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: January 13, 2012

February 14, 2012

March 14, 2012

March 27, 2012

April 2, 2012

May 17, 2012 Actual Record Close Date: June 25, 2012 Hearing Officer: Linda Agoston, Esq.

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

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 14, 2012

Attorney — Student

Mother, — Student

Attorney — DOE

IEP (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 14, 2012

Attorney — Student

Mother, — Student

Attorney — DOE

Assistant Prinicpal (via telephone) — DOE

Special Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 27, 2012

Attorney — Student

Mother, — Student

Attorney — DOE

Special Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 2, 2012

Attorney — Student

Mother, — Student

Grandmother, — Student

— DOE

Attorney — DOE

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

Attorney — Student

Mother, — Student

Program Director- School — Student

Teacher- School (via telephone) — Student

Head Teacher- School (via telephone) — Student

Attorney — DOE

— DOE

On December 9, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, (IDEA) 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York, regarding the special education program of (hereinafter the Student). The hearing was convened at the request of the parents through their advocate that was received on December 9, 2011. A pre-hearing conference was held on January 13, 2012. Hearings were held on February 14, 2012, March 14, 2012, March 27, 2012, April 2, 2012 and May 17, 2012. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present its positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the requests for extensions of the compliance dates were granted. The current record close date is June 25, 2012 and the compliance date for issuing a decision is July 9, 2012.

The hearing was requested by the parents to challenge the March 16, 2011 review and recommendation of the Committee on Special Education (“CSE”) and to obtain funding for the School (“ ”), a private entity lacking New York State Education Department approval. The parents brought the hearing seeking reimbursement/prospective payment for the tuition for the program at the for the 20112012 school year. The parents submitted a loan agreement from grandparent to the parent in the amount of $ dated May 27, 2011 for the as proof of payment for check # 1864 in the amount of $5,000 with the date of payment of May 27, 2011 (K at 2).

BACKGROUND

The Student is a year old girl who is classified with (Exh. 5 at 1). She currently attends . The Student classification is not disputed (trans. 36). The Student has a diagnosis of and (Exh. 2 at 3) The Student has been attending a special school since September 2008 (Exh. 5 at 3).

An Evaluation was conducted on October 7, 2010 when the student was , who had attended in a class with a ratio (Id.). The evaluators noted that the Student‟s educational performance and observed she was unable to consistently

(Exh. 2 at 2). The evaluators further noted the Student had , was and was in her ability to (Id.). The evaluators recommended that the Student use Aid (“ ”), a - to make her wants and needs known as she could locate and with (Exh. 2 at 3).

On October 20, 2010, a classroom observation was conducted of the Student at am during the at the classroom (Exh. 3 at 1). The observer noted that there were children and adults and noted that the Student was not able to and noted the (“ ”) provider helped her to and . The observer noted the Student appeared and to (3 at 2).

On December 2010, the Interdisciplinary Report of Progress was conducted when the student was and placed in a class with a staffing ratio of . The report was signed by the head teacher, the provider, the (“ ”) provider and the teacher (Exh. 4 at 11). The program description indicated that the Student‟s day consisted of (Exh. 4 at 1). The educational levels indicated that the Student would not regulate when she had to wait for a desired item and required help to re-regulate (Id.). The engagement and relating levels indicated that the Student (Id.). The report indicated that the Student primarily , such as and would occasionally would use adult (Exh. 4 at 2). The report indicated that while the Student was , she preferred to in the classroom (Id.). The Student received a week for minutes individual session in a or the office of the provider and a week for minutes individual session and once during with other peers (Exh 4 at 6) and a week for minutes (Exh. 4 at 7).

On May 23, 2011, CSE met and drafted an IEP and recommended that the Student be placed in a special class in a specialized school, for a 12-month school year, with a staffing ratio of with special education transportation and related services of individual for sessions per week for minutes per session, individual for sessions per week for minutes per session, individual (“ ”) for sessions per week for minutes per session, sessions per week for minutes per session and a (Exh. 5 at 19). The IEP indicated in the section of “ ” that a special class in a specialized school with a staffing ration of and were considered and rejected as not sufficiently supportive and without a was not supportive sufficiency (Exh. 5 at 18). The “ ” section indicated that a ,a - and training the staff and parent in utilizing the (Exh. 5 at 5). On June 17, 2011, the DOE offered a Final Notice of Recommendation (“FNR”) to the parents at located in , New York, in the Student‟s home zone.

THE POSITION OF THE PARTIES

The DOE has recommended that the Student be placed in a special class which is a class for children, in a specialized school, for a 12-month school year, with a staffing ratio of , and and receive related services of and as well as a paraprofessional. The parents disagreed with the Department of Education‟s placement and request tuition reimbursement/prospective for for the 2011-2012 school year as they maintain that the Student‟s IEP was not prepared in accordance with the procedural and substantive requirements of Federal and State Regulations and is appropriate.

THE DISTRICT‟S CASE

The District‟s case was presented in the testimony of , , the Assistant Principal and the classroom teacher of the proposed class at during the summer of 2011 and the classroom teachers of the proposed class at during September 2011.

