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: July 26, 2011

August 12, 2011

September 15, 2011

December 14, 2011

January 12, 2012

January 20, 2012

February 13, 2012

Actual Record Closed Date: March 20, 2012

Hearing Officer: .

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 26, 2011

Attorney — Student

Chief Paralegal — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 12, 2011

Attorney (Via Telephone) — Student

Attorney (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 15, 2011

ESQ., Counsel for Parents (Via Telephone) — Student

ESQ., Counsel for — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 14, 2011

ESQ., Attorney — Student

ESQ., Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 12, 2012

Attorney — Student

Attorney (Observing) — Student

Mother — Student

Attorney — DOE

School (Via Phone) — DOE

Assistant Principal (Via Phone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 20, 2012

Attorney — Student

Attorney — Student

Parents

Pathologist at (Via telephone) — Student

Teacher at (Via telephone) — Student

Assistant Principal at (Via telephone) — Student

Therapist at Via telephone) — Student

DOE Attorney — DOE

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

ESQ., Attorney (Via Telephone) — Student

ESQ., Attorney (Via Telephone) — Student

Parents

Special Ed Teacher (Via Telephone) — Student

Director (Via Telephone) — Student

(Via Telephone) — Student

ESQ., Attorney — DOE

INTRODUCTION

On January 12, 2012, an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the parents’ allegation that the Department of Education (DOE) failed to provide a FAPE to . (“the student“) for the 2011-2012 school year. The hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 9:30 a.m. and was continued on January 20, 2012 at 9:30 a.m. and February 13, 2012 at 9:30 am.

A list of exhibits that were admitted into evidence is attached to this decision.

BACKGROUND

On May 2, 2011, the parent filed a request for an impartial hearing. Apparently, the prior hearing officer held several days of hearing commencing in July 2011 regarding the issue of pendency. On September 9, 2012 , the parent’s counsel filed an amended request for an impartial hearing alleging 69 reasons why she believes the DOE denied the student a free appropriate public education (FAPE) including but not limited to: 1) the Committee on Special Education (CSE) team was not properly constituted; 2) the DOE recommended program was not reasonably calculated to provide FAPE; 3) there were no timely critical assessments; 4) the Individualized Education Program (IEP) does not provide for parent training; 5) there was no Functional Behavioral Assessment (FBA); and 6) the Behavior Intervention Plan (BIP) was inappropriate. On September 15, 2012, the prior hearing officer issued an Interim Order for pendency. On September 21, 2012, the parent filed an amended request for impartial hearing. On September 21, 2011 this IHO was assigned to this matter after the prior hearing officer recused himself. On September 22, the prior hearing officer issued an amended Interim Order for pendency.

A motion to schedule was sent on October 13, 2011. On December 8th 2011, a pre-hearing conference was scheduled for December 14 and was adjourned to December 16th, 2011. The hearing was scheduled for January 12, 2012 and January 20, 2012. The hearing took place on those two days but the parties informed the Impartial Hearing Officer (IHO) that they required an extra day because one of the witnesses was unavailable. The parties requested an extension of the timeline. The IHO granted the request and the final day of hearing was held on February 13, 2012. The parties requested an opportunity to submit pre-trial briefs and to extend the timeline once again. The requests were granted. The briefs which are being submitted herewith were received on March 20, 2012.

THE PARENTS’ POSITION

The parents contend that the student’s public school placement for the 2010-2011 school year as recommended on the student’s IEPs and by the FNR did not provide the child with FAPE. The parents contend that the student should have remained at the ”) where he has been attending for several years. The parents contend that the DOE should reimburse the parent for the tuition which she paid to for that school year as well as for the cost of at-home ) and ) services which the parents obtained and paid for.

THE DOE’S POSITION

The DOE contends that the IEP team was properly constituted and contained all of the necessary information and that the public school recommendation would have provided the student with a FAPE. Thus, the DOE contends that the DOE should not have to pay tuition at for any portion of the 2010-20111 school year. The DOE further contends that it is not responsible to pay for the at-home services, which it refers to as “extended day” services.

THE EVIDENCE PRESENTED

The student was and at the time of the CSE review. (DOE Ex. 3) The student is classified as having . (DOE Ex. 3) The student has been attending a private school located in expense. (Parent’s Ex. B) On April 12, 2010, an IEP was created. (DOE Ex.3) The CSE recommended that the student attend a twelve-month placement in a public school setting with related services. Id. at 3.1,10.

