New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student‟s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: February 8, 2012

June 5, 2012

June 13, 2012

June 25, 2012

July 3, 2012

Actual Record Close Date: October 8, 2012

Hearing Officer: Edgar De Leon, Esq.

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

Attorney — Student

Attorney — Student

Parents

Parents

, CDFN 103

, School (via telephone)

, SETSS Provider (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 5, 2012

Attorney — Student

Parents

Parents

, CDFN 103

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 13, 2012

Attorney — Student

Parents

Parents

, CDFN 103

, SETSS Provider (via telephone) , Teacher (via telephone)

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

Attorney — Student

Parents

Parents

Develop. — Student

— Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 3, 2012

Attorney — Student

Parents

Assistive Tech (via telephone) — Student

Student

, CDFN 103

On November 21, 2011, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1) and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parents of (9) year old student attending a public school and the New York City Department of Education (“DOE”) District 03, regarding the student‟s special education program. After adjournments were granted on consent or for cause, the impartial hearing was held on February 8, 2012, June 5, 2012, June 13, 2012, June 25, 2012 and July 3, 2012. The parties opted to submit written closing statements that were due by July 31, 2012. (T635-6) The Parents‟ closing statement was received on or about August 14, 2012. (IHO-

1) The DOE did not submit a written closing statement. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

This case involves a ( ) year old student whom the Committee on Special Education (“CSE”) recommended be removed from a general education classroom setting with related services and supports and placed in a special education class. (See Parents‟ Due Process Complaint - “DPC”) The Parents allege that the DOE recommendation is too restrictive and that the DOE has failed to offer the student a “free and appropriate public education” (“FAPE”) for the 2010-2011 and 2011-2012 school years. (Id.) In sum and substance, at the impartial hearing, the Parents seek the following relief: (a) An experienced skilled low incidence and ACC and AT versed SETSS provider for (15) hours of direct service and (5) hours of indirect service per week, such provision of services to be provided on a push-in basis during core academic areas of instruction (e.g. ELA, Math, Science, Social Studies); and (b) Testing accommodations to permit the student to participate in the standard testing offered to all grade students; and (c) The provision of an recommended in the June, 2011 reports; and (d) accommodations for accessible materials as recommended in the private and AT RSA reports; and (e) services of ten hours per week as previously agreed to; and

(f) services to address his ; and (g) The purchase and training of staff and family and implementation of and as recommended in the reports and recommendations of the service providers; and (h) Reimbursement to the Parents for their purchases of and other supplies provided to the school and its staff; and (i) The school develops and implements with fidelity a , scheduled breaks and ; and (j) The school agrees to training of the individuals assigned to the student to become proficient in being supportive and active partners to the student in learning of his ; and (k) Meaningful training of all school staff assigned to the student; and (l) Agreement to revise the IEP goals to make them objectively measurable; and (m) Related services provided in accordance with his IEP of June 18, 2010, except as follows:

(i) ) direct as well as ( ) indirect;

(ii) ( indirect;

(iii) Summer services provided in (60) minute sessions as opposed to (45)

minute sessions. (n) Hiring of an educational inclusive education curriculum expert coach for (100)

hours over the school year to facilitate the program with direct contact with the school administration, general education and special education and related service providers as well as the family.

THE DOE‟S CASE

The DOE argues that the student is currently in a general education setting with the highest level of supports and separate from the other students in the class. (T-33) The student is in another area receiving modified instruction from a SETSS teacher with the support of a full-time paraprofessional, a and related service providers that push in. (T-34) There could be (3) to (4) people working with the student alone. (Id.) The student is not involved with the general education setting in the school. (Id.) On June 17, 2012, the student was recommended to be in a smaller class setting of with support services that were previously defined and possibly even modified to address his additional needs. (Id.)

The DOE called (5) witnesses to testify on its behalf and submitted (2) documents into evidence. The sum, substance and relevant part of the evidence presented by the DOE is incorporated in the decision below.

