New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: August 11, 2011

September 7, 2011

October 3, 2011

October 17, 2011

January 17, 2012

January 24, 2012 Actual Record Close Date: February 20, 2012 Hearing Officer: Barbara J. Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 11, 2011

Attorney — Student

Parents

Attorney (Observing) — Student

Attorney — DOE

Assistant Principal- (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 7, 2011

Attorney — Student

Parents

Attorney — DOE

Special Education Teacher- (via telephone) — DOE

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

Attorney — Student

Mother — Student

Occupational Therapist (via telephone) — Student

Attorney — DOE

School Psychologist-CSE (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 17, 2011

Attorney — Student

Mother — Student

Director of (via telephone) — Student

Pathologist (via telephone) — Student

Attorney — DOE

Psychologist-CSE (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 17, 2012

Attorney — Student

Parents

(via telephone) — Student

Teacher-, (via telephone) — Student

Parent (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 24, 2012

Attorney — Student

Parents

Attorney — DOE

This is New York City case # . Over six days on August 11, 2011, September 7, 2011, October 3, 2011, October 17, 2011, January 17, 2012, and January 24, 2012, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA 2004), 20 U.S.C. Section 1415(f)(3), regarding the special education of . at the New York City Department of Education Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. , Esq. represented the New York City Department of Education (hereinafter referred to as the “Department of Education”) and Esq. from the Law Offices represented the parents. A list of witnesses who testified and documents received into evidence is attached to this decision.

PROCEDURAL HISTORY

The parents filed an impartial hearing complaint on March 28, 2011. (Ex. A) I was appointed as the impartial hearing officer in this matter on April 1, 2011. The resolution period ended on May 2, 2011, and I scheduled this impartial hearing for June 2, 2011. On May 25, 2011, the parents moved to amend their impartial hearing complaint, and I denied their motion. On May 31, 2011, the Department of Education consented to the amendment of the impartial hearing complaint, and that restarted the impartial hearing timeline. After a second resolution period, the impartial hearing was rescheduled for August 11, 2011 and the impartial hearing began. There were further adjournments with extensions of compliance upon motion due to and the attorney. As the case is solely about money, the extensions in compliance did not impact

At the conclusion of testimony, the parties decided to submit written briefs. I discussed the briefs with the parties, and I gave them a list of legal questions I wanted answered in their briefs. I then entered the list of questions into evidence as IHO-1.

ISSUE

The parties agreed that the sole issue before me is whether the parents are entitled to prospective payment of tuition for the from July 7, 2010 to April 8, 2011 when attended school there. (Tr. 12-9) As the contract requires that the parents pay for the full school year even when they withdraw their child from school before the end of the school year, the parents seek payment of the full year tuition of one hundred twenty-five thousand dollars ($125,000.).

STATEMENT OF FACTS

is now a student who has in . (Tr. 714-5) , and he was on a highly . (Tr. 518, 800) During the 2010 – 2011 school year, he was “a .” (Tr. 716)

“ . . where he's run them back and forth over a surface. He would at times just the classroom or sometimes out of the classroom where you'd . He would a lot or tap them or clap them. At times, he would On occasion, he would surface.

(Tr. 624)

“ had lots of . . . “ (Tr. 716) He displayed “a lot of . . .” and “a lot of . . “ (Tr.

426, 717-9, 732, 759-60; Ex. 25) His “ on a daily basis . . .” (Tr. 397) “On a daily basis, to focus and follow directions is variable.” (Tr. 412; Ex. 26)

“. . . that are with the unknown antecedent. When he's with you, he suddenly may be , maybe or . . . his behaviors were so spontaneous that he could be in the middle of a preferred activity which, for example, would be a he would be his as it could be.”

(Tr. 401-2)

Ms. , , testified that “(A)t times would, without a known antecedent, would become . . . “ (Tr. 387)

It was difficult for to participate . (Tr. 725) in a group setting is hindered by his ) which have limited his active participation in group settings.” (Ex. 20 at 3) participation in adaptive physical education at the was limited because of his . (Tr. 729)

language skills. “ .” (Ex. 20 at 2) He has , although he in , almost all aspects of . (Tr. 511, 619-21) using three to seven to make requests and . (Ex. 21 at 3 and 4). follows simple directions. (Ex. 20 at 3)

s academic abilities are on the level in all areas. (Ex. 23 at 3; Tr. 330-1, 737-8) Dr. director of , testified that had a “two-fold” academic challenge:

“One is engagement in the learning process. can be very difficult to fully engage, so it's important to understand how reinforcers work, to look at curriculum that's actually going to keep . The other challenge really had to do with he has- -you know, he presents with what we assume to be some challenges. He's .

He's bothered by effort across the board by all the professionals involved and probably even more from him just to stay attuned to the particular.“ (Tr. 512)

has acquired “quite a few sight words” and he has mastered some academic goals. (Tr.

731) In a December 3, 2010 email, expressed their concern about needing an additional reading program at the . (Tr. 752-3)

has developed ). “Personal care skills are a relative strength for .” (Ex. 20 at

4) . (Tr. 426) He can brush his teeth, and he independently. (Tr. 422) He can . (Tr. 423) can use a , and he was working on applying (Id.) He has not developed “ ,” such as . (Tr. 597)

The Department of Education “Committee on Special Education” (CSE) found IDEA eligible and classified his disability as It reconvened on May 12, 2010, and it developed an “individualized education program” (IEP) that offered a twelve-month program in a special education class 366) The CSE also recommended the following related services: daily individual therapy for an hour, daily individual occupational therapy for forty-five minutes, and a full-time crisis paraprofessional to address his behavioral needs. (Tr. 328-9, Ex. 10) The parents declined an offered “assistive technology” (AT) evaluation. (Tr. 375-6) The May 12, 2010 CSE meeting lasted over three hours. (Tr. 368-9)

The parties to this impartial hearing stipulated to the following facts: The Department of Education offered B. a placement to start on July 1st, 2010. At some time after July 1st, 2010, the parent requested placement at . (Tr. 11) At some time after that, the Department of Education offered the placement at P4 without a requested transition plan. (Id.) B. attended the from July 1st, 2010, to April 8th, 2011. (Tr.