Ms. , certified school employed by the Department of Education for CSE since October 2008, testified that she had a Master‟s degree in educational (trans. at 10). She participated in the March 16, 2011, CSE annual review as school and developed the CSE minutes (Exh. 6; trans. 15). She noted that the parent participated by telephone in the office of the parent‟s advocate, as did the advocate and the Student‟s then current special education teacher. She further recalled her partner of years, a CSE certified special education teacher, also participated as both the special education teacher and district representative who was familiar with all the programs and services available within the district (trans. 14). She noted that the team reviewed the Progress Report or Interdisciplinary Report of Progress dated December 2010 (Exh. 4), the Classroom Observation dated October 20, 2010 (Exh. 3) and the Assistive Technology Evaluation dated October 7, 2010 (Exh. 2). She testified that the Student‟s teacher for the 2010-2011 school year at the who appeared at the review had also created Progress Report (trans. 17). She further testified that the Student had and needs, but she was able to and and that this information was noted in the page of the IEP (Exh. 5 at 3; trans. 19-21). She recalled that the Student‟s interfered with and required and that the individual and a intervention plan (“BIP”) were added to the IEP to address her behavior needs (trans. 23). She noted that an informal functional behavior assessment (“FBA”) was conducted at the CSE review to develop the BIP to target the Student‟s need for constant (trans. 24). She noted the BIP was discussed with the team members and the Student‟s then current teacher and that parent and advocate were comfortable with the BIP as well as the decision to add the (trans. 25). She explained that was a to (trans. 26). She maintained the Student‟s were met by the related services and the and goals addressed her . She further maintained that the academic goals were measurable and specific for and were based on the Student‟s then current teacher‟s input and were measured by teacher observation (trans. 27). She further maintained that the Student‟s academic abilities and needs were described on page 3 of the IEP and her were detailed on page 5 of the IEP as well as her (trans. 31). She stated that each academic goal and related service goals was discussed and agreed upon (trans. 32-34). She noted the goals addressed as well as (trans. 33). Ms. maintained that the parent did not voice a concern; however, the Student‟s then current teacher voiced concerns over the program and did not agree with the recommendations of the team (trans. 36). She noted that the Student‟s class of was a . She further noted that the staffing ratio of the recommended program of including the Student‟s paraprofessional was also a staffing ratio (trans. 38). She further noted that she was very familiar with the and had spent hours at from 2009 to 2011 (trans. 39) She opined that the was not appropriate for the Student because the DIR model was developed for students with of and (trans. 41). She further opined that the Student did not have a disorder of which was (Id.). She opined that the was and , but was not or because the students the (Id.). She recalled a discussion of a special class in a specialized school with a staffing ration were considered and rejected as not sufficiently supportive due to the Student‟s (trans. 42). She explained that while the proposed class had a majority of students so did the Student‟s class in the (trans. 43). She further explained that the Student was not able to have and . She maintained that in the proposed class the Student would have a female peer; however, she noted the gender of the students in the proposed class was not as significant and that there were a majority of males at the (trans. 44). She further maintained that to push-in into the classroom would facilitate the Student‟s (trans. 45). She further maintained that the page 3 of the IEP noted and and trans. 46).

On cross, Ms. testified she was not sure how information regarding the of was obtained nor how that disease affected the Student‟s education (trans. 49). Ms. admitted there was no (trans. 50). She maintained that she determined the Student‟s in listening and in computation by the members who presented input in the IEP meeting (trans. 54). She further stated that breaks could occur throughout the school day in or “ ” (Id.). She noted that the BIP was developed for the Student‟s paraprofessional to help the Student meet the Student‟s goals and that the paraprofessional would work under the supervision of the special education teacher and that data would be collected when the Student arrived at her new school (trans. 58).

The Assistant Principal (“AP”) employed by the DOE for years, testified that she was the AP at for the last years (trans. 69). She explained that her school was a specialized school which had classes within a general education school. She stated that was a general education school and that was a site contained within (trans. 72). She explained that the had its own for the class. She further explained that each class had a paraprofessional in the classroom and that parent training and counseling was provided to the parents of the children in the class (trans. 73). She maintained that the related services were provided to the class on a or (trans. 74). She noted that there were opportunities for interactions with nondisabled peers on trips, through a program called “ ” and through several times a year (trans. 82). She further noted that she reviewed the Student‟s IEP and the Student‟s goals and accommodations were similar to other students in her program. She recalled that the Student would have been placed in class and that the children in the proposed class functioned at the same or a similar level as the Student (trans. 76).

On cross, the AP stated that was a to grade school for children aged (trans. 79). She further stated that the children walked up to the floor to her school at . She allowed that there was (trans. 80).