The DOE presented several witnesses in support of its position that it provided a FAPE to the student for the 2010-2011 school year.^[1]

, the school from CSE region , testified that she sat on two CSE reviews for the student on 2008-2009 and 2009-2010. She acted as the DOE and District Representative. She also did one or two observations of the student. (T.

176). Before the 4/12/10 IEP meeting, Ms. did an observation of the student at ( T. 173). At the observation, she saw the student working with a at all times. (T. 175). She said prepared an observation report, which was not admitted into evidence, which was used during the CSE meeting. In developing the IEP, Ms. also utilized documents and progress reports that were provided to her by . ( T. 184).

The providers of ) and ) were present at the meeting for part of the time. The mother did not object. They said they could not attend the whole meeting. The meeting was 2- 2.5 hours. (T. 179) At the meeting, the parent said that she intended to keep the student at because she did not want a public school. She asked the parent if she wanted an individual education service plan (IESP) or an IEP. She explained that the IESP was for children attending private school to determine the supports needed at the private school setting with related services. The parent initially selected the IESP and then after speaking with her attorney, she said she needed an IEP. The mother stated that she did not want a public school setting but did not state why. (T. 180)

Ms. testified provided many documents for the CSE to consider including , and progress reports. (T. 184) The CSE considered DOE Exs. 8-13 as well as the written observation report.

The CSE recommended a class with related services including a full time paraprofessional. (DOE Ex. 3.1, 3.23). Ms. stated that no one at the CSE meeting objected to these recommendations. The CSE did not consider because the parent has asked for an IEP to attend a public school. She believes that the recommendations were appropriate for the student because he needs a small class with support. In her opinion, anything more restrictive would be excessive. (T.190-191) She said that the child has difficulty focusing and there are a lot of distractions in the classroom at (T.

191) Ms. testified that the child had academic deficits in reading, listening, comprehension and math all of which were addressed in the goals in the IEP. The form of academic measurement was to be determined by the providers and teachers. The student’s included , which would be addressed by the (T. 193) She agreed that the child needed a lot of prompting and cues. (T. 192) She drafted the goals. The academic and some speech goals were drafted by Ms. . T. 201. Ms. testified that the method to measure the student’s progress would be determined by the person who addressed that goal. (T. 195, 196, 197). The IEP does not indicate how the related services would be implemented, whether through a push in or pull out method. (T. 211). That decision was to be made by the providers. (T. 254).

All goals were created at the CSE meeting. No one at the CSE meeting objected to any of the goals. Ms. stated that no one objected to the mandated amount of on the IEP,

She testified that no one raised extended day or home-based services at the CSE meeting. In her opinion, the student does not need either. (T. 234). In her eight years as a CSE and district representative and in the hundreds of IEP meetings she has attended, Ms. does not recall ever putting an extended day program on an IEP. (T. 169, 172, 237).

She does not recall if she sent out the student’s IEP to his mother. (T. 238). Ms. did not know why it took over two months to send out the student’s IEP. She did not provide a copy of the IEP to (T. 252).

Ms. testified that placement was not discussed at the student’s IEP meeting because placement is determined after the IEP meeting. (T. 242). She did not complete the District referral form. (T. 243). She does not recall any discussion at the IEP meeting regarding the parent’s opportunity or lack thereof to speak with a placement officer. (T. 244).

Ms. stated that a was created to address the child’s social and deficits. The goals on the IEP were prepared with everyone in agreement. The IEP was prepared at the meeting based upon the child’s needs as addressed at the meeting. She stated that with regard to the observation, the DOE complied with SOPM procedures. The IEP does not specify pullout for but leaves it up to the providers to determine how the services will be provided.

Ms. stated that both transportation and parent training were programmatic elements of a program and is offered automatically but is not placed on the IEP. The and were developed and created for the child prior to the IEP meeting. She testified that the school conducted an and she created a “worksheet” at the CSE meeting and presented the data orally. The frequency and duration of the behaviors as well as antecedents were considered in preparing the . Ms. stated , however, that her “worksheet” did not include the frequency and duration of the student’s behaviors. (T. 249). She testified that a teacher looking at the would not be able to determine the .

