of the , nothing in the record or exhibits suggests that the program and strategies recommended on the 12/7/10 IEP were enough to confer an educational benefit to . Instead, many of the very same supports that already had available to him during the first half of first grade were simply transcribed onto the IEP again in December (see Parent Ex. I, compare Dist. Ex. 3; see also, Tr. p. 166-167). The 12/7/10 IEP cautions that “ often seems unfocused or confused during lessons, even with these supports.”

(Dist. Ex. 3 at p. 3, emphasis added). Further, STUDENT’S mother testified about a parent-teacher conference in March 2011, when ’s 12/7/10 IEP would have been in place, and indicated that according to his teachers, was falling further and further behind his classmates and his overall performance evaluation had gone from approaching grade standards to far below grade standards. (Tr. 387). Further, the parents were informed that had started to exhibit signs of and that he had been in class. (Tr. 388).

“Additionally, a number of the strategies that Ms. spoke of during her testimony were never codified within the four corners of ’s IEP. Page 3 of ’s IEP states simply that has access to “a full time crisis management paraprofessional who helps him to be more successful during the school day.” (Dist. Ex. 3). However, the specifics of Ms. ’ testimony regarding ’s para (see e.g., Tr. p. 39 [completing work in “a one-on-one setting”]; Tr. p. 43 [“giving the para the opportunity to work with him in a small group away from the large group”]; Tr. p. 46 [“the para at recess or at lunch would sit with …and try and help him engage”]) are not specified anywhere within ’s IEP. Moreover, not a single annual goal or short term objective integrates the paraprofessional into ’s daily schedule, despite the clear need for such an individual in a public school program.

The CSE’s failure to delegate goals to the paraprofessional is unacceptable given s inadequate behavior intervention plan. As Ms. testified, s ( ) was the result of an “informal” ( ) that established “no discernible patterns”, through “trial and error”, and strategies that were “not particularly successful” (Tr. pp. 48-50). Failure to conduct an does not render an IEP legally inadequate so long as the student’s behavioral issues are otherwise addressed (A.C. ex rel M.C., 553 F.3d at 172). New York’s Southern District considers a , even in the absence of an so long as the “preponderance of the evidence”

supports that

“The CSE relied on evaluations..., observations of [the student] by DOE personnel, information provided by various service providers and [the student]'s mother regarding his behavioral needs,” and that “the CSE went through each behavior and used the information provided by [the school] to craft the IEP and BIP, incorporating those strategies that [the student] had best responded to in the past.”

(A.L. v. New York City Dept. of Educ., 812 F.Supp.2d 492, 502 [S.D.N.Y.,2011]) (emphasis added).

In direct contrast, ’s paraprofessional did not participate at this IEP meeting. (Tr. pp 67; 325). Ms. admitted that ’s paraprofessional and classroom teacher had not successfully identified what the triggers were to ’s behavior (see e.g., Tr. pp. 4850), and the CSE team’s strategies for handling ’s the , and myriad related services, were already in effect for and unequivocally not conferring benefits upon him (see, Parent Ex. I at p. 13; compare Dist. Ex. 3 at p. 3, “ often seems unfocused or confused...even with these supports”). Most importantly, ’s actual behaviors that interfered with his learning – withdrawal (Tr. p. 36), anxiety (Tr. p. 41), an inability to disengage from preferred topics (Tr. p. 42), and looking out of the windows or playing with the carpet (Tr. p. 43) – are nowhere in ’s .”

“Further, though Ms. admitted “without a doubt” that whole group exercises were “the hardest” scenarios for to navigate (Tr. p. 49), the fails completely to detail the strategies that helped to cope and benefit educationally. Ms. explained that at ,

“[ ] had a very hard time being part of the group, [so] we really used his para to support him in every way to be part of the group for short periods of time and then to get the work done in a one-to-one setting where he was much more comfortable.” (Tr. p. 39).