The certified special education teacher who taught the program for the proposed class during July and August 2011, employed by the DOE for years, testified that she had a Master‟s degree in special education (trans. 142). She stated that she designed the curriculum and provided differentiated curriculum to match the needs of her students (trans. 143). She further stated that she assessed the levels by diagnostic exams and assessed the behavior of the students to implement a more intensive behavior plan if needed (Id.). She explained that she was supervised by the AP and coordinator during weekly meetings and they observed her teaching to provide her with new ideas. She further explained a literacy coach came to school twice a week to help apply the curriculum to meet the students‟ needs (trans. 145). She stated that she participated in professional developments (“PD”) that targeted FBAs and how to effectively write BIPs (trans. 147). She explained she differentiated teaching the curriculum (trans. 148). She further explained that she met with the related service providers each week informally and formally. She provided an example of collaborating techniques to help teach handwriting to her children who were deficient in fine motor skills (trans. 150). She stated in July 2011 there were 5 students who ranged in the grade range (trans. 151). She stated that there were student who were , but and students and student who (trans. 153). She stated that her students were classified on the (trans. 154). She stated that she provided instruction by differentiating the curriculum based on the ability of the students by using different leveled books (trans. 156;162). She noted that she assessed her students at the beginning of July to understand the baseline level of their academic abilities and behavior and she charted their progress over July and August (trans. 159; 165). She explained that generalization was the ability to take a learned skill like counting money and applying the counting skill outside the classroom (trans. 160). She noted that the curriculum over the summer was Olympics paired with the general curriculum in use during the year called Treasures and Triumphs which was based on the common core learning standards (trans. 161). She explained that she used a variety of instructional formats. She noted that in morning meeting she taught social skills, eye contact, handshaking and saying hello. She further noted that after morning meeting, then the calendar session was conducted which allowed students to follow the schedule and then the student went to work stations for reading, math, writing and listening. She noted that there was a computer station in the back of the room, next to the library, 2 bookshelves with leveled books based on the Fountas and Pinnell system (trans. 164). She explained that the schedule was taped on Velcro for each student and each student who could read were able to read the words on their schedules or look at a picture on their schedule if the student could not read (trans. 165). She recalled that the provider pushed into the class each day to work on skills to help the children build letters with blocks or to stretch their muscles or use play-doh to build fine motor skills to hold a pencil or scissors correctly (trans. 168). She further recalled that the provider pushed in to help the students walk up or down the stairs with the class or to go on field trips. She noted that all the children received SLT and counseling on a push-in or pull-out basis (trans. 167 to 169). She further noted that was sent home each night so there was contact each night with the parents of the children in her class in the (trans. 170). She explained that the class had a system and her children earned points to earn clubs, such as music club or dance club (trans. 172; 195)

The proposed teacher for the summer noted that the children in her class had reading abilities that ranged from in letter recognition and letter sound matching. She noted there was a range of abilities in math from skills of matching numbers and objects to grade math in addition (trans. 175). She opined that the Student could have fit into her class over the summer of 2011 as the Student was able to identify her and reference a class schedule and these were skills she worked on with her class over the summer (trans. 178;181). She noted that the Student used and her to and that those functioning levels were typical of her students in her class over the summer (trans. 182). She explained that the class worked for minutes and then the class had structured sensory breaks such as coloring, or dressing from the dress-up bin to ensure the students remained engaged and she slowly increased the work time to 6 minutes or 7 minutes with a shorter sensory break with sensory tools such as play-doh, or jelly balls or bouncy balls (trans. 183;197). She further explained that the Student‟s BIP was similar to the entire population of the District School like at her school, because most of the students were and needed (trans. 184). She opined that she would have worked with the Student‟s paraprofessional and the Student to achieve long and short term behavior goals in the BIP and she opined that she could have implemented the Student‟s academic goals (trans. 186). She further opined that she could have worked on the related service goals for the Student with the related service providers as the goals were similar to the related service goals of the students in her class (trans. 188). She opined that the Student would have been appropriately placed in her class despite the fact that the Student had a classification because both and were both . She further opined that the Student would have easily fit into her classroom with an additional female child and male children in her class (trans. 191). She further opined that had the push-in related service been for the Student, then all services would have been pull-out (trans. 192).

On cross, the proposed special education teacher for the summer 2011 stated that her program was at on (trans. 201). She further stated that all the students in her class received their related service mandates and her program was located on the floor (trans. 206). She recalled that during the summer of 2011 there were classes with a staffing ratio of (trans. 207). She stated there were paraprofessionals in the summer of 2011 in her class so the adult to student ratio was (trans. 209). She further stated that if a student could not work within a group, but that student could rotate between the adults in the class (trans. 210).

The proposed special education teacher for September 2011 testified that she had Master‟s degrees in both regular and special education and was employed by the DOE for years and was employed as a special education teacher at years (trans. 84;87). She stated that she had participated in and collaborated with the teaching staff every day (trans. 86). She stated that she had paraprofessionals for class and she oversaw the paraprofessionals and provided direct instruction to ensure the paraprofessionals implement the goals (trans. 88). She stated that she used the classroom curriculum called Treasures and Touch Math, part of the common core standards for each ELA and math (trans. 89). She explained that she modified that instruction for students using symbols or the iPad. She further explained that various communication methods that were used in her class including picture symbols, the iPad and verbal language (trans. 91). She stated that social interaction needs of her class were met by the morning meeting, eating breakfast and the calendar (trans. 93) She maintained that there was generalization of a learning skills to more complex environments (trans. 94). She further maintained that she assessed her students by weekly unit tests and the Brigance or the SANDIs (trans. 95). She stated that she provided differentiated instruction to each student with lessons geared towards what that particular student needs. (trans. 96) She stated that she used TEACCH or ABA for small group instruction (trans. 97). She maintained that using more than a single methodology conferred an educational benefit because she used the methodology that worked best for the particular student (trans. 99). She explained that there were sensory breaks that any student could take to calm down and there was a sensory center with feathers, weighed vests, headphones for music and a sensory table with sand and a computer (trans. 101). She explained her class had a front board with the calendar and then morning meeting was conducted on a rug and then the student broke into groups for instruction (trans. 102). She noted that she collaborated with the related service providers for her student and provided positive reinforcement (trans. 103). She further noted that she carried over techniques and intervention from the related service providers into her class (trans. 106). She related that she communicated with the parents of her students through a communication book daily (trans. 108). She stated that behavior training was provided by PD and the use of the Stay on Green Stoplight Program (trans. 110). She explained that that the student‟s good behavior was demonstrated by their name or picture on a green block (trans. 111). She further explained that if a student‟s behavior deteriorated then the student was verbally redirected and was provided with verbal praise (Id.).