12) Since then, is . (Tr. 22-4; and the parents want to continue . (Ex. 5)

On June 14, 2010, the Department of Education sent a “final notice of recommendation” (FNR) for a placement at , which is a District special education school. All of the children there have IEP’s. (Tr. 70) It is a multi-sited school, and the parents were referred to the main site on . (Ex. 7; Tr. 62) This is a large school with twenty-three classrooms, a gymnasium, a cafeteria, a school store, and an auditorium on three floors. (Tr. 64, 84-85, 118) Thirteen of the classes are classes. (Tr. 115) The School does not have a sensory gym. (Tr. 833) The Department of Education staff and agency staff provide related services in the school and use “Related Service Authorizations” (RSA’s) for additional services outside the school. (Tr. 67) The school had approximately one hundred eighty students in kindergarten through grade eight in July 2010. (Tr. 64, 69, 71)

The program at uses a mixed methodology. ’s Mother “ . . . was told that these classes have ABA discrete trials in the morning and then they follow the TEACCH method(s) with group instruction in the afternoons.” (Ex. 13 at 1) Mr. , assistant principal of , testified that the program does not use ABA “as a staple”, although some teachers have various levels of training in it. (Tr. 109-110)

The Department of Education provides professional development on language development, and other subjects for its staff at (Tr. 71-2) The staff uses a school-wide behavior program called “ ” that involves a point system and positive reinforcements. This system can be adapted for individual students. (Tr. 81, 118) In addition, school staff can conduct individual FBAs when a warrants one. (Tr. 73) Each teacher uses his or her own methods to address and there also is a crisis staff member. (Tr. 119) Mr. assistant principal, described a class for students that had a seat available for on July 1, 2010. (Tr. 77-9)

’s Mother visited on June 21, 2010, and she wrote a letter to the Department of Education rejecting this placement. (Tr. 850; Ex. D) She reported that the school lacked a with equipment for , that the school , and that the school day was not long enough for . (Tr. 832-3) Furthermore, the school used hearing, ’s Mother testified that she was also concerned about which class would attend as one class had eight higher functioning students and another had children whose ages were younger than . (Tr. 832)

The parents continued their unilateral placement of at the where he had been attending school for three years. (Ex. D; Tr. 887) The is an unapproved private day school that uses an integrated educational model to educate children with autism. (Ex. M; Tr. 502) It uses “ ) with discrete trial training in the classroom on a one-to-one basis throughout the day. (Tr. 502, 568, 711-2) is a forty-hour per week school with a staffing ratio that is throughout the day. (Tr. 720-3, 502) The School rotates teachers within the classroom frequently so that the students generalize their learning from one instructor to another. (Tr. 721-2, 724) employs both certified and uncertified teachers, and one currently certified BCBA. (Tr. 568, 708, 714, 733). is housed in a building that without an elevator. (Tr. 593) The upper school is on the , and it has a on the third floor. (Tr. 592-3) It has exercise equipment and an auditorium with bicycles and scooters on the first floor, and weight equipment in the basement. (Tr. 388, 390)

On July 1, 2010, ’s class at had six students between the ages of ten and fourteen with five teachers and a speech therapist. (Ex. 18; Tr. 544-6, 712-3) The reading and math levels of the students in the class exceeded a thirty-six month range as did their ages. (Tr. 546, Ex. 18)

In September 2010, the opened its upper school with twelve students with an age range of twelve to fifteen. (Tr. 505, 544, 713) From September 2010 until he left the School, was in class. I note that was only ten years old in September 2010, and that he turned eleven in December 2010. The range of behaviors in ’s class was “mild to intense with being the most intense.” (Tr. 738) The other students exhibited some challenging behaviors, but they did not pose a risk to others and they did not bite the way did. (Tr. 579-80, 739) Dr. testified that in September 2010 when the upper school first opened, “there was some left over circle time stuff which is not age appropriate, . . . and then that got faded out.” (Tr. 591-2)

, ’s speech therapist at the , generally worked individually with him in his classroom. (Tr. 616, 618) At those times, others students were in the classroom working with their teachers. (Tr. 620)

, ’s at the , took to various locations in the school to work with him. She conducted a number of assessments, but she did not follow standard administration procedures. (Tr. 407-8) She also repeated the same instruments within a short period of time. I find the occupational therapy assessments conducted by the to be unreliable as the scores are not valid. (Ex. 32, 33, 34)

staff kept a communication book with ’s parents, but they kept “communication with the mom always positive.” (Ex. V) ’s Father did not want ’s . (Tr. 766) There is a note that they do “NOT” (capitalized) send negative comments to the mother, but they could give them to the father. (Tr. 749) The Mother would become upset hearing a negative report of the day. (Tr. 750) I give little weight to teacher positive reports of ’s daily activities in the communications book as I find them to be unreliable. I did give weight to other statements in this document.

used various techniques to address ’s behaviors. The staff used a visual schedule and a token reward system with . (Tr. 624) They used a with him and they brought him into the for frequent breaks. (Tr. 387-8) The staff brought him there as often as five times per day depending on how he was doing that day. (Tr. 389-94, 421) The amount of time that was there varied. It may have been for five to ten minutes. Once, he was there for a forty-five minute break. (Tr. 422) ’s also took him for to use the on the first floor stage, including a treadmill and leg press, a relaxation room with a massage table, a first floor auditorium with bicycles and scooters, and weight equipment in the basement. (Tr. 388, 390)

kept a daily chart from January 3, 2011 to March 28, 2011 that indicates the frequently of ’s . (Ex. 25) There were weeks that per week, and other weeks in which it was per week. There was no discernible pattern.