THE PARENT‟S CASE

The Parents argue that the student is entitled to be educated in his “least restrictive environment” (“LRE”), even if that means that the school district staff have to employ supports, aids and services to accomplish that. (T-36) The Parents do not apologize for the student requiring “ .” (Id.) A student does not have to master the regular education curriculum to earn his or her right to inclusion. (T-38)

The student clearly needs modifications to his general education curriculum for the most part. (Id.) The student, according to the DOE‟s own Individualized Education Program (“IEP”) is loved and accepted by his peers at school. (T-39 & 42) He has a . (T-41) The student has major “ ” and a that is quite significant. (Id.) He uses the device and is a . (Id.) The student‟s unjustified and unwarranted move to a setting was impermissibly predetermined by the DOE. (T-43) The Parents provided the DOE with (15) expert reports at the June 2011 IEP meeting, which the agency ignored. (T-46) The Parents also argue that the student is and in the classroom. (T-47) The CSE should be directed to reconvene to consider and to implement the Parents‟ request for relief in this case. (T-50)

The Parent called (5) witnesses to testify on her behalf and submitted (31) documents into evidence. The sum, substance and relevant part of the evidence presented by the Parent is incorporated in the decision below.

FINDINGS OF FACTS AND DECISION

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 (2005)) A FAPE includes special education and related services designed to meet the student‟s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537) However, on August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007). The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parents are appropriate and equitable considerations support the parent‟s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2nd Cir. 2005))

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 (2nd Cir. 2000)) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. of Educ. V. Rowley, 458 U.S. 176, 206-7 (1982)) The student‟s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)(1))

The parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The parents must show that the private school placement offers an educational program that meets the student‟s special education needs. (Burlington, 471 U.S. at 370 and SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-

102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-

049).

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents were appropriate, and equitable considerations support the parents' claim. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985])

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA. (Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “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 offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The Parents have also brought a claim under Section 504 of the Rehabilitation Act of 1973. It is first noted that New York State Education Law makes no provision for state-level administrative review of hearing officer decisions in section 504 hearings and a State Review Officer does not review section 504 claims. (See SRO No. 06-003, citing SRO Nos.: No. 05-108, 05-033, 03-094, 00-051, 00-010 & 99-10)

It is also important to further acknowledge the standard set forth in the Shaffer decision of the Supreme Court of the United States issued on November 14, 2005. See Schaffer v. Weast, 546 U.S. _____ (2005), Lexis 8554

The Schaffer decision holds as follows:

“We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ.

The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, III, ¶2)

Accordingly, the Parents, as the moving parties, bear the burden of persuasion in the Section 504 claim.

The Second Circuit held as follows in Fink v. New York City Dept. of Personnel, 53 F.3d 565, C.A.2 (N.Y.), 1995:

Section 504 prohibits the exclusion of an otherwise qualified individual with disabilities from participation in any federally funded program by reason of these disabilities, and discrimination against any such individual by any Executive Agency receiving federal funding. As the Act has been interpreted, it requires the employer to make a reasonable accommodation of the plaintiff's disability. See Gilbert v. Frank, 949 F.2d 637, 642 (2d

Cir.1991). It does not require the perfect elimination of all disadvantage that may flow from the disability; it does not require a lowering of standards, Southeastern Community College v. Davis, 442 U.S. 397, 413,

99 S.Ct. 2361, 2370, 60 L.Ed.2d 980 (1979), nor that the employer “make

„fundamental‟ or „substantial‟ modifications” in order to eliminate the disadvantages flowing from the disability. Alexander v. Choate, 469 U.S.

287, 300, 105 S.Ct. 712, 719-20, 83 L.Ed.2d 661 (1985). It does not require the employer to provide every accommodation the disabled employee may request, so long as the accommodation provided is reasonable. See Carter v. Bennett, 840 F.2d 63, 67 (D.C.Cir.1988).

In Stone v. City of Mount Vernon, 118 F.3d 92, C.A.2 (N.Y.), 1997, the Second Circuit defined the essential terms of “essential functions”, “reasonable accommodation” and “undue hardship” as follows:

1. “Essential Functions”

The term “essential functions,” which is not defined in the statutes themselves, is generally defined in ADA regulations promulgated by the

Equal Employment Opportunity Commission (“EEOC”) to mean the “fundamental” duties to be performed in the position in question, but not functions that are merely “marginal,” 29 C.F.R. § 1630.2(n)(1) (1996).