The special education teacher of the proposed class for September 2011 stated that there were students all on the aged (trans. 113). She stated that functioning levels of the students in her class ranged from to grade (Id.). She further stated that the ranged from speech to (trans. 114). She noted that the IEP indicated that the Student was during and the Student could and had and she that she could have the Student‟s and build her (trans. 118). She explained that she would have the Student‟s with and could have provided an to the Student to assist her (trans. 119). She maintained that the Student would have fit into her class despite the fact that she because she had similar students at that level (trans. 120). She further opined that she could have met the Student‟s by and she opined that she could have met the Student‟s behavior needs with the BIP and giving the Student in the and and (trans. 122). She opined that she could have met the academic goals by using the , in trials and then the skills (trans. 124). She further opined that she could have worked with the related serviced providers to implement the related service goals in her classroom (trans. 125). She opined that the Student could have been appropriately placed in her class with a classification of because the characteristics of coincided with the characteristic of in her class (trans. 125). S he further maintained that the Student would have been appropriately placed in her class with only girl because the gender of the peer was into relevant (trans. 126). She opined that the Student would not have been by related service providers pushing into the class because the entire class was working on the same skill and there were a lot of adults to help (trans. 127). S he further opined that the Student would have fit into her class because her class had different functioning levels and the Student would have been provided with (trans. 128).

On cross, the proposed classroom teacher for September 2011 stated that both the characteristics of and involved and the need for instruction and she did not teach the class over the summer of 2011 (trans. 130-131).

THE PARENTS‟ CASE

The parent, the grandparent, the Program Director of the and the Head Teacher for the 2010-2011 school year and the Head Teacher for the 2011-2012 school year testified in support of the parents‟ claim for prospective payment/tuition reimbursement at for the 2011-2012 school year. The parents argued that the district failed to offer the Student a free and appropriate public education (“FAPE”) on both procedural and substantial grounds.

The parent testified that her daughter was placed at the after placing her daughter in a (trans. 321). She stated that she observed the public school and opined that it was not appropriate because the children were (trans. 322). She further stated that her daughter and would have because the proposed school did not have an elevator (Id.). She opined that the met her daughter‟s learning, (Id.).

On cross, parent stated that she did not recall seeing at the proposed school (trans. 323).

The grandparent testified that her granddaughter was diagnosed with a when she was a (trans. 223). She stated that she recalled that she observed that proposed school at with the parent (trans. 224). She recalled that there were in the proposed class (trans. 225). She further recalled that her granddaughter would have because she years ago and had on occasion (trans. 226). She opined that push-in services would be for her granddaughter. She recollected that because of her concerns she requested her granddaughter‟s then current head teacher accompany her on a second visit to (trans. 227). She further recollected that on the second visit to the proposed class the children were and were than her granddaughter (trans. 228). She related that her granddaughter‟s then current head teacher did not consider the proposed placement appropriate (Id.).

On cross, the grandparent stated that she observed that proposed program in June 2011 (trans. 229) She further stated that when she returned for a second visit, she did not bring her granddaughter‟s IEP with her (trans. 230). She further stated that her granddaughter attended the for years and she had visited the proposed public school class for each of those years (trans. 231).

The Program Director at the testified that that had was a school for students aged with delays in (trans. 242). She stated that percent of the students were diagnosed on the , and the other percent were not diagnosed on the , but had the same core deficits in (Id.). She further stated that there were students for the 2011-2012 school year (trans. 244) She explained that the overriding philosophy was the Developmental Individual Difference Relationship-Based Model (“DIR”) which looked at each child‟s developmental capacities and as most children had and the DIR looked for the holes in their developmental capacities and worked to have learning be intrinsically motivated so the children could take the skills they learn and generalize the skills across all areas (trans. 246). She noted that the staff included teachers, assistant teachers, providers as well as social workers, , art teachers, drama specialists, a nurse, and 3 educational supervisors and administrative staff (trans. 247). She further noted that the staff had in the DIR development (trans. 248). She explained that a social worker was assigned to each student‟s family to provide parent counseling, family counseling, sibling counseling and individual counseling (Id.). She noted that the staff was able to visit the home to further address problems (trans. 249). She described the Student as a who was , but could book with on a page. She stated that the Student was able to use a combination of (trans. 250). She further stated that the Student spoke and had significant and and was (trans. 253). She noted that the Student was placed in a class with children and a head teacher and teaching assistants (trans. 256). She described the in the Student‟s class included a in the classroom, a and (trans. 256). She stated that the parents were responsible to pay the balance of the tuition (trans. 257).