Ms. the lead instructor for ’s class, testified that when ’s behaviors were:

“really really intense, it would take at least two or three therapists to help him – just help try to block or at times restrain him.” (Tr. 718)

At these times, the staff used prompts and then they used a “wrap” procedure with . (Tr. 347, 740) They would hold him from behind, wrap his wrists to the opposing hip, and hold him in that position for a couple of minutes. (Tr. 741-2, 764) Ms. referred to it as a “deep pressure” hug that she used on on a once a week or once every other week basis. (Tr. 426-7) Dr. explained that”

“wrapping” is actually you physically hold the student. It's not my favorite or the preferred. I'd rather which is you just--like if he was , you put your arm sort of so that if he brings his to , . (Tr. 597-8)

Early in the 2010 – 2011 school year, the trained its staff in “Strategies for Crisis Intervention and Procedure” (SCIP) that included the wrap procedure. (Tr. 761-2) More than one staff member used the wrap procedure on at least monthly. (Tr. 762-3) If did not deescalate his behavior in about two or three minutes, the staff member would give him a break and do it again. (Tr. 429, 772) ’s 2010 – 2011 IEP provided to this impartial hearing does not mention this wrap technique. (Ex. 23; Tr. 763, 772)

Dr. testified that the wrap procedure was not being used on . (Tr. 570) This testimony was contradicted by that of ’s occupational therapist and teacher who both described how they used the wrap procedure with . I find Dr. t’s testimony on this point not to be credible. I find that the wrap procedure was used on during the 2010 – 2011 school year.

B. was absent from the for several days each month during the 2010 – 2011 school year. (Ex. P; Tr. 761) His parents were using a passive “mercury detox” procedure in which certain foods were eliminated from his diet. (Tr. 801, 869, 875-8)

On December 22, 2010, the parents requested a public placement at in writing. (Ex. E) This is a small public school for children with autism. It has classes with six students, one teacher, and a paraprofessional (6:1:1) with students whose levels were similar to those of . (Tr. 878) The school used TEACCH and ABA methodologies. (Tr. 832) There were two seats available in this program in January 2011. (Id.) The Department of Education responded promptly and agreed to place in P4. (Ex. F at 1; Tr. 880-1; Tr. 612)

The parents then requested a three week transition plan with a schedule to ease ’s transition from the , and RSA’s for related services. (Ex. F.) The parents believed that they needed someone to show the staff at who use ABA, how to work with using ABA. (Tr. 885) The Mother testified that it was the staff that suggested this additional transition plan although she could not recall any particular individual. (Tr. 883) The letter signed by Dr. dated March 24, 2011 states:

“About 6 weeks ago, you notified us that you were going to take out of The

You asked that we developed a transition plan . . . “

(Ex. W) (emphasis added)

Dr. admitted that he suggested the transition plan although ’s Mother may have approached him about it. (Tr. 604-6, 612) He did not believe that would charge a fee to assist with ’s transition to a public school. (Tr. 610-1)

The Department of Education denied the transition plan. It is unclear whether the Department of Education would have issued the RSA’s as the parents did pursue the matter. On January 14, 2011, ’s Mother sent another letter to the Department of Education requesting the transition plan and the RSA’s. (Ex. G) The parents never sent to . (Tr. 859)

sent ’s parents a contract for the 2010-2011 school year on April 19, 2010, and an invoice for tuition for the 2010-2011 school year on June 7, 2010. (Ex. O) Although attended the from July 1, 2011, the parents did not sign the contract with for the 2010 – 2011 school year until January 6, 2011. (Ex. O) ’s Father testified that he simply forgot that he had not signed it on time. (Tr. 778-9) Attendance without a signed contract was not unusual for that year. (Tr. 680, 700) The parents never paid anything on the invoice. (Ex. N)

Although the contract provides options for a payment schedule, ’s parents never agreed to any of the payment options when they signed the contract. (Ex. O; Tr.

551) The contract provides a deadline for execution and a late payment charge that the does not enforce. (Tr. 692) The School does enforce a contract payment provision that requires the parents to pay tuition for the full school year even when they withdraw the child from school before the end of the school year. (Tr. 699, 701) There was a School finance committee that set financial policy for the during the 2010 – 2011 school year. (Tr. 697)

’s full tuition of $125,000 is a receivable of the “without reserve,” ie. an asset of the school without a parental discount. (Tr. 794) discounts the tuition that parents owe when they are unable to pay the full tuition and there is no other entity paying the tuition. (Id.) ’s parents made no payments to the for the 2010 – 2011 school year and they have taken no steps to pursue payment with a discount from the or a loan. (Ex. N; Tr. 698, 789-94, 835) took no steps to collect on the 2010 – 2011 contract, or to even have the parents pursue an impartial hearing against the Department of Education to obtain payment, until the spring of 2011. (Tr. 552-4, 686)

The parents’ Internal Revenue Service Form 1040 excerpt for 2010 establishes that their gross income was $190,000. (Ex. U; Tr. 777-81) In October of 2011, Mr. received a promotion and a raise to $225,000 per year gross income. (Tr. 786) The family has many medical expenses for even though he has a Medicaid waiver that pays some things for him. (Tr. 809) I find that the parents were able to pay something toward the contract for the 2010 – 2011 school year.