The regulations also provide illustrations of the reasons that a given function may be found to be fundamental to the position and examples of evidence that may be considered in making that finding:

Essential functions-(1) In general. The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position.

(2) A job function may be considered essential for any of several reasons, including but not limited to the following:

(i) The function may be essential because the reason the position exists is to perform that function;

(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or

(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

(3) Evidence of whether a particular function is essential includes, but is not limited to:

(i) The employer's judgment as to which functions are essential;

(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;

(iii) The amount of time spent on the job performing the function;

(iv) The consequences of not requiring the incumbent to perform the function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the job; and/or

(vii) The current work experience of incumbents in similar jobs. 29 C.F.R. § 1630.2(n). Plainly, the considerations set out in this regulation are fact-intensive. Usually no one listed factor will be dispositive, and the regulations themselves state that the evidentiary examples provided are not meant to be exhaustive.

2. “Reasonable Accommodation”

With respect to the term “reasonable accommodation,” the ADA sets out a nonexclusive list of different methods of accommodation encompassed by the term “reasonable accommodation,” stating that

[t]he term “reasonable accommodation” may include-

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position,... and other similar accommodations for individuals with disabilities.

42 U.S.C. § 12111(9) (emphases added). The ADA regulations state that the employer is required to provide(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

(iii) Modifications that enable a[n] .employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

29 C.F.R. § 1630.2(o)(ii) and (iii). This description too is nonexclusive; the EEOC notes that “[t]here are any number of other specific accommodations that may be appropriate for particular situations but are not specifically mentioned” in § 1630.2(o). EEOC, Interpretive Guidance on Title I of the Americans with Disabilities Act,29 C.F.R. pt. 1630, app.

at 344 (1996). An accommodation is “reasonable,” however, “only if its costs are not clearly disproportionate to the benefits that it will produce.” Borkowski, 63 F.3d at 138. (emphasis added)

As to the requirement that the requested accommodation be reasonable, “we have held that the plaintiff bears only a burden of production.”

Id.; see Gilbert v. Frank, 949 F.2d at 642. This burden “is not a heavy one.... It is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits.” Borkowski, 63 F.3d at 138. Having accomplished this, a plaintiff will have made a prima facie showing that a reasonable accommodation is available and the burden of non-persuasion will shift to the defendant. See id.; Gilbert v. Frank, 949 F.2d at 642. The defendant must then show that the accommodation is not reasonable, or that it imposes an undue hardship, which “in practice ... amount to the same thing.” Borkowski, 63 F.3d at 138 (collecting cases).

(emphasis added)

3. “Undue Hardship” In providing that discrimination includes an employer's failure to make a reasonable accommodation “unless such [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such [employer],” 42 U.S.C. § 12112(b)(5)(A), the ADA defines “undue hardship” as follows:

(A) In general The term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).

(B) Factors to be considered In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include-

(i) the nature and cost of the accommodation needed under this chapter;

(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. 42 U.S.C. § 12111(10).

We have noted that “ „undue‟ hardship, like „reasonable‟ accommodation, is a relational term; as such, it looks not merely to the costs that the employer is asked to assume, but also the benefits to others that will result.” Borkowski, 63 F.3d at 139; see also42 U.S.C. § 12101(a)(9) (purposes of ADA include providing individuals with disabilities an equal opportunity to pursue employment opportunities and reducing societal cost of dependency and non-productivity).

Finally, it is also important to note the law as it regards to the LRE. The IDEA requires that a student's recommended program must be provided in the “Least Restrictive Environment” (“LRE”). (See 20 U.S.C. § 1412[a][5][A], 34 CFR § 300.114[a][2][i] and § 300.116[a][2], 8 NYCRR § 200.1[cc], 200.6[a][1], Newington, 546 F.3d at 111, Gagliardo, 489 F.3d at 105, Walczak, 142 F.3d at 132 and Patskin, 583 F. Supp. 2d at 428)

