New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: February 9, 2012

February 29, 2012

April 24, 2012

Actual Record Close Date: May 11, 2012

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 9, 2012

Advocate — Parents

Parents

Parents

Director of — Student

Guidance Counselor — DOE

Senior Special Education Program (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 29, 2012

Advocate — Parents

Parents

Parents

Pediatrician (via telephone) — Parents

Parents

Director of — Student

Social Worker (via telephone) — DOE

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

Advocate — Parents

Parents

Parents

Director of — Student

On December 13, 2011, I was appointed the Impartial Hearing Officer (“IHO”) to conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act, regarding a dispute between the Parents of a ( ) year old student and the New York City Department of Education (“DOE”) - District , concerning the student’s special education program. After having adjournments granted on consent or for cause, the impartial hearing was held on February 9, 2012, February 29, 2012 and April 24, 2012. A list of the persons appearing at the hearing and the documents received in evidence is annexed hereto.

BACKGROUND

This case involves a ( ) year old student placed at a private school for the 20112012 school year. (See Due Process Complaint - “DPC”) The Parents herein challenge the student’s June 14, 2011 Individualized Education Program (“IEP”) on procedural and substantive grounds. (Id.) That IEP recommended the student’s placement at a New York State approved day residential school. (Id.) The Parents rejected two such schools. (Id.) The Parents allege that there was a second Committee on Special Education (“CSE”) meeting (unspecified) where they requested a “ ” program for the student and accepted a placement for the student at a public school. (Id.) The student has since been offered a placement at a private school in . (Id.) The Parents request the following relief:

(a) The student’s placement in the “ ” program and/or reimbursement or direct pay for the student’s tuition at the private school for the remainder on the 20112012 school year.

(b) The DOE to directly pay for the cost of the student’s related services for the 2011-2012 school year.

(c) The DOE to provide the student with school bus transportation to and from either the student’s public school or the private school in . (Id.)

THE DOE’s CASE

The DOE argues that the program would not provide the student with a “free and appropriate public education” (“FAPE”). (T-22) The agency had a clear rationale for deferring the case to the Central Based Support Team (“CBST”). (T-22-3) The Parents’ request is the outgrowth of a personal preference to keep the student with his together at the program. (T-23)

The DOE called (3) witnesses to testify on its behalf and submitted (16) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness is a school counselor. (T-26) She works with the program as the parent liaison. (T-27) The student attended their “ ” for the 2010-2011 school year. (T-28) He exhibited some that was a concern. (T-29) Not all students move from the program to the program. (T-30) The student required constant support throughout the day. (T-31) In order to do his tasks he would always have to have a teacher or paraprofessional with him. (Id.) The class had a staffing ratio of . (T-31-2) The ratio in a program is “ICT” classroom. (T-32)

The witness stated that in the program the children have to function independently. (T-33) are not what a typical child looks like. (Id.) The student has a (T-34) The minimum criteria for admission into the program require that the child demonstrate . (Id.) The student’s was also . (T-35) His . (T-36)

The witness stated that she was present during the student’s “ ” IEP conference. (T-37) They had recommended a small class in a non-public school for the student. (Id.) She believes that the Parents visited the two recommended non-public schools. (T-37-8)

On cross examination, the witness testified that she believes the student has an IQ which is IQ of . (T-40) The school psychologist measured the student’s IQ. (Id.) The reports concerning the student’s needs are based upon teacher observations and communications. (T-41) The student had his own individualized daily flow schedule. (Id.) The have a consultant that came up with a plan for the student which was shared with his Parents. (T-42) The teacher the and the paraprofessionals met to discuss on how to implement the plan. (T-43) There was no substantive testimony developed during the witness’ re-direct examination. (T-44) There was no re-cross examination of the witness. (Id.)

The DOE’s second witness is the coordinator of the ASD program which includes the program. (T-48) The student’s mother explained to her that the student and his had attended the program the previous year and she wanted the student to move into the program with his . (T-49) Not all of the students go into the program. (T-50) The student’s mother provided her with a sizable packet that included a Evaluation dated April 21, 2011. (Id.) The evaluation recommended the program. (T-51)

The witness stated that there was documentation that the witness , that his IQ was in the and that he needed support. (T-52) Students entering the program are required to be able to . There are no paraprofessionals in the program. (Id.) The student was not recommended for the program. (T54-5) He was recommended for a which the student’s mother accepted. (T-55) The student’s mother was very concerned that the student was . (T-57)

On cross examination, the witness testified that she believes the student’s IQ score was in the . (T-59) There was an observation conducted of the student. (Id.) The program exists in only city schools right now. (T-62) There was no re-direct examination of the witness. (T-63)