However, the BIP itself is tremendously vague and states only that the paraprofessional will “aid[] with focus, transitions, and follow-through;” it does not provide for small group or one-on-one meetings with the paraprofessional (Dist. Ex. 3 at p. 17). Most alarmingly, it does not specify what strategies and tools the paraprofessional used. Although the need for sensory input was a huge source of distraction for (see Tr. p. 43 “he would...engage[] in touching the carpet or anything besides what the whole group was doing”), many of the tools that had access to in PS 40 were missing from the , the IEP, and unbeknownst to the witness entirely (see Tr. p. 53, “I believe he had a cushion for a while to sit on the rug as well as in his chair. The provided tons of materials. I don’t know which ones were used with ”). If Ms. herself could not recall the sensory tools that requires to focus in the classroom, how would a new school, new teachers, and new therapists be expected to provide with educational and therapeutic benefit?

The deficiency of ’s and IEP is particularly egregious given the CSE’s failure to draft any form of transitional plan for . Although there is no requirement in the IDEA for a student’s IEP to contain a transition plan when a student changes schools (see e.g., A.L. v. New York City Dept. of Educ., 812 F.Supp.2d 492, 505 [S.D.N.Y.,2011]), New York courts have not explored the need for such a plan when a student switches school in the middle of a given school year. In the instant matter, the Parents explicitly asked the CSE to create a transition plan for their son, and do not accept Ms. blanket abrogation of the Parents’ request to create transition plans to the receiving school (see Tr. p. 74); moreover, the DOE provided no testimony that could in fact provide with sufficient transitional services. The failure to provide with transitional services on his 12/7/11 IEP is an error that did in fact rise to the level of denial of FAPE. “

“It is undisputed that ’s 12/7/10 IEP expired in the middle of the contested school year, on 12/21/11. Moreover, was not provided with a valid IEP to start the 2011-2012 school year. The failure to have an IEP in place at the start of the school year is a denial of FAPE, and particularly so in this instance where the parents put the district on notice of their errors (see Parent Ex. B).

Ms. confirmed in her testimony that ’s 12/7/10 IEP was scheduled to be implemented on 12/21/10 (Tr. p. 72). She stated that “an IEP is a – considered a one-year document so that – around the same time the following year there would be a new IEP meeting”. However, it is undisputed in the record that by the end of December of 2011, no such annual review had occurred.

More importantly, it is the Parents’ position that a new IEP should have been developed before the start of the 2011-2012 school year. (See Parent Exs. A, B).

Although Ms. testified that the Parents did not request another CSE meeting after December of 2010 (see Tr. p. 90), this plainly is not the case. On August 24, 2011, the Parents, through their attorney, provided notice to the district that “[n]o valid IEP has been created” and that “the CSE has not recommended an appropriate placement” that adequately considers ’s high distractibility, academic deficits, and need for and small group instruction (see Parent Ex. B). However, the DOE failed entirely to respond to the Parents’ notice or make any attempt to cure the deficiencies set forth therein. “

“Further, the goals on ’s IEP were to have been met by December 2011 and no new CSE meeting occurred to assess his progress towards meeting the goals or to update them to include appropriate goals to work on for the remainder of the 2011-2012 school year. (See Dist. Ex. 3-8 through 3-11). Because the DOE failed to convene an IEP meeting, was without valid IEP goals for at least half of the 2011-2012 school year.