In determining an appropriate placement in the LRE, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the general educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (See 20 U.S.C. § 1412[a][5][A], 34 CFR § 300.114[a][2][i], § 300.116[a][2], 8 NYCRR § 200.6[a][1], Newington, 546 F.3d at 112, 120-21, Oberti v. Bd. of Educ., 995 F.2d 1204, 1215 [3d Cir. 1993], J.S. v. North Colonie Cent. Sch. Dist., 586 F. Supp. 2d 74, 82 [N.D.N.Y. 2008], Patskin, 583 F. Supp. 2d at 430, Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 144 [N.D.N.Y. 2004] and Mavis v. Sobel, 839 F. Supp. 968, 982 [N.D.N.Y. 1993])

The placement of an individual student in the LRE shall "(1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home." (8 NYCRR § 200.1[cc], § 200.4[d][4][ii][b] and 34 CFR § 300.116) Consideration is also given to any potential harmful effect on students or on the quality of services that they need. (See 34 § CFR 300.116[d] and 8 NYCRR § 200.4[d][4][ii][c])

State and Federal regulations also require that school districts ensure that a continuum of alternative placements be available to meet the needs of students with disabilities for special education and related services. (See 34 CFR § 300.115 and 8 NYCRR § 200.6) The continuum of alternative placements includes instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions; and the continuum makes provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement. (See 34 CFR § 300.115[b])

To apply the principles described above, the Second Circuit adopted a twopronged test for determining whether an IEP places a student in the LRE, considering (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate. (See Newington, 546 F.3d at 119-20, North Colonie, 586 F. Supp. 2d at 82, Patskin, 583 F. Supp. 2d at 430, Oberti, 995 F.2d at 1217-18 and Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048-50 [5th Cir. 1989]) A determination regarding the first prong, (whether a student with a disability can be educated satisfactorily in a general education class with supplemental aids and services), is made through an examination of a non-exhaustive list of factors, including, but not limited to "(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class." (See Newington, 546 F.3d at 120, North Colonie, 586 F. Supp. 2d at 82, Patskin, 583 F. Supp. 2d at 430, Oberti, 995 F.2d at 1217-18 and Daniel R.R., 874 F.2d at 1048-50)

The Court recognized the tension that occurs at times between the objective of having a district provide an education suited to a student's particular needs and the objective of educating that student with non-disabled peers as much as circumstances allow. (See Newington, 546 F.3d at 119, citing Daniel R.R., 874 F.2d at 1044) The Court explained that the inquiry is individualized and fact specific, taking into account the nature of the student's condition and the school's particular efforts to accommodate it. (See Newington, 546 F.3d at 120) If, after examining the factors under the first prong, it is determined that the district was justified in removing the student from the general education classroom and placing the student in a special class, the second prong requires consideration of whether the district has included the student in school programs with nondisabled students to the maximum extent appropriate. (See Newington, 546 F.3d at

120) The Second Circuit left open the question of whether costs should be taken into account as one of the relevant factors in the first prong of the LRE analysis. (See Newington, 546 F.3d at 120)

The Parents challenge the student‟s IEP dated June 20, 2011. (P-B) The student‟s CSE team on that date was composed of a Parent Member, the student‟s paraprofessional, the Parent, a Special Education Administrator, the Principal, the Assistant Principal, a General Education Teacher, the , an , the SETSS teacher, the , two SLP/ Specialists, an Professional and the Social Worker. (Id.)

Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school ;

(5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school ; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school , the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school , if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student. Based on the record, I find that the student‟s CSE team on June 20, 2011 was properly composed.

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09). Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The student‟s mother credibly testified that she provided the DOE with approximately (15) reports concerning the student. (T-549, P-H, P-K, P-M & P-O, see also P-I, P-J, P-L, P-N, P-Q, P-R, P-S, P-T & P-U) These reports were not discussed at the CSE team meeting. (T-555-6)

The student‟s Psychological Summary is dated April 25, 2011. (P-H) The report states that the student clearly demonstrates social interest and a desire to engage with others. (Id.) Standardized testing is said to be appropriate for the student only with testing accommodations and appropriate federal and state testing tools permitted. (Id.) The student requires strong and skilled supports and benefits from access to the general education curriculum, in an age appropriate general education classroom. (Id.) The student should receive daily integrated “ and AT.” (Id.) He should also continue to receive the following services both in and out of school: SETSS, skilled , paraprofessional support, “ services, systems, devices, software and supports. (Id.) The student is also said to require , flexibility in and in setting. (Id.)