’s parents attended a meeting for parents at the in which they heard that parents who owed the School money would have to pay in full or their children would have to stop attending the School. (Tr. 795, 798-9) ’s parents still paid nothing on the 2010 – 2011 contract. sent a letter to ’s parents dated March 24, 2011 terminating from the school due to his parents’ failure to pay tuition or to pursue tuition payment for the 2010 – 2011 school year. (Ex. W) It is not until the parents received this letter that they filed an impartial hearing complaint for this impartial hearing on March 28, 2011. They explained that they delayed the filing their compliant as they were still involved in a hearing for the 2009 – 2010 school year, and they did not want to have to deal with two hearings at the same time. (Tr. 537, 859)

On April 4, 2011, the parents sent letters to the Department of Education giving notice of their intention to homeschool . (Ex. H, Ex. I, K) stopped attending the on April 8, 2011. There is varying testimony as to whether the parents removed from the rather than have him complete the school year there or whether the terminated his placement there. The school staff testified that the parents withdrew due to financial reasons. (Tr. 756, 760) The Father testified that the parents removed from the partially due to financial reasons, despite the clause in their contract with the that requires payment for the full school year even when the parents withdraw their child early. (Tr. 794-5. 799) The other reason that the parents withdrew from the school was due to ’s . (Tr. 796) may have been going through a “ ” at the time. (Tr. 801) The Father testified that ’s “outside issues were affecting the benefit he could receive from any school“ at that time. (Tr. 796)

I find that Exhibit W, the March 24, 2011 letter from Dr. , establishes that the parents did not withdraw from the based on their own choice or ’s health, but that terminated his placement there. did not give the parents a discount for the time that did not attend school after April 8, 2011 but are charging the parents the full tuition of $125,000. without a discount. (Tr. 701)

The parents removed from school on April 8, 2010. CONCLUSION OF LAW:

The Department of Education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the Department of Education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. Burlington School Comm. v. Dept. of Educ., 471 U.S. 359 (1985). The fact that the school selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department is not dispositive of the parents' claim for tuition reimbursement. (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]). Likewise, “a private placement need not provide . . an IEP for the disabled student,” Frank G., 459 F.3d at 364, The appropriateness of a unilateral placement is determined by whether it “provide[d] education instruction specifically designed to meet the unique needs” of the student. Gagliardo, 489 F.3d at 115 (citation omitted).

FIRST CRITERION

An appropriate special education program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives, when applicable, related to those needs, and provides for the use of appropriate special education services. The Second Circuit has held that an “IEP must be reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997 “[T]his standard contemplates more than ‘mere trivial advancement.’” Id. at 1121.

The often quoted Rowley standard is that an “appropriate” education includes:

“. . . personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. . . and if the child is being educated in the regular classroom, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.”

Board of Education v. Rowley, 458 U.S. 176, 207 (1982)

Yet the Rowley standard should not be read out of context. The United States Supreme Court made it clear that it was the intent of the High Court to apply this standard only to the education of children who are in the regular education classroom and who pursue a general education curriculum:

“The Act requires participating States to educate a wide spectrum of handicapped children, from the marginally hearing-impaired to the profoundly retarded and palsied. It is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between. One child may have little difficulty competing successfully in an academic setting with nonhandicapped children while another child may encounter great difficulty in acquiring even the most basic of self-maintenance skills. We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine our analysis to that situation.” (emphasis added.)

Rowley, 458 U.S. at 202

In the instant matter, is a child who was not attending a general education class nor was he pursuing a general education curriculum during the 2010 – 2011 school year. “. . . (T)his student is not being held to the same standards as a student n a general education class or a special education class in which they take state and city exams.” (Tr.

480) His progress cannot be measured using passing marks or advancement from grade to grade. The Rowley standard does not apply to

There is no case law from the United States Supreme Court or from the Second Circuit that clearly establishes a standard of “appropriateness” for a child who is not pursuing the general education curriculum. The reasoning and analysis of the Sixth Circuit Court of Appeals in Deal v. Hamilton Board of Education is instructive in this matter. In that case, the Sixth Circuit reviewed the history of educational benefit standards and developed a standard for a who was not in a general education classroom nor pursuing a general education curriculum.

“IDEA requires an IEP to confer a meaningful educational benefit gauged in relation to the potential of the child at issue. . . the intent of Congress appears to have been to require a program providing a meaningful educational benefit towards the goal of self-sufficiency, especially where self-sufficiency is a realistic goal for a particular child.“

Deal v. Hamilton Board of Education, 392 F.3d 840, 862, 864 (6th Cir. 2004)

There is further support for the application of this “self-sufficiency” standard for a child who is not in general education classroom and not pursuing the general education curriculum in the language of the Congressional findings in the reauthorization of the IDEA 2004. Congress found that the education of children with disabilities can be made more effective by:

”. . .having high expectations for such children and ensuring their access to the general education curriculum in the regular classroom, to the maximum extent possible, in order to meet developmental goals and, to the maximum extent possible, the challenging expectations that have been established for all children; and, to be prepared to lead productive and independent adult lives, to the maximum extent possible.”

20 U.S.C. §§1400(c)(5)(A)(i) and (ii)

The Southern District of New York Court has noted an impartial hearing officer’s application of this higher legal standard in a footnote without commenting on it.

“In reaching this decision, the IHO concluded that the standard set forth in Board of Education v. Rowley, 458 U.S. 176, 207 (1982) -- that the IEP be “reasonably calculated to enable the child to receive educational benefits” -- did not apply because defendants recommended placing E.D. in a full-time special education classroom. The IHO relied instead on Deal v.

Hamilton Board of Education, 392 F.3d 840 (6th Cir. 2004), which held that an IEP for a student who is not placed in a regular- education classroom should aim to “provid[e] a meaningful educational benefit towards the goal of self-sufficiency.”

A.D. and M.D. v. the Board of Education of the City School District of the City of New York, 690 F.Supp.2d 193, 54 IDELR 9, FN 7 (S.D.N.Y., 2010).