In the aggregate, the procedural flaws in ’s IEP cumulatively denied a FAPE (see Matrejek, 471 F. Supp. 2d at 419, "procedural inadequacies that cause substantive harm to the child or his parents – meaning that they individually or cumulatively result in the loss of educational opportunity . . . – constitute a denial of a FAPE." [emphasis added];. Grim, 346 F.3d at 381, "[i]t is no doubt true that administrative delays, in certain circumstances, can violate the IDEA by depriving a student of his right to a [FAPE]"). Given these procedural and substantive inadequacies within the four corners of ’s IEP, it is readily apparent that aside from a mere change in staffing ratio, little was done by the 12/7/10 IEP team to address ’s continued and pervasive needs. The CSE was required to recommend a program with more educational support and individualization in addition to the recommendations that was already receiving, and this was not achieved by staffing ratio alone. The “ self-contained” program recommendation provided for is in fact an illusory remedy to ’s educational needs. As Dr. later testified,

“The problem with the and particularly the [program recommendations], is we don’t know what the environment is. There’s not a lot of thought into the placement. They make up the class as they get referrals from the CSE, rather than a [private school] which interviews and can place appropriately and move kids around and departmentalize them as appropriate.”

(Tr. p. 208; see also T.Y. v. New York City Dept. of Educ., 584 F.3d 412, 419 [2d Cir. 2009]).1

Despite her title as District Representative at ’s IEP meeting, Ms. has familiarity only with classroom, and based the appropriateness of the 12:1 recommendation for on her knowledge of this specific classroom (see Tr. p. 75, 76). A small class size is not the sole determining factor for ’s success in the classroom; rather, specialized instruction, individualized attention, and appropriate functional peer models are required in order for to make academic and social progress (see e.g., Tr. p. 169, 176-177). These requisite supports were patently not provided to pursuant to this 12/7/10 IEP, and as will be discussed infra, were not provided at the DOE’s recommended placement.

is the special education teacher at , the DOE’s offered placement for for the 2011-2012 school year (Tr. p. 96; Dist. Ex. 12). Ms. testified that her classroom was a “three-grade range” classroom, consisting of kindergarten, first-grade, and second-grade students (Tr. pp. 101-102). On the first day of school, Ms. had only 5 children in her classroom (Tr. p. 102). These students were years old, and chronologically in the grade (id.). All of her students were classified as “ ” (Tr. p. 108).”

“Ms. could not precisely remember the functional levels of her students on the first day of the school year; however, using the Fountas and Pinnel reading assessment, she estimated that “two were below A which is below kindergarten...One was B which is the beginning of kindergarten...one was C which is still kindergarten range, maybe towards--more towards the end, middle-end of kindergarten. And one was D which is the beginning of first grade.” (Tr. pp. 105-106). In math, Ms. estimated that “two of the students in that group were functioning high, maybe high kinder, low first...and three of them were functioning at the kindergarten level” (Tr. pp. 106-107). Communicatively,

Ms. later testified that two of her students were English language learners, and could only speak in short, two-word phrases (Tr. pp. 348-349).

Ms. explained that functional grouping happens “constantly” in her classroom (see Tr. p. 107); however, given the small class size, wide functional discrepancies, and lack of additional adult support (see Tr. p. 348), Ms. ’ testimony demonstrates that inevitably, much of her students’ work was done independently (see Tr. p. 357). For example, Ms. ’ math curriculum is such that she “presents a mini lesson to the whole group, and then the children go off to work at various centers based on the skills they need to work at.” (Tr. p. 109). In writing, her students “go off to work independently” (Tr. p. 111), and she stated that for reading, would “be going off to play sight word games with his friends.” (Tr. p. 118). This teaching methodology plainly and admittedly cannot provide with the level of direct, consistent instruction and supervision that he requires (compare, Tr. 264).”

“As ’s mother later testified, the functional levels of the students in Ms. ’ classroom would have presented a significant hindrance to academically. Ms. would only add words to her word-wall that every student had mastered (Tr. p. 400), and for some of these students, the number of mastered sight words was limited to only five (Tr.

p. 351; compare Tr. p. 399, “some months ago 's teachers at had said that he could recognize something like sight words”). Ms. admitted that in some areas, was in fact functioning higher than her students (Tr. p. 353). Accordingly, Ms. testified that would actually have to switch placements and be mainstreamed for certain subjects (Tr.

pp. 120-121, 367). Had academic mainstreaming been even remotely appropriate for , the CSE team would have not recommended a self-contained placement.”