The student‟s and Report is dated May of 2011. (-P-I) The report states that the student‟s progress has been more consistent and his ability to maintain mastered skills has improved with daily . (Id.) session is recommended for the student. (Id.)

The student‟s Progress Report dated May 23, 2011 was also received in evidence. (P-J) The report states that the student has demonstrated an improved capacity to follow directions and models, respond directly and appropriately to questions, to be self-motivated, initiate, and relevant within the context of the interaction and to sustain attention to teacherselected activities. (Id.) Among other things, the report recommends use of standard and tactile math materials and strategies, , supports and model language on the dedicated “ ” formats in real time, as well as increased emphasis on communication with an audience as an integrated element of his instruction. (Id.)

The student‟s report is dated June 1, 2011. (P-K) The report notes that the student‟s eye contact has improved. (Id.) The report further notes that the student continues to make consistent gains this year in his ,

. (Id.)

The student‟s is dated June 2, 2011. (P-L) It states that it is a necessity for the student to continue to receive 24-hour individualized nursing services. (Id.) The report notes that the student has had , two in June of 2007, and has unpredictable bouts of dumping and time. (Id.) School s are said not to be in the position to provide the kind of and care that the student needs. (Id.) The student is said to have made significant developmental gains when provided with the appropriate skilled support systems, and . (Id.) It is recommended that these services be sustained throughout the school day. (Id.)

The Student‟s Progress report for his IEP is dated June 6, 2011. (P-M) The report states that the student is able to accept challenges , respond to demands placed on him, transition from varying activities with various adults, in multiple settings (school, home, therapy sessions, etc.) and engages and connects to many different people (family, teachers, students, therapist, etc.) on a daily basis. (Id.) Among other things, the report recommends that the student continue in general education with same-age peers, continue and possibly increase SETSS services. (Id.)

The Student‟s Progress Report is dated June 10, 2011. (P-N) The report states that there has been growth in the student‟s engagement, and . (Id.) The student is said to have benefited from peer support and high expectations of teachers and . (Id.) The report says that the student‟s team can be most supportive and by updating his “ ” systems for each classroom unit, then providing him opportunities for practicing and repletion with variation. (Id.)

The student‟s Report is dated June 14, 2011. (P-O) The report states that the student‟s current general education setting is servicing his needs at this time and he is benefiting from his exposure to typical peers yet he continues to require skilled direct teaching for a child with complex needs. (Id.) The student continues to need a significant amount of skilled and supports from skilled professionals who can further his skills to with his non-the general education classroom. (Id.) The report states that the student is making tremendous progress and needs to continue to be supported. (Id.)

The student has another Report dated June 15, 2011. (P-P) The report recommends the following for the student‟s 2010 and 2011 school year: (1) Replacement for the

The student‟s Special Education Tutor Report is dated June 15, 2011. (P-Q) The reporter notes that she has been working with the student for over (4) years as a weekend tutor and she has seen in his skills, especially in this last year. (Id.) She uses a variety of with the student. (Id.)

The student has a second report dated June 17, 2011. (P-R) The report asserts that the implementation of services is “ ” and supporting the student‟s potential and is critical for him to access the general education curriculum. (Id.) The report recommends that the student‟s services from his June 18, 2010 IEP should be continued and adjusted and paraprofessional aide, a supportive inclusive classroom environment, extended day (dual mandated – school and home services), team collaboration and planning, extended school year and accommodations for testing. (Id.)

The student‟s ( ) Report is dated June 18, 2011. (P-S) The report notes progress on the student‟s 2010-2011 communication and literacy goals. (Id.) The student is said to have demonstrated significant improvements during the 2010-2011 school year on his / goals. (Id.) He is also said to be benefiting from in his general education classroom with typical in supporting the student‟s . (Id.)