(T. 250). Such data is in the student’s file. Id.

Ms. further testified that she has observed the student a few times. Her observations lasted about an hour each time. The CSE did not consider a more restrictive program than and there was no program available at the recommended school. She stated that the student did not require with all day long and that could meet the student’s needs.

Ms. was unsure if the person reading the student’s IEP would know his previous methodology was ). (T. 289). Ms. testified that transition is something that the CSE’s program recommendation should address. But, she Ms. did not recall any conversation regarding the student transitioning into the DOE. placement. (T. 294). The CSE failed to develop any formal transition plan for the student and no transition goals were created within the student’s IEP. (T. 295; Parent’s Ex.C). Ms. testified that the staff in the proposed placement would handle the student’s actual transition. (T. 295).

is the . (T. 321). During the 2010-2011 school year, had and students. (T. 325). He testified that in July 2010 there were approximately students at the site in . All of them have IEP’s.

There were three classrooms for each with a ratio. (T. 326) He stated that the students first had breakfast. They then had an instructional day in addition to gym and computers. In the afternoon, the students went on trips in the community including museums, movies and community walks.

He has never met the student but has reviewed the 4/12/10 IEP. (T.360) based upon that review, he stated that Ms. would have been the student’s classroom teacher. Ms. is a certified special education teacher who employs the and methods in the classroom. That class had or students that summer. He testified that the student would have receive a para the day he walked in. (T. 420) He stated that parent were available upon request through an agency which provides training however, it was difficult to obtain such and training during the summer months. (T. 331-332).

Mr. stated that the DOE’s proposed placement for the student would not have been able to fulfill his related service mandates. (T. 333). He also stated that the student would not have been have been able to receive his related services of at the recommended site. (T. 333).

Mr. testified that other students in the proposed school had mandates, but he did not know whether any of those students actually received services during the 2010-11 school year. (T. 334). Mr. stated that the school did not have an on its staff until March, 2011, more than eight months after the start of the 2010-2011 school year. (T. 341, 414). Mr. does not know of any other students with a mandate for 45 minute sessions. (T. 350).

For therapy, Mr. testified that the most the student would have received in the 2010-11 school year would have been three times a week for 30 minutes and once a week for 30 minutes in a 1:2. (T. 337). Mr. testified that the school was unable to fulfill the student’s 60 minute mandates for , because there were not enough teachers. (T. 396). The school would only have been able to meet the paraprofessional mandate. (T. 334). Transportation would have been offered .

Mr. testified that unfulfilled services could be provided through RSAs. (T. 336). The parent would have been given an RSA to obtain them on her own and the DOE would have covered the cost of the services as mandated on the IEP. However, Mr. stated that RSA letters would likely not be sent out – at the earliest – until the last week of July, first week of August. (T. 399). The parents would need to find providers whom he stated would be very difficult to find in the summer. (T. 399).

He testified that the teacher, the para and the related service providers would have worked on the student’s goals together. Mr. stated that there is no transition plan included in the student’s IEP. (T. 340-341).Transition strategies would have been addressed on the first day of school with a teacher with input from the parent.

Mr. testified that based on the student’s IEP, he would have been placed in the classroom of Ms. but since the child did not actually attend the school, the decision was never finalized. (T. 329, 402-403). He stated that is the instructional method that was used by Ms in the proposed classroom. (T. 358). He did not know the functional levels of the other students in that classroom. (T. 406).

Mr. testified that in September, the high school age students would transfer to another location. (T. 363). Additionally, Mr. testified that he is sure that the classroom staff in Ms. ’s class would have changed in September. (T. 409)

All of the students in the school attend lunch together. T. 366. The classroom paraprofessional is with the student through the entire day, except for the lunch period.

T. 418. Paraprofessional’s in NYC must at least have a high school diploma. (T. 421). There is no extended day program at the proposed school. (T. 419).

was the student’s proposed teacher. (T. 329). Ms. has been working with the DOE for years. Her last training in behavior modification was approximately twenty years ago. (T. 580-581). She stated that she uses the methodology. (T. 583). Each day, the students in her class received approximately 30-45 minutes of direct instruction. (T. 585). The 2010-2011 school year was Ms. ’s first year teaching such a 6:1:1 class, as she had previously taught a classroom. (T. 599). She believes that all the paraprofessionals in her classroom have a high school degree. Id. She has never had students start in July they always came in September. (T. 603).