“Additionally, Ms. stated that she would encourage “peer tutoring” and “partnership work” to help ’s distractibility issues and promote academic success (Tr.

pp. 116-117). However, it is undisputed in the record that struggles to navigate social environments independently, and that he requires direct instruction for both social and academic purposes (see e.g., Tr. pp. 255-256). Even with a paraprofessional by his side, would not be provided with necessary instruction, socially or academically, to benefit from Ms. ’ classroom setup.”

“Ms. then testified that her class would attend specials like art, gym, and music with other classes at PS 126 (Tr. p. 342-343; 398). During these times, would not have the support of a special education teacher (id.). Moreover, for art and music, would have been with as many as 27 other students from either general education or ICT pre-kindergarten classrooms (id.). The DOE cannot possibly make the argument that would have benefited from interacting with mainstream peers when these students were not even of school age. Additionally, during lunch and recess at , would be supervised by paraprofessionals only – without opportunity for social skills instruction – and in an environment with 250 other children (Tr. p. 344). As Dr. testified,

“[T]he potential thing about a community school that benefits some children is that it gives opportunities for socialization in the lunch room and recess, et cetera, which for some children is positive. For , unfortunately, any interaction--even in the classroom that I was observing-

-consistent with all the reports and what I was seeing, he withdraws. He gets overwhelmed, he gets more stuck and more inflexible, so I felt he needed to be in a very small specialized class with, you know, strong learning disability support as well as part of a small special education school in order to make appropriate progress.” (Tr. p. 177).

Even Ms. corroborated Dr. ’s testimony, as she testified that during recess at , even with the support of a paraprofessional, “would kind of walk around the edges watching other kids play” (Tr. pp. 44-45). ’s and navigating the mainstream environment at was also highlighted in the testimony from Ms. who recounted a conversation with ’s paraprofessional that hardly ate a lunchtime. (Tr. 389). The record unequivocally shows that would have never successfully navigated ’s heavily mainstreamed environment (see Tr. p. 398).”

“As an affirmative defense to their inappropriate program recommendation, the DOE may argue that since the parents rejected the placement offered before the beginning of the 2011-2012 school year, the DOE has no obligation to keep the seat open and therefore the details of the actual placement become irrelevant, making it speculative that the placement offered was not appropriate for . (See Application of the New York City Department of Education, Appeal No. 11-066). This argument is not binding, 2 and moreover, is not persuasive as it has been dismissed by Federal Courts. The Second Circuit has decided the “speculation” issue in Frank G., and found that the DOE’s argument

“turns on the erroneous assumption that parents would have to keep their child in a public school placement until it was clear that their ‘speculation’ was borne out by a wasted year of actual failure. Such a ‘first bite’ at failure is not required by the IDEA. All that is required of parents who have received an IEP for their child is that they provide the appropriate public agency with reasonable notice that they plan to ‘reject [ ] the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.’ 20 U.S.C.

§ 1412(a)(10)(C)(iii)(I)(aa)-(bb).”

(See Frank G., 459 F.3d at 372).”

“Additionally, the DOE’s “speculation” argument reflects inequitable conduct on the part of the DOE, as they are trying to use the Parents’ statutorily required 10-day Notice to support the argument that the appropriateness of the offered placement is moot.

The purpose of this statutory provision is not for Parents to renounce their child’s federally-mandated rights, but rather, "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])

action or proceeding or administrative appeal in any forum whatsoever.” (8 NYCRR §279.12(a). (emphasis added). In the instant matter, the Parents unquestionably and equitably put the DOE on Notice of their concerns and disagreements, particularly with the recommended placement, and asked for appropriate remedies (see Parent. Ex. B); however, the DOE did not assemble a new CSE team to devise an appropriate plan nor did they even respond to the notice sent on behalf of the parents.