On cross, program director stated that the Student‟s class had children with a head teacher assistant teachers (trans. 258). She further stated that the Student‟s class had girls and boys and children in the Student‟s class had a classification of and child had a classification of and the Student‟s classification was (Id.). She noted that despite the tuition of $94,750 (Exh. I) and check paid by the parents of $ in February 9, 2012, (Exh. H), she did not request any financial documents from the parents (trans. 259).

The Head Teacher, a certified teacher with Master‟s degrees in childhood general education and childhood special education employed by the for years, testified that she was responsible for lesson planning, implementing lessons; she oversaw the individual programs of the children in her class and she communicated with the related service providers and the parents (trans. 261). She recalled that the Student was in her class for the 2010-2011 school year and described the Student as a , who was , but used (trans. 262). She further recalled that she visited the proposed recommended class in the spring of 2011 and did not observe a . She recollected that there was a with (trans. 263). She opined that the Student would not receive all her related services because there she did not have a diagnosis of (trans. 264). She further opined that the Student required a of , the and access to and that the Student could not in the cafeteria in a because she was and for those reasons the proposed placement was not appropriate (trans. 265).

On cross, the Head Teacher for the 2010-2011 school year stated she did not recall any in the classes at the proposed school (trans. 266). She allowed that the paraprofessional could assist the Student to properly in the in the proposed class (Id.). She stated that she participated in the March 16, 2011 IEP meeting and had written the progress report (Exh. 4) and the draft IEP was an accurate summary of the Student (trans. 267) She further stated that she did not recall a discussion of goals (trans. 268).

The Head Teacher for the 2011-2012 school year testified that she was enrolled in classes for a Master‟s degree in special education and she had a teaching assistant certificate (trans. 269). She stated that she had been employed by the since April 2010 (trans. 271). She stated that she was responsible for assessing the students and she oversaw the individual programs of the children in her class and she communicated with the parents (Id.). She recalled that for the 2011-2012 school year she had students, herself as head teacher and assistant teachers (trans. 272). She further recalled that the used the DIR methodology and she received training for weeks with a specialist and afternoons per week in DIR training (trans. 273). She stated that the Student was interested in and and that the consisted of that had that intended to (trans. 275). She further stated that the math program applied real life math concepts of number senses, measurements and time/space (trans. 276). She described the science program which was addressed through . She recalled that the Student utilized the during the school day which made her more available for learning (trans. 272). She further recalled that the Student received both as a push-in and pull-out and noted that the Student received in a class (trans. 279). She noted that she spoke with the related service providers daily and described a typical day included breakfast, a walk downstairs for a snack, and then time on the trampoline or coloring (trans. 282). She further noted that there were opportunities for socialization in morning meetings, reviewing the calendar, circle time, art and during peer socialization at recess, lunch and on the playground (trans. 285;288). She explained that the art class was taught by an art therapist and drama was taught by a drama teacher. She further explained that she taught ELA and was currently reading the fairy tale titled The Three Little Pigs and that the Student was able to “” (trans. 286). She described the the Student used included the (289). She described the community walks included the related service staff (trans. 290). She noted that she spoke with the Student‟s mother daily and because the Student‟s at home, she went to the Student‟s home to help the Student‟s mother address the Student‟s (trans. 292). She opined that the Student in her goals at the in her , and (trans. 297). She further opined that the Student was or (trans. 299). She further opined that the Student did not need a paraprofessional (trans. 303).

On cross, the Head Teacher for the 2011-2012 school year stated that the Student did not receive currently and she did not receive (trans 305). She stated that the Student received individual sessions and individual sessions per week (Id.). She further stated that the Student worked on math during Thinking Goes to School sessions and she could work on correspondence (trans. 306). She further stated that the Student did not use the every day, but only when she requested the (trans. 307). She further stated that an art teacher taught the Student in July 2011 (trans. 308). She noted that there were children in the Student‟s class aged and children were classified as , child was classified with and the Student was classified as (trans. 311). She further noted that the Student was working on the same goals as listed in her IEP (trans. 314).

FINDING OF FACT, CONCLUSION OF LAW

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). However, the New York legislature places on the district to establish the first prong. N.Y. EDUC. LAW Art. § 4404(c)(1). The district must establish the first prong one, that it appropriately ascertained the child's educational needs and prepared an IEP in accordance with the procedural and substantive requirements of Federal and State regulations (34 CFR 300.343-346, 8 NYCRR 200.3, 200.4 and 200.5). The burden of proof, including the burden of persuasion and burden of production, in … [the] impartial hearing, except that a parent … seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of [the unilateral] placement. N.Y. EDUC. LAW Art. § 4404(c)(1). Therefore, the burden of proof on the second prong rests with the Parents.