The functional levels of the students in her class ranged from . (T. 588, 598). Ms. also admitted that none of the students in her July class would have been good models for the student. (T. 591). She felt that the student’s behaviors were “ compared with the other students.” (T. 593). That school year was also her first teaching a student with a . (T. 599).

attended the April 12, 2010 IEP meeting. (T. 664). The student’s 2010-2011 IEP was developed with the classroom teacher and his primary therapists along with input from the student’s mother. (T. 614). The parent was not given a copy of the IEP at the meeting. (T. 665). The DOE failed to conduct any new evaluations. (T. 666). She was not told her that she had the right to speak with a placement officer or that she had the right to individualized parent training on the IEP. (T. 667-668).

Ms. does not recall a being created at the IEP meeting nor did she recall anyone completing or discussing an fba. (T. 668). As of June 14, 2010, The student’s parents had not received a FNR, and notified the DOE by letter. (Parent’s Ex.G, T. 675). When Ms. finally received the June 22, 2010 FNR, she immediately made an appointment to visit the recommended placement. (T. 676).

On June 27, 2010, Ms. wrote the DOE rejecting the proposed placement as are inappropriate. (T. 677, Parent’s Ex. E). In this letter, she noted a number of concerns and issues they had with the proposed placement. (T. 678, 703, Parent’s Ex.E) The DOE never responded to this letter and never reconvened to propose a new IEP and placement.

(T. 679).

Ms. testified that he student made progress during the 2010-2011 school year.

(T. 680). The student is now able to sit for an hour and thirty minutes watching a movie with popcorn and soda, when he used to only be able to sit through the previews. (T. 680). The student is now able to go out with his family to restaurants and sit with a book or crayons and have a meal. (T. 681). Ms. has seen his math improve, and the student will now work on subtraction worksheets as a leisure activity. (T. 682).

provides the student’s parents with individualized parent training and counseling. (T. 683-84). Ms. is in constant communication with the student’s school and therapists. (T. 683). Ms. is able to call with concerns and speak with staff members, be it a therapist or a school staff, to address her concerns and issues. (T. 684). She also attends parent/teacher conferences three times a year to discuss the student’s goals. T. 684. Ms. testified she needs this level of individualized parent training to deal with a boy. (T. 684-85).

During the 2010-2011 school year, the parent testified that the student began to experience a , and the staff provided ongoing individualized support and training to the student’s parents on how to handle him. (T. 686).

is a not-for profit school. (T. 607). The tuition at for 2010-2011 was $ which the parents have paid. (T. 687). The home is provided at a rate of $ per hour. (T. 714).

The is for students starting at to help begin , using . (T. 607-608). Dr. is the director of the . (T. 607). Dr. interacts with the student on a . (T. 609). He testified that the student has sight word recognition on approximately a level, and he is working on using a computer at school. (T. 610).

The student exhibits , which he is unable to control. (T. 610-611). utilizes a combination of redirection and functional communication to address the student’s behaviors. (T. 611). For the 2010-2011 school year, the student had a written behavior plan at , and all staff members were trained in its implementation. (T. 612, Parent’s Ex. S). Dr. is responsible for ensuring that the . (T. 612). He believes that the student needs a . (T. 613).

The has at least on staff. (T. 614). Dr. testified there is a benefit to having to the student during the day. Id. During the 2010-2011 school year at , the student had community-based instruction, going to local stores to work on skills such as independent and safe walking. (T. 615). The community-based instruction component of the student’s and program was critical to prepare the student for a time when he is no longer in a school setting. Id. The student’s community-based instruction was delivered in a . (T. 623). During that instruction time, math, reading, following directions and safety are integrated. Dr. stated it’s actually a more complex intervention skill set than are academics. (T. 625).

The student received instruction throughout his entire day at during the 20102011 school year. (T. 616). Dr. stated that the student needed that level of support in order to make meaningful progress. (T. 617). Without the instruction, the student would not have been able to effectively acquire the skills. (T. 617).