Finally, the DOE’s speculation argument must be dismissed for greater policy reasons. The IEP is a contract, and the law is clear that school districts “do not have carte blanche to assign a child to a school that cannot satisfy the IEP's requirements.” (IDEA §§ 602[14], 612[a][4], 614[d], 20 U.S.C.A. §§ 1401[14], 1412[a][4], 1414[d]). Should the parents’ statutory notice be held to dissolve the DOE’s placement burden, then the Courts would sanction the production of IEPs with idealized lists of programs, methodologies, and services that are theoretically appropriate, but are in fact actually unavailable or practically impossible to fund or implement. New York City’s bifurcated placement process often presents a blind turn for parents suing for tuition reimbursement (see Tr. p. 75), and the Courts must preserve the parents’ right to “act at their own risk” by requiring the DOE to assign programs and schools that are reasonably calculated to confer educational benefits. “

“ is the special education teacher at , the DOE’s offered placement for for the 2011-2012 school year (Tr. p. 96; Dist. Ex. 12). Ms. testified that her classroom was a “ ” classroom, consisting of kindergarten, first-grade, and second-grade students (Tr.

pp. 101-102). On the first day of school, Ms. had only 5 children in her classroom (Tr.

p. 102). These students were old, and chronologically in the first grade (id.). All of her students were classified as “ ” (Tr. p. 108).

Ms could not precisely remember the functional levels of her students on the first day of the school year; however, using the Fountas and Pinnel reading assessment, she estimated that “two were below A which is below kindergarten...One was B which is the beginning of kindergarten...one was C which is still kindergarten range, maybe towards-- more towards the end, middle-end of kindergarten. And one was D which is the beginning of first grade.” (Tr. pp. 105-106). In math, Ms. estimated that “two of the students in that group were functioning high, maybe high kinder, low first...and three of them were functioning at the kindergarten level” (Tr. pp. 106-107). Communicatively,

Ms. later testified that two of her students were English language learners, and could only speak in short, two-word phrases (Tr. pp. 348-349). “

“Ms. explained that functional grouping happens “constantly” in her classroom (see Tr. p. 107); however, given the small class size, wide functional discrepancies, and lack of additional adult support (see Tr. p. 348), Ms. ’ testimony demonstrates that inevitably, much of her students’ work was done independently (see Tr. p. 357). For example, Ms. ’ math curriculum is such that she “presents a mini lesson to the whole group, and then the children go off to work at various centers based on the skills they need to work at.” (Tr. p. 109). In writing, her students “go off to work independently” (Tr. p. 111), and she stated that for reading, would “be going off to play sight word games with his friends.” (Tr. p. 118). This teaching methodology plainly and admittedly cannot provide with the level of direct, consistent instruction and supervision that he requires (compare, Tr. 264). “

p. 351; compare Tr. p. 399, “some months ago 's teachers at had said that he could recognize something like 75 sight words”). Ms. admitted that in some areas, was in fact functioning higher than her students (Tr. p. 353). Accordingly, Ms. testified that would actually have to switch placements and be mainstreamed for certain subjects (Tr.

pp. 120-121, 367). Had academic mainstreaming been even remotely appropriate for , the CSE team would have not recommended a self-contained placement.”

“Additionally, Ms. stated that she would encourage “ ” and “partnership work” to help ’s distractibility issues and promote academic success (Tr. pp. 116-117). However, it is undisputed in the record that struggles to navigate social environments independently, and that he requires direct instruction for both social and academic purposes (see e.g., Tr. pp. 255-256). Even with a paraprofessional by his side, would not be provided with necessary instruction, socially or academically, to benefit from Ms. ’ classroom setup.”