In Board of Education of the Hendrick Hudson Central School District, Westchester Cty v. Rowley, 458 U.S. 176 (1982) [hereinafter Rowley],. the Court said that, in cases brought under IDEA, the courts whether “the individualized program developed through the Act‟s [i.e., the IDEA‟s] procedures [is] reasonably calculated to allow the child to receive educational benefits (Rowley, 458 U.S. at 198). The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child‟s potential (Rowley, 458 U.S. at 198). The recommended program is the least restrictive environment for the child. In the Second Circuit Court of Appeal, in D.F. Ex. Rel. N.F. v. Ramapo Cent. School Dist., 430 F.3d 595 (2nd Cir. 2005), the Court held that, for an IEP to meet the Rowley test, “it must be likely to produce progress, not regression” and must provide for “more than trivial advancement.” (430 F.3d at 598) [internal citations and quotation marks omitted]. In an earlier case, the Second Circuit observed that the IDEA is not intended to “secure the best education money can buy” or “guarantee any particular level of education.” [(Walczak v. Florida Union Free Sch. Dist.,142 F.3d 119 (2d Cir. 1998)] (internal citations and quotation marks omitted).

The parents maintained that the IEP was inappropriate because the children in the recommended placement were classified with and not that small amount of female students in the recommended placement; the staff to student ratio of the program and the lack of pull-out related services (Exh. A at 2). The parents asserted they were denied meaningful participate at the IEP meeting because their concerns regarding the program were not addressed (Exh.B at 4). The parents further asserted that the IEP was not appropriate because the Student‟s present level of academic achievement and functional performance was not specific or measurable and there was no discussion as to how the diagnosis of affected the Student‟s education (Id.). The parents argued that the goals were vague and not measurable and there were no goals for the crisis management paraprofessional and while the IEP contained a BIP, no FBA was conducted (Exh. A at 3).

While school districts are required to comply with all IDEA procedures not all procedural errors render an IEP legally inadequate under IDEA. (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 at 381 [2d Cir. 2003]) If a procedural violation has occurred relief is warranted only if it affected the student's right to a FAPE. ( J.D. v. Pawlet School District, 224 F.3d 60 at 69 [2d Cir. 2000]) The denial of FAPE occurs when procedural inadequacies result in either a loss of educational opportunity for the student or seriously infringe on the parents‟ opportunity to participate in the IEP formation process. (Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d, 656 at 659, [S.D.N.Y., 2005]) The district asserted that the proposed program and placement were appropriate.

I find the district is not required to maximize potential. (Bd. of Educ. v. Rowley, 458 U.S. 176 (1982) and Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, [2d Cir. 1998]) Instead the school district must merely provide an IEP that is likely to produce progress not regression. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186,[2d Cir. 2005]). The school district must show that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). the Second Circuit had held that for the program to be appropriate the IEP must „“be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The parents asserted that they were entitled to a tuition reimbursement of $94,750 for tuition for a 12 month program at because the March 16, 2011 IEP was procedurally invalid and the procedural deficiencies seriously infringed on infringed on the parents participation in the IEP and resulted in a denial of FAPE. In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies (i) Impeded the child‟s right to a FAPE; (ii) Significantly impeded the parent‟s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent‟s child; or (iii) Caused a deprivation of educational benefit. 20 U.S.C. § 1415(f)(3)(E); 34 C.F.R. § 300.513(a)(2).

The parents alleged that there IEP was not appropriate because the Student‟s present level of academic achievement and functional performance was not specific or measurable and there was no discussion as to how the diagnosis of affected the Student‟s education was no discussion of the instructional levels of how the difficulties the Student had with affected the Student‟s education (IHO Exh. I at 5). I find the parent‟s own witness, the Student‟s then current teacher, acknowledged that she provided to CSE the Student‟s present level of academic achievement and functional performance and this information was accurate (trans. 267). I note that the parents‟ attorney raised the issue that there was and regarding the Student‟s functioning level, (Id.), I find that the district‟s attorney argued that 20 U.S.C. § 1415(b)(7)(iii) limits the inquiry into the provisions of FAPE to the due process request (IHO II at 3). Accordingly, I will not address the lack of a current medical evaluation. I find CSE had evaluative data. I find the Student‟s then current teacher provided the Student‟s current functioning levels and I find the CSE had the Progress Report (Exh.

4) as well as the (Exh. 2) and that the Classroom Observation (Exh. 3) and I credit the testimony of Ms. regarding the discussion of the evaluative material that CSE relied upon to develop the IEP and I find that the CSE had sufficient information of the Student‟s present level of academic achievement and functional performance.

The parents asserted that the IEP contained little information regarding the needs of the Student. The district‟s attorney asserted that the Student‟s needs were based on the Progress Report (Exh. 4 at 10) and the goals were developed from the providers who were currently working with the Student (IHO II at 12). I credit the testimony of Ms. who stated that the goals were discussed and agreed upon (trans.

32) and stated the goals addressed as as (trans. 33). I credit the testimony of Ms. and I find that push-in into the classroom would facilitate the Student‟s communication with her peers (trans. 45) I find that CSE had ample evidence of the Student‟s in the Progress Report.