The student‟s Special Education Teacher Report is undated and states that the student continues to show steady progress academically, . (P-T) His is also undated and strongly recommends an for the student. (P-U)

It is important to note that the DOE did not submit any evaluations into evidence and did not formally evaluate the student on its own arguing that the student could not be assessed with standardized tools. (T-72 & 550) What‟ more, the student‟s mother testified that the private reports she submitted were not used at the IEP meeting and the DOE Principal told her that she had not read these reports. (T-555-6 & 567-8)

Nevertheless, the student‟s June 20, 2011 IEP provides all of the services requested by the student‟s evaluations, except that it changes the student‟s placement. (P-B) The June 20th IEP notes that the student is in the grade. (Id.) He is well liked by his peers, but said to have difficulty keeping pace with peers in . (Id.) The IEP states that the student‟s “Academic Management Needs” include an ( , ), (including services to update devices to meet the student‟s classroom needs and weekly consultation between the student‟s teachers and related service providers. (Id.)

The student does not require behavior interventions according to the IEP. (Id.) The IEP recommends that the student receive , a paraprofessional for and , a full-time individualized skilled , generating , software and other services. (Id.) The IEP also designates the student for a 12-month school year and states that he can participate in all school related activities. (Id.) Alternate assessment is said to be necessary to measure the student‟s progress toward his adapted curriculum, as his academic performance is at no more than the kindergarten level. (Id.) He requires Special Transportations Accommodations/Services like a on the and a . (Id.) The student does not require a Behavior modification Plan (“BIP”).

The IEP does not state the student‟s promotional criteria as “standard” or “modified.” (Id.) The IEP states that a reduction of services for the student in not appropriate. (Id.) The school team believes that the student‟s learning needs are not being adequately met in a general education setting and recommended the at his current school where the staff and students know him and he is a part of the larger school community. (Id.) Finally, the IEP notes that the student‟s family wants him to continue in his general education setting with increases in the amount SETSS and related services. (Id.)

The Regulations of the Commissioner of Education define both “change in program” and “change in placement” (see 8 NYCRR 200.1). A change in program means a “change in any one of the components of the individualized education program of a student as described in section 200.4(d)(2) of this Part.” (See 8 NYCRR 200.1[g]) Here, the DOE clearly changed the student‟s program from a general education setting to a setting in special class in a specialized school with SETSS services.

In developing the placement 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 student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations. (See 34 C.F.R. §§ 34 C.F.R § 300.116, 300.324[a] and 8 NYCRR 200.4[d][2]) Here, the only evaluations to be considered support the student‟s continued placement in a general education setting. (supra) The DOE did not create or offer and evaluations that support a change in the student‟s placement.

What‟s more, the conclusory statement in the IEP that the student‟s “…needs are not being met adequately in a general education setting are belied by the evidence. The DOE‟s own IEP notes that student has made progress in his general education setting and is anticipated to meet various goals. (D-2) As stated above, the IEP indicates that the student “…can participate in all school related activities.” (Id.) The evaluations obtained by the Parents support the student‟s receipt of the services requested and his continued placement in a general education setting. (supra) Additionally, the record is replete with examples of the student‟s progress in his current general education setting. (T-80, 174-5, 203, 230, 367, 373, 382-5, 388, 444-5, 483-5 & 614)

The general education setting also offer the student the LRE in that the evidence shows he can be satisfactorily educated in the general classroom, with the use of supplemental aids and services and mainstreams the student to the maximum extent possible. (See Newington, 546 F.3d at 119-20, North Colonie, 586 F. Supp. 2d at 82, Patskin, 583 F. Supp. 2d at 430, Oberti, 995 F.2d at 1217-18 and Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048-50 [5th Cir. 1989]) The record does not evidence any negative effects on the education of the other students in the general education class. (Id.) Instead, the record shows that the student is well liked by his peers. (P-B & D-2) In fact, there was testimony that the student was being kept separate from the other students in the general education class. (T-252, 401 & 531)

Considering the Parents‟ Section 504 claims, the evidence shows that the student is recommended and qualified to remain in a general education class. (supra) The services the student is receiving are many, but there is nothing in the record to sustain a finding that they are “unreasonable” or pose an “undue hardship” to the DOE. (Id.) The DOE did not oppose the Parents‟ requests on these grounds, but instead, essentially argued that the student‟s needs were not being met in the general education setting. I do not agree with the DOE for the reasons stated above.