In the instant matter, “. . . is not being held to the same standards as a student in a general education class or a special education class in which they take state and city exams. . . . “ and his “promotion would be a different type of criteria than the promotion of other students.” (Tr. 480) is not following the New York State standards or general education curriculum. (Tr. 482-3)

Furthermore, , and he can read . for him in that he , . Dr. s goal is for to reach some level of self-sufficiency with a job. (Tr. 558)

HEARING OFFICER You--at one point you talked about looking down the road five years and another point you talked about that you were-- and you used the term I am committed and you talked about getting children not just ready for jobs but actually getting them jobs. In your experience with ., did you believe that with appropriate support and education that at some point in life he would be able to reach those goals?

DR. I absolutely did, but I also have to just qualify it slightly in that I have to believe that 'cause I have over 30 years I've come to believe that I have no predictability about who can work and who can't. Guys I thought in the past couldn't succeed very well and some very capable guys who I thought were really going to be great at work I failed miserably in my attempts. So I give everybody the benefit of the doubt. . . .” (Tr. 600-1)

I will join Dr. in giving the benefit of the doubt. I find that some level of selfsufficiency is possible for . I find the reasoning of Deal to be persuasive in this matter. It is this standard of a meaningful educational benefit towards the goal of selfsufficiency and an independent adult life that I apply in this matter.

The parents contend that the May 12, 2010 CSE was not validly composed as the participants from the were not present via telephone simultaneously for the entire CSE meeting and they did not have all of the documents for CSE review. School staff knew about the May 12, 2010 CSE and they participated in it by telephone. They could easily have met as a group at around one telephone for the entire meeting, but they chose to each participate in part of the meeting. The Department of Education invited the staff to the May 12, 2010 CSE meeting for B. staff chose how to participate in the meeting. The Department of Education cannot be responsible for the extent of their participation as they are not employees. Furthermore, I find that the staff did have copies of most of the documents for CSE review as they had prepared the educational progress report, the speech and language report, and the occupational therapy report. The Department of Education had a new observation and it is unclear whether the had a copy of this one document, but staff participated in the observation itself.

The parents contend that these procedural failures impeded their ability to fully participate in the discussion of 's needs and in the development of his IEP. I find that these alleged procedural violations either do not exist or do not rise to a level that they impeded the parents’ participation in the CSE process. This allegation is without merit. I find the parents other arguments that the CSE did not have sufficient evaluation information and other alleged violations to be without merit.

The Department of Education developed an IEP on May 12, 2010 that provided a small special education class with daily individual and , and a full-time individual paraprofessional. This was a twelve month program in a special education school. There was a careful review of the goals on the May 12, 2010 IEP as part of this impartial hearing, and I find that the goals on the May 12, 2010 IEP were appropriate for .

I find that the May 12, 2010 IEP offered B. a FAPE to the standard of a meaningful educational benefit towards the goal of self-sufficiency and an independent adult life

The question is whether the Department of Education could implement the May 12, 2010 IEP during the 2010 – 2011 school year. The Department of Education initially offered a placement in P75. This school offers classes for students with . It uses ABA and TEACCH. The May 12, 2010 IEP provides with daily individual speech therapy and individual occupational therapy that may have required the use of RSA’s for some of these related services.

It was unclear to the parents to which class at would be assigned. One class the Mother visited had eight students who were too high functioning for while the other class she visited had students who were younger than . (Tr. 832) I note that in September 2010, the parents placed ten year old in the upper school at The other students there were twelve to fifteen years old so was the youngest student by at least a year or two, and has the most challenging behaviors in the class.

I find that the program offered offered B. a FAPE to the standard of a meaningful educational benefit towards the goal of self-sufficiency and an independent adult life for the 2010 – 2011 school year.

In December 2010, the parents requested placement at , and the Department of Education offered placement at beginning January 2011. This is a smaller public special education school exclusively dedicated to children with autism. The school uses ABA, and offers related services of speech and language therapy, occupational therapy, physical therapy, with supports and training for parents included in the program.

I find that the program at offered B. a FAPE to the standard of a meaningful educational benefit towards the goal of and an independent adult life in January 2011 to the end of the 2010 – 2011 school year. I note that this was the Department of Education offer when the parents signed the contract with the and first had an obligation to pay tuition there for the 2010 – 2011 school year.

SECOND CRITERION

Having found that the New York City Department of Education has carried its burden on the first criterion, I do not have to consider the second or third criteria. See Application of a Child with a Disability, Appeal No. 02-092; and Application of a Child with a Disability, Appeal No. 05-038 citing Mrs. C. v. Voluntown, 226 F.3d 60, 66 (2d Cir. 2000); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119 at 134.

With respect to the second criterion for an award of tuition reimbursement, the parents bear the burden of proof with regard to the appropriateness of the services they obtained for their child. Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No., 94-29 In order to meet this burden, the parents must show that the services were "proper under the Act", (Individuals with Disabilities Education Act) School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985), i.e., that the private school offered an educational program which met the child's special education needs. Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 96-85 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 by Carter, 510 U.S.7 (1993), nor must it employ certified special education teachers, or have its own IEP for the student. Application of a Child with a Disability, Appeal No. 94-20 To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000) (“the test . . . is not perfection.”)