The parents asserted that the IEP contained measurable goals and no goals for the crisis management paraprofessional (Exh. A at 2; IHO Exh I at 7) The district‟s attorney argued that the Student‟s then current teacher verified that those IEP goals were goals she was currently working on with the Student (IHO Exh. II at 13). I credit the testimony of the Student‟s then current teacher regarding the current goals. I further credit the testimony of Ms. regarding the discussion of the parent and advocate in the development of the goals (trans. 32). I find the IEP contained measureable goals that were specific and provided by the Student‟s then current special education teacher and related service provider. The district‟s attorney argued in her closing statement that there was no need for goals to be developed for the crisis management paraprofessional and the CSE minutes (Exh. 6) indicated that BIP included information regarding the Student‟s behavior and strategies that the paraprofessional would work on with the Student (IHO Exh. II at 15). I credit the testimony of Ms. , who stated no such paraprofessional goals were necessary because paraprofessional would be working under the supervision of the special education teacher (trans. 25).

The parents assert that the district failed to conduct an FBA. Regulations of the Commission of Education require that an FBA be completed for a child “whose behavior impedes his learning or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities.” (8 NYCRR 200.4(b) (1)[v]) I find the IEP did include a BIP (Exh. 5 at 20), but no formal FBA was conducted prior to developing the BIP. I find the SRO ruled in Appeal No. 11049, in this case and in Appeal No. 11-070 on this issue. “Although State regulations call for the procedure of using an FBA when developing a BIP, the failure to comply with this procedure does not automatically render a BIP deficient (A.H., 2010 WL 3242234). ...While the student's need for a BIP must be documented in the IEP, and prior to the development of the BIP, an FBA either "has [been] or will be conducted ("Guide to

Quality Individualized Education Program [IEP] Development and Implementation," at p. 25 [emphasis in original]), it does not follow that in every circumstance an FBA must be conducted and a BIP developed at the same time as the IEP (see Cabouli v. Chappaqua Cent. Sch. Dist., 2006 WL 3102463, at *3 [2d Cir. Oct. 27, 2006] [noting that it may be appropriate to address a student's behaviors in an IEP by noting that an FBA and BIP will be developed after a student is enrolled at the proposed district placement]).”

The district‟s attorney argued that in her closing statement that the failure to conduct an FBA did not indicate there is a denial of FAPE (IHO Exh. II at 14). See A.C. ex rei MC v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2nd Cir. 2009) (finding an IEP that addressed behavior procedurally valid even in the absence of a FBA); J.A. v. East Rampano Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 (S.D.N.Y. 2009) (rejecting a claim that the absence of a FBA rendered an IEP invalid and finding that IDEA requires only consideration of behavior interventions and strategies). I find there was a BIP included in the IEP developed for the Student. Ms. testified as to the specific discussions and considerations given to behavior interventions and strategies for the Student and included a BIP in the IEP (trans. 23). She testified she did an informal FBA (trans. 24) The district‟s attorney further argued that the failure to conduct an FBA was not detrimental to the Student as the CSE understood the functions of the Student‟s interfering behaviors, which were addressed within the BIP and with the agreement of the Student‟s then current providers (IHO Exh. II at 15) The district‟s attorney further argued that SRO ruled in Appeal No. 12-034 that where the CSE did not generate a written FBA and the CSE had information regarding the behaviors from the school and that information was incorporated into the BIP, there was no denial of FAPE (Id.).

I find the BIP did include a list of the Student‟s and was and her constant need of and support and included strategies to try to change the behavior such as , to , the use of a and support and and (Exh.5 at 20). I further find the classroom teacher for the summer program explained that there were that any student could take to and there was a with , , for and a with (trans. 101). I find this testimony was similar to the testimony of the head teacher at the . I find the BIP listed the specific strategies to remediate the Student‟s behaviors. Further, as the SRO ruled it may be appropriate to address a student's behaviors in an IEP by noting that an FBA and BIP will be developed after a student is enrolled at the proposed district placement, I credit the testimony of the classroom teacher for the summer program who stated that she participated in that targeted FBAs and how to effectively write BIPs (trans. 147). I credit the testimony of the classroom teacher for the proposed class for September 2011 who stated that she could have met the Student‟s by and she could have met the Student‟s with the BIP and giving the Student frequent in the and and (trans. 122). Accordingly, I find the lack of a formal FBA did not amount to a failure to provide FAPE.

The district‟s attorney argued that in her closing statement that the parents abandoned their claim that staff at the recommended placement recommended that the Student not attend because the parents did not address this claim during the presentation of their case. (IHO Exh. II at 16). I agree. Testimony adduced at the hearing established that the proposed summer class had children and adults, the teacher, a classroom paraprofessional. Had the Student been placed in the proposed class there would have been an additional crisis paraprofessional so the staffing ratio would have been children and adults. I credit the testimony of the classroom teacher for the summer program who stated that the Student could have appropriately fit into her class (trans. 178;181;184) I further credit the testimony of the assistant principal who stated that the student was have been appropriately placed in the proposed summer class. I further credit the testimony of the classroom teacher for the proposed class for September 2011 who stated that there were children and stated that the Student would have fit into her class (trans. 128).