The student‟s general education placement continues to be appropriate and constitutes his LRE. The services requested by the Parents were found appropriate by the DOE as evidenced by their inclusion in the student‟s June 20, 2011 IEP. (D-2 & P-B) There is nothing in the record that sustains a finding that the Parents have not cooperated with the CSE. They provided a plethora of evaluations to the agency and attended the student‟s June 20th IEP meeting. Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parent. For all of the reasons stated herein, I find that the DOE has denied the student a FAPE for the 2011-2012 school year and that they have met their burden under Schaffer to prevail in their request. I find no basis in the record for a finding that the student was denied a FAPE for the 2010-2011 school year.

NOW therefore, it is hereby

ORDERED that the student shall remain in his current general education setting and that the DOE shall provide the student with the following services, the cost of which shall be paid by the agency upon its receipt of reasonable and satisfactory proof of services having been rendered:

(a) an experienced skilled low incidence and and versed SETSS provider for

(15) hours of direct service and (5) hours of indirect service per week, such provision of services to be provided on a push-in basis during core academic areas of instruction (e.g. ELA, Math, Science, Social Studies); and

(b) Testing accommodations to permit the student to participate in the standard testing offered to all third grade students; and

(c) The provision of an ; and

(d) accommodations for accessible materials as recommended in the private and RSA reports; and

(e) services of ten hours per week as previously agreed to;

and

(f) services; and

(g) The purchase and training of staff and family and implementation of as recommended in the reports and recommendations of the service providers; and

(h) Reimbursement to the Parents for their purchases of and other supplies provided to the school and its staff; and

(i) The development and implementation with fidelity of a , scheduled breaks and implementation; and

(j) The training of the individuals assigned to the student to become proficient in being supportive and active partners to the student in learning of his device; and

(k) Meaningful training of all school staff assigned to the student; and

(l) The revision of the student‟s IEP goals to make them objectively measurable;

and

(m) Related services provided in accordance with his IEP of June 18, 2010, except as follows:

(i)

(ii) ;

(iii) Summer services provided in (60) minute sessions as opposed to (45)

minute sessions.

(n) Hiring of an educational inclusive education curriculum expert coach for

(100) hours over the school year to facilitate the program with direct contact with the school administration, general education and special education and related service providers as well as the family.

(o) That the CSE shall forthwith reconvene to implement the above services, consider the student‟s private evaluations and produce a new IEP for the student. Dated: October 26, 2012

________________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Demand for Due Process, 11/21/11, 21 pp. B IEP, 06/17/11, 31 pp. C Final Notice of Recommendation, 6/2/11, 1 p. D Email Correspondence, 7/5/11, 3 pp. E Email from Parent to School, 3/3/09, 2 pp. F Grade Report Card, 2010/2011, 10 pp. G Grade Report Card, 2011/2012, 16 pp. H . Summary, 4/25/11, 11 pp. I Report, 5/2011, 4 pp. J Student Progress Report, 5/3/11, 4 pp. K , 6/1/11, 6 pp. L Recommendation, 6/2/11, 5 pp. M Student Progress Report, 6/6/11, 4 pp. N . Report, 6/10/11, 3 pp. O Report, 6/14/11, 3 pp. P . Report, 6/15/11, 7 pp. Q Special Education Tutor Report, 6/15/11, 3 pp. R Report, 6/17/11, 17 pp. S and . . Alt. Report, 6/18/11, 10 pp. T Special Education Teacher, Undated, 3 pp. U Recommendation, Undated, 3 pp. V Success with Common Core, Undated, 4 pp. W DOE Stand. Op. Proc. Manual, 2/2009, 305 pp. X DOE Func. Behavioral Assessment, 5/2011, 2 pp. Y . Inter. Plan, 5/2011, 2 pp. Z Subpoena to District, 2/1/12, 3 pp. AA Subpoena to , 2/1/12, 3 pp. BB IEP, 6/18/10, 23 pp.

JJ Comm. Log, 2011/2012, 63 pp. KK . Report, 3/7/12, 3 pp. LL Report, To , 9/2011-6/2012, 16 pp.

DEPARTMENT OF EDUCATION

1 Daily Schedule, 2011/2012

2 IEP, 9/8/11, 21 pp.

IMPARTIAL HEARING OFFICER

I Closing Statement – Parent, 8/14/12, 31 pp.