The DOE’s third and final witness observed the student on November 9, 2011. (T-69-70, 74 & D-5) She is a social worker in a school who has a “level

1 ABA certification.” (T-72) The student did not present as an appropriate student for the program. (T-75) The student was in a class with ( ) students and ( ) adults, one of which was assigned to him. (T-76) The children in a program are fairly independent. (Id.) The program is very verbally-based, so the students need to at least have average or above average cognitive ability. (T-77) It is a pretty rigorous curriculum in terms of the DOE standards. (Id.) Children with IQ’s in the student’s area have not made it in the program. (T-78) The grade class has ( ) students. (Id.) There is some support but not constant intensive supports. (Id.) The student would need a “ ” in the program. (T-79) The witness stated that the program fosters independence and a regular curriculum. (T-80) “ ” changes the dynamics. (Id.)

On cross examination, the witness testified that a teacher also observed the student. (T-82) They use a 30-minute observation scale called the “ .” (T-83) She was able to watch the student in the classroom and saw that he was able to and the . (T-85) She did not participate in any meetings concerning the student’s application for the program. (Id.) She did not perform any evaluations on the student. (T-86)

On re-direct examination, the witness testified that during her observation she spoke with the student’s teacher. (T-87) The teacher said that the student appeared to be on a grade level. (Id.) ABA is not used in the program. (Id.) There was no re-cross examination of the witness. (T-88)

THE PARENT’S CASE

The Parents argue that the DOE’s recommendations for the student to attend a New York State approved private day program are not appropriate because the placements were too restrictive. (T-24) The student is in his program. (Id.) The program is an appropriate special education program for the student. (Id.)

The Parents called (3) witnesses to testify on their behalf and submitted (13) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parents is as follows:

The Parents first witness is a pediatrician who initially evaluated the student and continues to follow him. (T-90) She is a medical practitioner. (T-91) She is certified in developmental behavioral pediatrics and neurodevelopmental disabilities in children. (T-

92) She is not a psychologist or a special educator. (T-93) Autism is the most frequently seen developmental disorder. (T-94)

The witness stated that her goal and mission is not only to evaluate the student but also to function as the student’s advocate. (T-95) She works with a psychologist, special educators and has visited some schools. (Id.) She was involved with the program from its inception in Queens ( ) years ago. (T-96) The program is appropriate for children with . (Id.) As a medical practitioner, she is not allowed to perform standardized full psychological testing that determines IQ. (T-99) They are allowed to perform some abbreviated IQ testing like the “Intelligence Quotient.” (Id.)

The witness stated that she has seen certain classes. (T-101) The class is usually in District specialized schools. (Id.) They have mostly children with who are not functioning at grade level and have , which prevent them from functioning in a general education setting or inclusionary classroom at the grade and age level. (T-102) She personally evaluated the student and supervised his evaluations. (T-

103) “High functioning” refers to students who are in the average range of intellectual and cognitive functioning. (T-103)

The witness stated that the student has a with a . (T-107) The student did , and needed . (T-107) The student did well in his academic scores which means that he is definitely in the . (T-108) The student functioned as a different child when he was not receiving appropriate behavior modification. (T-109) She recommends the program because it has an inclusionary environment. (Id.) She does not know why the student was not accepted. (T-114) She strongly recommends for the student because no other program fits him. (T-114) The student is not . (T-116) She sees him in a community setting because he can . (Id.) The student is academically and cognitively in the of functioning and . (T-117)

On cross examination, the witness testified that she has not visited the program. (T-123) She has talked to the staff. (T-124) She recommended that the student . (T-125) She has heard that the student can have , but he her office. (Id.) She has not evaluated the student since April 21, 2011. (Id.) She knows the criteria and has a lot of patients in the program. (T-127) More than (50) to (75) of her patients are in the program. (T-128) There was no re-direct examination of the witness. (T-132)

The Parents’ second witness has worked with the student’s since 2008. (T-133 & 136) She is a New York State licensed . (T-134) She has worked for the last ( ) years with students who have . (T-135) She evaluated the student. (Id. & P-B)

The witness stated that when she started to work with the student he had , did not have joined and his . (T-136) The student has made in the areas of , and his are phenomenal. (T-137) The student was complaint in his with appropriate support. (T-138) The student is not a by any means in terms of his . (T-139) “ ” is which the student has . (T-141)

The witness stated that she attempted many times to collaborate with the student’s , classroom teacher and the ABA specialist and received little to no response. (T-142) She attended a CSE meeting for the student in May of last year with a social worker, , a guidance counselor, the classroom teacher, the and the student’s Parents. (T-

143) She believes that the staff felt that the program was not appropriate for the student because of his at that point. (T-144) They recommended a and a teacher assistant for the student all day. (Id.) The student had some and but only in a . (T-145) She witnessed those before, but the student is easily . (Id.) She found that the teacher and teacher assistant working with the student did not have experience in working with students with . (T-147)

The witness stated that the student is a but requires for his component as well as maintaining his skills. (T-148) She knows the program through observation of her clients that attend the program. (T-149) is specifically for with . (T-150) The student meets the criteria. (Id.)