To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Gagliardo, 489 F.3d at 112

There are two possible approaches to assessing the appropriateness of a placement. One is a prospective “snapshot” review that focuses on the child’s levels of performance and individual needs when the placement decision was made, and the other is a retrospective hindsight review that takes into account whether the child made progress in the placement. In adopting the prospective snapshot approach, the U.S. District Court for the Southern District of New York referred to a hindsight retrospective review as “Monday-morning quarter backing guided by . . . knowledge of (the child’s) subsequent progress . . . “ J.R. v. Board of Educ. of Rye Sch. Dist., 345 F.Supp.2d 386, 395, (S.D.N.Y. 2004) The Court recently reviewed the standard of review:

“. . . the Court finds persuasive the line of cases that have ‘held that inquiry into whether an IEP is valid is a necessarily prospective analysis’ and notes the Second Circuit's suggestion that ‘an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated.” M.H. and S.R on behalf of H.H., v. New York City Department of Education, 56 IDELR 69, 111 LRP 13642 (S.D.N.Y., 2011)

footnote 6

See also Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1041 (3d Cir.1993) (“Actions of the school systems cannot ... be judged exclusively in hindsight. ... [A]n individualized education program ("IEP") is a snapshot, not a retrospective. In striving for ‘appropriateness,’ an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was drafted.”) The U.S. District Court for the Eastern District of New York applied this prospective snapshot approach to the second criterion of Carter/Burlington analysis for reimbursement: “. . . this Court sees no reason why the parents' choice of a program should not be evaluated under the same standards, looking at the program at the time that the parents selected it and determining whether, at that point, it was a program reasonably calculated to provide the child with an educational benefit.” C.B. and R.B. on behalf of W.B., v. New York City Department of Education, 108 LRP 2761, (E.D.N.Y., 2005)

In the instant case, the parents placed B. at the on July 1, 2010. provides an extended school day of one-to-one support in a comprehensive special education environment designed for students with autism. building offers a number of therapy and break areas, including a sensory gym, exercise equipment on the first floor stage, a relaxation room with a massage table, an auditorium with bicycles and scooters, and weight equipment in the basement. are provided at school during the extended day so that RSA’s are not necessary. It appeared to be an appropriate school for during the 2010 – 2011 school year.

Although the appeared to be appropriate for , his placement in the upper school there during the 2010 – 2011 school year was not appropriate. It appears that was the youngest student in the upper school by a year or two. ’s than those of the other students there. Age appropriate group activities, such as circle time, were discontinued as not age appropriate for upper school students although they well have been appropriate for . There was testimony that had problems participating in group activities, but I note that the group was comprised of students who were substantially older than him. These group activities were shortened for instead of putting him in a more age appropriate group doing more age appropriate activities. (Tr. 745)

Furthermore, the “wrap” procedure used on . at the during the 2010 – 2011 school year raises questions as to the appropriateness of the parents’ unilateral placement at . The is procedure designed to secure an individual and not allow him to engage in behavior that would cause harm to themselves or others. includes the “wrap” procedure in which ’s “arms are held to decrease the to himself and others.” 2009 – 2010 IEP for states that:

“During the hold, will be told to count to ten calmly with his instructor. If he finishes counting and demonstrates the decreased level of agitation, the instructor . He will be directed to fine motor or receptive tasks until he can resume his original activity. . . . . “

(Ex. 24 at 9)

I note that the IEP for for the 2009 – 2010 school year includes a final signature pages with the statement:

“PARENTAL CONSENT: I have reviewed this individualized education program and the intervention procedures have been fully explained to me. I have been given an explanation of the potential benefits of this program as well as an explanation of the possible discomfort. . . “ (Ex. 24 at 10) (emphasis added)

’s parents signed this IEP consent page on October 30, 2009. (Id.) The 2010 – 2011 IEP in this impartial hearing is comprised of only six pages of objectives without any behavior management page and no parental consent and signature page. (Ex. 23) There is no testimony in this impartial hearing to establish whether this is a complete document, or whether it has been abridged for this hearing.

Dr. testified that the “wrap” procedure was discontinued during the 2010-2011 school year, but Ms. Ward specifically stated that the “wrap” procedure was not discontinued during the 2010 – 2011 school year. (Tr. 744) She stated that it is what the staff did when ’s behaviors were intense. (Id.) Ms. described how the instructor stands behind and holds his wrist to the opposite hip primarily while he is seated at his desk. (Tr. 741-742) Ms. testified that she also performed the “wrap” procedure on approximately once every week or two for about two to three minutes at a time. (Tr. 428-

429) If .

No one talked to during the “ from 2009 – 2010 states that the staff member is suppose to count with him to calm him down. (Tr. 740) ’s , her other son, also used the wrap procedure on at home and she does not believe that it is a form of or . (Tr. 867-8)

I found the testimony of Dr. on this point not to be credible. I find that the “wrap” procedure was used on during the 2010 – 2011 school year. It is unclear whether the parents consented to it during the 2010 – 2011 school year, especially as they did not sign a contract with the until January 6, 2011.

The New York State Commissioner of Education regulations apply to registered nonpublic elementary or secondary schools and only permit the use of aversive behavioral interventions in behavior intervention plans under very limited circumstances.

“No public school, BOCES, charter school, approved preschool program, approved private school, State-operated or State-supported school in this State, approved out-of-State day or residential school, or registered nonpublic nursery, kindergarten, elementary or secondary school in this State shall employ the use of aversive behavioral interventions to reduce or eliminate maladaptive behaviors, except as provided pursuant to section 200.22(e) and (f)

of this Title.” (emphasis added)

Rules of the Board of Regents §19(b)(1)

The New York State regulations establish a carefully delineated system of protections that drastically limit the use of aversive behavioral interventions in behavior intervention plans. New York Commissioner of Education regulation §200.22(b)(3)

Schools may apply to the Commissioner for a child-specific exception and the Commissioner’s panel will review the application. If the exception is granted, then there are regulatory controls that limit the time that aversive interventions may be used, and the school must monitor progress and document the use of interventions.

The question is whether the wrap procedure used on interventions include or other used as a punishment, including but not limited to helmets and mechanical restraint devices, or other similar stimuli or actions. This list of aversive behavioral interventions is deliberately left vague in the regulation to permit the kind of inquiry necessary in the instant matter.

The wrap, as executed at on . It is also a deep muscle squeeze described as a “hug that we would give him a hug to give him the deep pressure. . . “ (Tr. 427)

Different staff members perform the . The term “does not include such interventions as voice control, limited to loud, firm commands; time-limited ignoring of a specific behavior; token fines as part of a token economy system; brief physical prompts to interrupt or prevent a specific behavior; interventions medically necessary for the treatment or protection of the student; or other similar interventions.” Clearly, the does not fit any of these listed exclusions, and it is a form of that exceeds the physical intrusiveness of these exclusions.