The parents argued that the Student would not have received her mandated related services and would have received (Exh. A at 2). I credit the testimony of the AP who stated that all the students in each class received their mandated related services (trans. 74). I further find there was no testimony or evidence adduced at the hearing to establish that would be provided in the hall. I credit the testimony of the proposed teacher of the summer program who stated that the provider pushed in to help the students with the class (trans. 167 ).

The parents‟ attorney asserted in her closing statement that the proposed placement was not appropriate because there was no elevator and the Student would have had to the floor (IHO Exh. I at 2). I credit the testimony of the proposed teacher of the summer program who stated that the provider pushed in to help the students walk up or down the stairs with the class (trans. 167). Further in Appeal 11-042,the SRO addressed school size and held that the “size of the parents' concerns regarding the size of the assigned school and general education classes, had the district been required to implement the student's IEP, are not supported by the preponderance of the evidence contained in the hearing record (see generally, M.H. v. New York City Dep't of Educ., 2011 WL 609880 [S.D.N.Y. Feb. 16, 2011], citing Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004]).”

The parents asserted that the Student would have been distracted by push-in services (Exh. A at 2). The district‟s attorney argued in her closing statement that the AP and the classroom teacher of the proposed class stated that if the push-in related services were too distracting, then the accommodations could be made (IHO Exh. II at 17), I credit the testimony of the AP and the classroom teacher for the proposed class for the summer program as to the determination on an individual basis as to benefit of push-in rather than pull-out related services. I credit the testimony of the classroom teacher for the proposed class for the summer program who stated that had the push-in related service been too distracting for the Student, then all services would have been pull-out (trans. 192) I further find that testimony adduced at the hearing failed to establish that push-in related services would have been too distracting to the Student as the Student received push-in related services in the . I credit the testimony of the head teacher who stated that the Student received , both as a and noted that the Student received in a (trans. 279).

The parents asserted that proposed placement failed to contain sufficient (Exh. A at 2). I credit the testimony of classroom teacher of the proposed class for the summer program of the with , , and a with (trans. 101). The district‟s attorney argued in her closing statement that the Student did not have access to the every day, but had access to the in the classroom (IHO Exh. II at 19). I find the in the proposed class similar to the at the . I further find that there was inconsistent testimony as to whether and when the Student had access to the at the .

The parents asserted that the Student would not have been appropriately placed at the because she was girls in the class (Exh. A at 2). The SRO has ruled that the proposed placement composed of was not inappropriate in terms of the gender needs of a student. The SRO held that the gender composition of the class did not render the class inappropriate for the student in Application of the New York City Department of Educ., Appeal No. 10-036.

The parents asserted that the children in the proposed class were for the Student as the students were expected to sit an individual schedule (Exh. A at 2). The district‟s attorney argued in her closing that the Student was able to reference her own and (IHO Exh. II at 20). The district‟s attorney argued that it was disingenuous for the parent “to criticize for having students use and follow individual schedules and sitting at their desks when the student employs the at the School” (Id.). I agree. I further find testimony adduced at the hearing established that the Student was appropriately grouped in children with similar academic needs, similar related service needs and similar behavior needs in the proposed class for the summer program and the program beginning in September 2011. I find testimony adduced at the hearing established the classroom teacher for the summer program and the program beginning in September 2011 could have implemented the academic goals and implemented the IEP. Moreover, while I find the majority of the students in both the proposed summer program and the proposed program beginning in September 2011 were classified as , I credit the testimony of the proposed classroom teachers who stated that the functioning levels of the Student who had a classification of was similar to the functioning levels of the children in the proposed classes.

Based on the foregoing, I find that the district demonstrated the Student‟s IEP and program were appropriate for the 2011-2012 school year.

ORDER

The parents‟ claim for reimbursement/prospective payment for the tuition for the program at the for the 2011-2012 school year is denied. Dated: July 9, 2012

______________________________

LINDA S. AGOSTON, ESQ.

Impartial Hearing Officer

LSA: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 ON FEBRUARY 14, 2012

DEPARTMENT OF EDUCATION

1 Due Process Response, 12/12/11, 4 pp. 2 Evaluation, 10/7/10, 4 pp. 3 Classroom Observation, 10/20/10, 2 pp. 4 School Progress Report, 12/10, 11 pp. 5 IEP, 3/16/11, 20 pp. 6 IEP Minutes, 3/16/11, 2 pp. 7 Notice of Recommended Deferral, 3/16/11, 1 p. 8 Final Notice of Recommendation, 6/17/11, 1 p.

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 2, 2012

PARENT

A Impartial Hearing Request, 12/8/11, 5 pp. B Program Description, Undated, 4 pp. C IEP, 3/16/11, 20 pp. D Final Notice of Recommendation, 6/17/11, 2 pp. E Ten-Day Notice, 6/15/11, 2 pp. F Class Schedule, 2011/2012, 1 p. G Progress Report, 2011/2012, 13 pp. H Affidavit of Payment, 2011/2012, 1 p. I Enrollment Contract, 2011/2012, 6 pp. J Parents' 2010 Tax Returns, 2 pp. K Proof of Payment, Various Dates, 2 pp.

POST HEARING SUBMISSIONS

IMPARTIAL HEARING OFFICER

I Parents‟ Closing Statement, 6/25/12 19 pp. II District‟s Closing Statement, 6/18/12, 25 pp.