On cross examination, the witness testified that the student receives services times a week for ( ) minutes. (T-150) For a portion of that time, the student’s joins them. (T-151) are done in the classroom in the program and a collaborative approach is used. (Id.) The student would do well in a so long as the functions of his are identified. (T-152) She believes the DOE wanted to get the student out of their program because of the he was exhibiting at that time. (T-154) Last year she was in the student’s classroom about times and spent about an hour there. (T-154-5) She does not recall any other options that were discussed at the CSE meeting. (T-155)

On re-direct examination, the witness stated that she went to the with the student and he . (T-160) There was no substantive testimony developed during the witness’ re-cross examination. (T-160-2)

The Parents third and final witness is the student’s mother. (T-167-8) She testified that the student was diagnosed with “ ” and received services from Early Intervention including “ ”, “ ”, and special instruction. (T-168-9) The student was years old when he started the program. (T-169) The program prepares children to go into the program. (T-170) The program is designed for students on the such as the student, who . (Id.) The program really doesn’t focus on academics. (Id.)

The witness stated that in November during the 2010-2011 school year, the student started showing . (T-171) The student’s included other kid’s , and at . (T-172) The DOE’s main strategy was to which she did not agree with. (Id.) The student was that way because he was not receiving positive reinforcement. (T-172-3) The student’s was also in the program and received a lot of . (T-173) In a couple of weeks, the student’s . (Id.) However, the DOE had already decided who was going to move into the program and the student did not make the cut. (T-174)

The witness stated that all of the professionals strongly believe that the student needs to be in a program with typically developing students. (Id.) Unfortunately there aren’t any such programs available except for the program. (Id.) Academically, the student always did well. (T-175) The program has

(12) students with a special education teacher and a regular education teacher. (T-176) During the 2011-2012 school year at parent teacher conferences, the teacher said that the student was doing very well academically. (T-178) The teacher was going to recommend a “CTT” classroom for the student’s next year. (Id.)

The witness stated that the student’s is in the program. (T-178-9) They don’t want the s in the same classroom because that did not work well for them. (T-179) They were initially offered a placement in a community school and they were concerned whether the student would have a paraprofessional. (Id.) They were told that the student is not eligible for a paraprofessional. (T-180) She visited the DOE recommended school before it was offered through the CBST. (T-181) They felt that the students in the recommended class were the student academically and some of the kids were exhibiting . (Id.) Because the program focuses so much on academics and not on any of the issues pertinent to children on the it is not an appropriate placement for the student. (T-184) The student does than his . (T-185) In the beginning of the year, they found the student , she assumes because of the and nobody knew how to deal with it. (Id.)

On cross examination, the witness testified that the student’s is not indicative of a student that is accepted in the program. (T-186) On re-direct examination the witness testified that the student experienced for three months. (Id.) His current teacher has not reported any . (Id.) There was no re-cross examination of the witness. (Id.)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

SRO Decision 06-037 states in relevant part:

One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1482)5 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347).6 A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch.

Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id. at pp. 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir.

2000]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b)

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, 206-07 [1982]). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Bd. of Educ., Appeal No.

06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

I first turn to the question of whether the DOE has provided the student a FAPE for the 2011-2012 school year. The relevant IEP was created in June of 2011. (DPC & P-H) It was attended by a special education teacher, the student’s mother and father, a district representative, a school , a , an , a and a guidance counselor. (P-H)

Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and

(10) if appropriate, the student. Accordingly, I find that the student’s CSE in June of 2011 was duly constituted under law.

The student’s Assessment Report dated May 5, 2011 indicates that the student performs better on . (P-G) The student is said to have with responding to “ . (Id.) He in both . (Id.) The report also finds that the student meets the criteria for “ ” and that he is “ ” in regards to . (Id.) He recommended for placement in a small classroom setting which provides a approach to learning. (Id.) The student is recommended to be around typically developing children on a daily basis to serve as peer models. (Id.) The student is not recommended for placement in a setting with only children on the as he is for that type of setting. (Id.) The report concludes with a recommendation that the student have a low teacher to student ratio, that he receives , , preferential seating in class and extended time of task and test. (Id.)