Dr. described ’s and he stated “any .” (Tr. 522, 570-1) The is a form of physical intervention that may have escalated ’s in the long term. Although Dr.

testified that data was being kept on the response to ’s , although there is nothing in the data on the use of the “ ” that was produced in this impartial hearing. (Tr. 574-6; Ex.

25) The behavioral documents in evidence in this impartial hearing do not mention the procedure being used during the 2010 – 2011 school year. Ms. could not tell us the number of times that the was used on . (Tr. 740)

I note that a school cannot obtain a child-specific exception when the intervention is intended to induce “discomfort”:

(2) “No child-specific exception shall be granted for interventions used as a consequence for behavior which are intended to induce pain or discomfort . . . “

(emphasis added)

New York Commissioner of Education regulation §200.22(e)(2)

The parents agreed to permit the School to impose discomfort on during the 2009 – 2010 school year. It is a matter of fact whether the wrap was used on purely for safety reasons but produces discomfort, or as a negative reinforcement to cause discomfort. This issue is basic to the availability of a child-specific exception, and that issue is not before me.

Based upon the record that is before me, I find that there was no data being kept on what behavior precipitated , how often was used, how long each time, whether it was repeated, the used, or the effectiveness of the for . (Tr. 484-5) Furthermore, the decision when to use is based upon subjective criteria of individual staff members.

Based upon the record before me, I find that was used on during the 2010 – 2011 school year is an aversive behavior intervention as executed because does not comply with the own behavior plan for as implemented, no data is kept on its use, and it has not been approved by the New York State Department of Education. I further find the wrap procedure used on to be an aversive behavior intervention as Dr. Gerhardt was not truthful about it, and the numerous documents in this impartial hearing omit all reference to the use of the wrap.

It may be that the staff needed to restrain to keep him and others safe in school. In that case, the needed to follow its own behavior plan for , keep appropriate data, and be sure to comply with the New York Commissioner of Education regulation §200.22(b)(3). Compliance requires schools to put the restraint in the child’s IEP, and to apply to the Commissioner for a child-specific exception when needed.

Even using a retrospective analysis of appropriateness, there is no evidence that made any significant progress at the during the 2010 – 2011 school year. To the contrary, the parents were concerned about ’s lack of progress that year. In a December 6, 2010 note, the staff wrote that ’s : “Her concern is he's not in her eyes making progress. My concern is his which directly impacts his academics. number ." (Ex. 38; Tr. 587) The Mother requested another reading program for . Ms. testified that regressed in some of his skills, but then he would recoup the loss. (Tr. 758) She attributed ’s lack of progress and during the 2010 – 2011 school year. (Tr. 738)

made little during the 2010 – 2011 school year. At the beginning of the school year, he displayed and he was still on at least an almost daily basis at the end of the school year. (Tr. 759-690) The chart establishes that ’s fluctuated, but it did not improve over the course of the school year. (Ex. 25) His final week at the , which was March 28, 2011, displayed of . (Ex. 25)

did make some progress in his related services. In speech therapy, he progressed in his ability to process directions; understand temporal concepts, such as day and night; and some location concepts, such as top and bottom. (Tr. 630) “He was starting to make improvement in his social communication.” (Tr. 631) When asked to describe ’s progress in testified:

“Well the first and most important focus for was to get him at a moderate arousal level. Once you were able to have him on a level where he was calm and he was focused, you could work on the goals of his IEP. But to get him there you really needed to work on him to get him--like get the proprioceptive input, the vestibular input, and then address the goals. So that's where he really made a lot of progress.” (Tr. 395-6)

Based upon the inappropriate placement of in the upper school at the and the use of the “wrap” procedure on him, I find that the was not an appropriate placement for

B. for the 2010 – 2011 school year. In addition, I find that made de minimus progress at the during the 2010 – 2011 school year. The parents have not met their burden on the second criterion to establish that the was an appropriate placement, and that it was proper under the Act.

THIRD CRITERION

The third criterion for an award of tuition reimbursement is whether equitable considerations support the parent's claim. Again, I will consider the equity issues in this matter to complete the record in this case.

In the instant case, the parents placed School on July 1, 2010. It was his fourth year there. ’s Father testified that at that time, he did not expect to pay the unless he lost this impartial hearing although he did not request a hearing for eight months. Essentially, the parents hoped that they could continue having attend the at no charge to themselves. I find that the parents expected not to pay anything for the again for the 2010 – 2011 school year. There are three facts and circumstances that impact equity in this case.

First, the parents requested a public placement at P4 in December 2010, and the Department of Education offered them the requested placement by early January 2011. The Mother then insisted that the Department of Education develop a detailed transition plan to support ’s move from the to the public school program. The parents wanted the Department of Education to pay staff for this transition although the staff testified that they would have done it at no charge. I note that the parents were going to be charged for the full year at the even though he had stopped attending. They were already paying the . When the Department of Education did not offer the transition plan, the parents rejected the public program that they had requested, and they filed for this impartial hearing. Equity does not favor these parents who requested a particular public program, obtained it, and then added more conditions and services to their request.

Second, the parents did not sign an enrollment contract with the for the 2010 – 2011 school year until January 6, 2011. Even then, they did not select any payment option. (Ex. O at 3) ’s Father testified that he had forgotten to sign the contract earlier. The interim financial officer from the testified that there were a number of families who had children at the school at that time despite not having executed a contract. These facts do not change the situation, and there has been no quantum meruit argument made in this matter.

I find that the parents had no legal obligation to pay the for the 2010 – 2011 school year until January 6, 2011. By then, the Department of Education had offered ’s parents placement in , the public autism school they had requested.