“Ms. then testified that her class would attend specials like art, gym, and music with other classes at PS 126 (Tr. p. 342-343; 398). During these times, would not have the support of a special education teacher (id.). Moreover, for art and music, would have been with as many as 27 other students from either general education or ICT pre-kindergarten classrooms (id.). The DOE cannot possibly make the argument that would have benefited from interacting with mainstream peers when these students were not even of school age. Additionally, during lunch and recess at would be supervised by paraprofessionals only – without opportunity for social skills instruction – and in an environment with 250 other children (Tr. p. 344). As Dr. testified,

Even Ms. corroborated Dr. ’s testimony, as she testified that during recess at , even with the support of a paraprofessional, “would kind of walk around the edges watching other kids play” (Tr. pp. 44-45). ’s distress in social interactions and navigating the mainstream environment at was also highlighted in the testimony from Ms. who recounted a conversation with ’s paraprofessional that hardly ate a lunchtime. (Tr. 389). The record unequivocally shows that would have never successfully navigated heavily mainstreamed environment (see Tr. p. 398).” CONCLUSIONS AS TO Prong One

Based on the record as indicated above, as to possible procedural violations, there does not appear to be any significant impediment to a FAPE through the process of putting the IEP together. The CSE was properly constituted and a thorough review of documents was done. All participants agreed with the STUDENT”S classification. Parents now state that the specific recommendations effected for on 12/7/10 – like management needs, behavioral strategies, the paraprofessional, and related services – were already being used and in fact failing during his tenure at , but I find insufficient evidence in the record to support that claim. Parents also claimed that the team did not meaningfully consider a number of the Parents’ concerns with the IEP, including the need for a transition plan. However, the DOE credibly indicated that if had attended a DOE school for the 2011-2012 school year, a transition plan would have been developed in conjunction with the new school. T. 74, 88. Also to assist in acclimating to the new school, would have had the recommended paraprofessional. Also, at , adults are always present during transitions and could have had a peer partner. T. 113. Parents also stated that Ms. testified, that the 12/7/10 IEP actually expired in the middle of ’s 2011-2012 school year and was not intended to last for his entire second grade year without a duly constituted and comprehensive annual review and that this was a procedural fault. However, Ms. stated that an IEP meeting would have been held in December 2011 – one year after the initiation of the December 2010 meeting. T, 72-73. Ms. also stated that had attended , an annual review would have been held. T. 368. In fact, when Ms. described the goals in ’s IEP she explained how they were applicable from September 2011 through December 2011.

T. 369. In December 2011 would have been assessed to determine if he met the goals and new goals or modifications to existing goals would have been made. T. 369-370. The parents also claim that the specific goals for the were not transcribed into the IEP; the was too vague or inadequate; there was a failure of the CSE to delegate goals to the para, and the functional classroom groupings on the first day of school were improper or inadequate.

Where a procedural violation is alleged, the hearing officer may find that a child did not receive FAPE only if the procedural inadequacies impeded the child's right to FAPE, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. 20 U.S.C. section 1415 (f)(2)(E).

Based on the record as outlined, I find nothing to show that there were significant procedural violations which impeded the child’s right to FAPE or the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education. Nor do I find deprivation of educational benefits.

From the substantive side, was the IEP likely to produce progress, not regression? I find the evidence in the record shows that the IEP would be likely to produce progress not regression and that the Student’s opportunity was greater than mere “trivial advancement” The record showed that a paraprofessional was recommended. were recommended for . T. 34-35, Ex. 3-16. was discontinued based upon the parents’ request and the recommendations in the parents’ . T. 34, 51-52, Ex. 13-6. Speech and counseling were recommended to address ’s . T. 45-46. Individual speech was recommended to work on “sight-sound correspondence, work(ing) to make connections between sounds and letters made and…WH questions.” T. 46. OT was recommended to address ’s handwriting and fine motor coordination such as buttoning and zipping. T. 52, Ex. 3-10, 3-11. There were goals incorporated in the IEP to address . T. 56-61, Ex. 3-8 through 3-13.