The student’s pediatrician testified that she strongly recommended the program for the student. (T-114 & P-F) She identified herself as not just an evaluator, but also a “student advocate.” (T-95) However, she also noted that the student did very easily, and needed . (T-107) She conceded that the student functioned as a when he was not modification. (T-109) She also stated that she heard that the student can have , although he didn’t have one in her office. (T-125)

The student’s June 2011 IEP recommends that the student be placed in special class in a community school in a setting. (P-H) The IEP recommends that the student receive counseling and services, services and services. (Id.) The student is recommended to participate in the same assessments given to general education students. (Id.) The student participates in all school activities with general education students except for . (Id.) He was also given special transportation accommodations by the DOE. The student was not given a “Behavior Intervention Plan” (“BIP”). (Id.)

As noted above, “An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” (Supra) The student’s IEP appropriately classifies the student as having autism. (P-H) It recommends a small class consist with the recommendation in the student’s assessment report, while also offering him access to general education students. (Supra)

The Parents’ request that the student be placed in a program is inconsistent with the student’s needs and program requirements. There is a consensus that the student has exhibited and that he requires support throughout the day. (T-29, 31, 52, 79, 109, 138, 145, 171-2 & 186) Although the student’s mother testified that these (T-173 & 186), her testimony also indicated that the had stopped after the student’s IEP meeting and the agency’s determination not to move the student into the program. (T-174) The law is clear that hindsight is not a basis for questioning the appropriateness of an IEP, but that the IEP should be judged as a "snapshot" of the student at the time of the CSE meeting. (See SRO No. 03-011, citing Roland M. v. The Concord School Committee, 910 F.2d. 983 at 922 [1st Cir. 1990]) The student’s June 17, 2011 IEP was appropriate for him at that point in time.

Additionally, there is evidence in the record that the program is not appropriate for the student. The program is geared towards students with IQ’s and the student’s IQ is . (T-34-6, 59 & 77) There are no paraprofessionals in the program and students are required to function , but the student in this case is said to require assistant. (T-31, 52, 76 & 79-80) Finally, the grade program has ( ) students, which is a larger class than recommended by the DOE in alignment with the recommendation in the student’s assessment. (T-78 & P-G)

As stated above, a FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is “reasonably calculated” to enable the student to receive educational benefits. (See Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]) I find that the student’s June 17, 2011 IEP is “reasonably calculated” to provide the student an educational benefit. For all of the reasons stated herein, I further find that the DOE did offer the student a FAPE for the 2011-2012 school year.

Having found that the DOE did offer the student a FAPE for the 2011-2012 school year, the necessary inquiry is at an end. I note that the record is completely devoid of any evidence that the student has been or will be placed in a private school. Accordingly, the Parents request for “tuition reimbursement and/or direct pay” for the student’s attendance at a private school must be denied. The student’s June 17, 2011 IEP indicates that the student is being provided with school bus transportation. Accordingly, the Parents’ request in that regard is moot.

NOW therefore, it is hereby

ORDERED that the Parents’ request that the student be placed in the program and/or receive tuition reimbursement and/or direct pay for the student’s attendance at a private school and direct pay for the student’s related services, for the 2011-2012 school year, is DENIED. Dated: September 5, 2012

_______________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request, 12/12/11, 1 p. B Evaluation, 1/1/11, 15 pp. C Revisit, 2/8/11, 3 pp. D Revisit, 3/1/11, 3 pp. E Revisit, 3/15/11, 3 pp. F Revisit, 4/21/11, 3 pp. G Report, 5/5/11, 15 pp. H IEP, 6/17/11, 18 pp. I IEP, 5/19/11, 16 pp. J IEP, 6/30/11, 18 pp. K Letter to the CSC, 6/15/11, 1 p. L Letter to the CFC, 6/28/11, 1 p. M Final Notice, 6/30/11, 1 p.

DEPARTMENT OF EDUCATION

1 Request for an Impartial Hearing, 12/12/11, 3 pp. 2 Intensive Agreement, 9/24/10, 1 p. 3 Minimum Criteria for , Undated, 3 pp. 4 Classroom Observation, Undated, 1 p. 5 Program Consideration Observation, 11/09/11, 2 pp. 6 Program Brochure, Undated, 2 pp. 7 Letter Declining CDST Placement, 6/15/11, 1 p. 8 Disagreement with Placement Recommendation, 6/28/11, 1 p. 9 Program, 1/12/12, 1 p. 10 Brochure, Undated, 2 pp. 11 Revisit, 4/21/11, 3 pp. 12 Evaluation, 1/1-02/11, 15 pp. 13 Progress Report, 3/4/11, 2 pp. 14 Assessment, 4/17/11-4/29/11, 15 pp. 15 IEP, 12/19/11, 17 pp. 16 IEP Program Signatures Sheet, 12/19/11, 1 p.