Third, the parents have a substantial income although they have expenses for medical and other services for . Despite their ability to pay something toward ’s tuition at the , they paid nothing for the 2010 – 2011 school year. The Father testified that he did not intend to pay anything to the unless they lost this impartial hearing. Then the parents did not even file for this hearing until March 28, 2011 when was about to be terminated from the for . The parents did not agree to pay tuition in a timely manner; they did not pay anything toward tuition although they had the financial ability to do so; and they did not pursue payment from the Department of Education in a timely manner.

For these three reasons, I find that equity does not support the parents’ claim for prospective payment or reimbursement for the for the 2010 – 2011 school year.

SUMMARY AND CONCLUSION

On the first criterion, the Department of Education offered a FAPE for the 2010 – 2011 school year. On the second criterion, the parents did not carry their burden to establish that the was an appropriate placement. On the third criterion, the parents had no obligation to pay for the from July 1, 2010 to January 6, 2011 and equity does not favor the parents claim for prospective payment or reimbursement. The prevailing party is the Department of Education.

ORDER

There is no order. Dated: February 27, 2012

__________________________________

BARBARA J. EBENSTEIN, ESQ.

Impartial Hearing Officer

BJE: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 Amended Hearing Request, 5/24/11, 6 pp. B Impartial Hearing Request, 3/28/11, 5 pp. C Letter from Parent to , 6/17/10, 1 p. D Letter from the Parent to with a Receipt, 6/22/10, 3pp. E Letter from the Parent to , 12/21/10, 1 p. F Letter from the Parent to with Receipt, 1/7/11, 3 pp. G Letter from Parent to with Receipt, 1/14/11, 2 pp. H Letter from Parent to , 4/4/11, 1 p. I Letter from the Parent to the Central Office of Home Schooling, 4/4/11, 1 p. J Certified Mail Receipts, 4/5/11, 1 p. K Letter from the Parent to with Receipt, 4/4/11, 2 pp.

L REMOVED

M Description of , Undated, 2 pp. N Affidavit from , Ed.D, 7/28/11, 1 p. O Enrollment Contract, 4/19/10 but Signed January 6, 2011, 3 pp. P Daily Attendance Record for the School Year 2010-2011, Undated, 1 p. Q Class Schedule for 2010-2011, Undated, 1 p. R 2009 Federal Income Tax Return Form 1090, 3/22/10, 2 pp. S Team Meeting notes, 2/28/11, 1 p. T E-Mails Between the Parents and , Various Dates, 5 pp. U Parents 1040 Income Tax Document for the 2010 Year, Two Page Excerpt V Communication Book W Letter to Parents from , 3/24/2011, 1 p. U Parents 2010 Tax V Communication Book Between Parent and

DEPARTMENT OF EDUCATION

1 DOE Subpoena to the , 7/19/11, 2 pp. 2 Amended Hearing Request, 5/24/11, 6 pp. 3 Due Process Response, 4/5/11, 4 pp. 4 Impartial Hearing Request, 3/30/11, 6 pp. 5 Letter from the Parent Re Home Schooling, 4/5/11, 1 p. 6 FNR, dated 6-14-10, 1 p. 7 12-Month School Year Consent Form, 5/12/10, 1 p. 8 Notice of Recommended Deferred Placement, 5/12/10, 1 p. 9 IEP Meeting Minutes, 5/12/10, 2 pp. 10 IEP for 2010-11, 5/12/10, 23 pp. 11 Facsimile from to CSE-9, 5/12/10, 9 pp. 12 Facsimile from to CSE-9, 5/12/10, 4 pp. 13 Letter from Parent to , 6/25/09, 2 pp. 14 IEP for 2009-10, 5/8/09, and 5/26/09, 24 pp. 15 Class Observation, 4/28/09, 2 pp. 16 Social History, 5/22/07, 3 pp. 17 Evaluation, 3/9/07, 7 pp. 18 Classroom Composition, Room 6, Undated, 1 p. 19 Daily Attendance Record, 2010-2011, 1 p. 20 Educational Progress Report, 1/25/11, 7 pp. 21 Educational Progress Report, 6/23/10, 6 pp. 22 Educational Progress Report, 1/15/10, 6 pp. 23 IEP, 2010-2011, 6 pp. 24 IEP, 2009-2010, 10 pp. 25 Daily , 1/3/11 to 3/28/11, 1 p. 26 Behavior Data Summary From 2009 to 2010, 2 pp. 27 Test Results, 5/.2010 to 6/2010, 1 p. 28 IEP Goals, 12/2009 and 6/2010, 6 pp. 29 Progress Report, 6/2010, 3 pp. 30 Progress Report, 1/2010, 3 pp. 31 Progress Report, 1/2009, 4 pp. 32 Report, 1/6/11, 7 pp. (Tr. 415) 33 Report, 6/15/10, 6 pp. 34 Report, 1/15/10, 7 pp. 35 IEP Goals, 1/2010 and 6/2010, 2 pp. 36 Notice of Communication Notebook from , Undated, 1 p. 37 Team Meeting Minutes, 2/14/11, 1 p. 38 Team Meeting Notes, 12/6/10, 1 p. 39 E-Mail Between the Parent and , 12/3/10, 1 p. 40 Team/Class Meeting Notes, 8/2/10, 2 pp. 41 Team Meeting Notes, 7/26/10, 1 p. 42 Team Meeting Notes, 7/19/10, 1 p. 43 Observation, 1/20/10, 3 pp. 44 Document, 3 pp.

IMPARTIAL HEARING OFFICER

I Brief Instructions for Becker, 1 p.

Transcript Corrections:

The School is “ ”. It was misspelled a number of times in the January 17, 2012 transcript.

Page 885, line 21 should read “you’ve got me . . . “

Page 511, line 2, the word should be “He’s” not “She’s”