’s academic functioning was discussed at the IEP meeting. T. 37-39. This information was provided by ’s then-current teachers and providers. T. 39. His deficits and areas of need were addressed through the management needs and goals. T. 38-43. To address ’s attention and distractibility, a number of strategies such as auditory/tactile redirections, preferential seating, previewing were recommended in addition to the 1:1 paraprofessional. T. 43.

The IEP also contains a number of measurable academic goals and they were discussed at the meeting. T. 53-56, 61. 8 N.Y.C.R.R. 200.4(d)(2)(iii).

’s deficits present in his inability to connect with other students and engage in conversations were recommended in a group to “…work(ing) on increasing eye contact and increase(ing) turn taking, answering questions that were asked directly, and to try and engage in more than a one-exchange conversation.” T. 45. A comprehensive was included in the IEP. 8 N.Y.C.R.R. 200.22(b). A was developed …after a long time of working with and trying various different things. In his first grade class the teachers did several different behavior charts with him and systems where he could earn extra things that he wanted or he could get out of something he didn't want to do, and they were fairly successful. But what the teachers were finding is that he was having a really hard time participating in anything and that's where the para was really helpful to try and make everything accessible to him. So they started by looking for some triggers and there was no clear pattern, so they decided that it was really that the real behavior was about distractibility and --how slowly he moved, so that was where the behavioral intervention plan focused. (T. 48).

Ms. stated that an informal FBA “was attempted to look for patterns but there were no discernible patterns.” T. 49-50. The school used “a lot of trial and error” and the goal was to “to try and keep him on focus for as long as possible and increase the amount of steps that he could follow at a time.” T. 50. While at , the and the use of a paraprofessional was successful and beneficial for . T. 47, 51.

Based on the above I find as follows:

(1) That STUDENT was not denied FAPE for the 2011-12 school year;

(2) Accordingly, an analysis of Prongs Two and Three are not required.

ORDER

ORDERED that the Due Process request brought by the Parents for the 20112012 school year is denied. Dated: July 11, 2012

___________________________

STEPHEN B. HAKEN, ESQ.

Impartial Hearing Officer

SH:dl

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 APRIL 16, 2012

PARENT

A Hearing Request 10/11/11, 6 pages B Notice and Request for Transportation, 8/24/11, 2 pages C Due Process Response, 1/20/12, 3 pages D Final Notice of Recommendation 2/28/11, 1 page E Letter to 1/6/11, 1 page F Letter to 3/7/11, 1 page G Letter to 9/20/11, 1 page H P-126 Class Profile 9/15/11, 2 pages I IEP, 3/15/10, 15 pages J Enrollment Contract 2/15/11, 4 pages K Fall Report, October 2011, 9 pages L Occupational Therapy Plan, 2010/2011, 2 pages M Therapy Plan, 2010/2011, 2 pages N Mid-Year Report, February 2012, 11 pages O Update 5/7/11, 6 pages

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 1/11/12, 6 pages 2 Due Process Response, 1/17/12, 3 pages 3 IEP, 12/7/10, 17 pages 4 Consent for Reevaluation, 10/20/10, 1 page 5 Notice for Request for Reevaluation, 10/20/10, 1 page 6 Notice of IEP Meeting, 11/29/10, 1 page 7 Annual Review Plan, 12/5/10, 3 pages 8 Progress Report, 12/7/10, 1 page 9 Progress Report, 12/7/10, 2 pages 10 Assessment, 12/6/10, 1 page 11 Request for Physical Examination, 5/5/10, 2 pages 12 Final Notice of Recommendation, 8/16/11, 1 page 13 Evaluation, June & July 2010, 12 pages 14 Student Progress Reports, Various dates

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 30, 2012

PARENT

P Correspondence with , Various dates, 5 pages Q Cancelled Checks, Various dates, 5 pages

DEPARTMENT OF EDUCATION

None

New York City Department of Education, Impartial Hearing Decision