There are weekly team meetings as well as individual analysis sessions. (T. 478, 619). At the meetings the staff would discuss the problems they are seeing for the students, or skills that the therapists may want to work on to generalize with other disciplines. (T. 479). There are weekly meetings in the classroom with all the providers for the class. T. 459. At these meetings staff discuss concerns, progress and recommended changes for the students. (T. 459). There are also monthly clinical meetings with the lead teachers to target specific students. (T. 619).

also provides ongoing professional development for the instructors and therapists, including lectures and training on techniques. (T. 459).

The student was and is making progress at (T. 620, 632). He has acquired more words and has acquired more language. His receptive language has improved. During 2010-2011, he also became more independent in most basic including changing at the gym, . (T. 620-621).

During the 2010-2011 school year there were general education high school students who accompanied the students on the community-based activities to give the student opportunities to interact with typically developing peers. (T. 626). In determining whether a student is ready to mainstream into groups, the staff reviews and analyzes the data on the rate of acquisition of skills. (T. 628). The only way to track the rate of acquisition is to take this data. (T. 633). It is also vitally important to track the frequency and duration of behaviors. (T. 631). In Dr. , is appropriate for the student based on the skill acquisition data and the behavior support data they maintained. (T. 621).

Dr. is very familiar with the program. He likes some of the aspects of it. (T. 634) He has not observed the program in NYC. (T. 635) He testified that the student would not have been appropriately placed in a program during the 2010-2011 school year because he does not think that the student would have been able to acquire skills using (T. 637). He stated that builds prompt dependence in students because it relies upon environmental cues put in place by an instructor to prompt individuals to complete a task. (T. 638). He does not think that students should be dependent upon particular prompts because it impedes generalization. Id. He also explained that “fading” of prompts is not part of the protocol. (T. 640). He did not think that a program would have been an appropriate placement for the student. (T. 637)

was the student’s teacher for the 2010-2011 school year. (T. 467). The student had a written for the 2010-2011 school year to address his , and that interfered with his ability to learn. (T. 468-469).

The student was appropriately placed in her classroom. (T. 470, 471). Functionally, the student fell in the range of the students. T. 470. For the 20102011 school year Ms. had students and there were five additional instructors in the classroom. (T. 471, 475).

To help promote generalization, the classroom staff would change the materials that the student worked with, and change location within the class. (T. 472). He would rotate between the instructors to prevent undue dependence and reliance on one person, and instructors would take the student out into the community to work on skills. (T. 472). All instructors at have at least a BA degree and one of the instructors has an MA degree. (T. 477) The student went out into the community at least once a day including trips local stores to generalize skills in the natural environment. (T. 469).

Ms. was the classroom supervisor, and would come into the classroom several times throughout each day. (T. 473). Ms. developed the student’s goals for the 20102011 school year, as she had been his teacher the prior year. (T. 474).

is able to provide the student with all of his mandates. (T. 477 staff worked with the student on handwriting, copying and writing sentences. (T. 477).

The focuses on generalizing skills and working on day-to-day living skills. (T. 484-485). To help with generalization, the student . (T. 479). If the student were to work solely with one person . (T. 480). By having a variety of teachers teaching that same skill in a variety of settings and materials, the student . (T. 504-505). The student requires , even in . T. 480.

In Ms ’s opinion, the student made meaningful progress in her classroom. (T. 480). He started to initiate conversation with people. He would go over and ask them for their names. He didn’t quite continue the conversation, but he would initiate the conversation. (T. 480-481). The student . (T. 481). In addition, he started working on money skills, counting out specific amounts of money, using a calculator in terms of just simple math, as well as money, so he was adding up dollar amounts. (T. 481). The student . Id. The student still presented with attentional issues despite making progress.

(T. 481-482).

Every year, the staff receives training in implementing techniques. (T. 486). Ms. is currently pursuing her certification. (T. 486).

To address the student’s staff begun to worked with him on helping him . (T. 490-491). The . (T. 491).

There are . The additional adult did the paperwork to check on how the student is progressing. (T. 497). The student mastered a good number of his goals for the 20102011 school year. (T. 508).

at . (T. 434). Mr. was one of for the 2010-2011 school year the other was Ms.

(T. 437). During the 2010-2011 school year, the student received four individual 60-minute sessions, and one session in a group of two. (T. 438). The student’s worked with him in the classroom or in other school environments to promote generalization. (T. 440). The student made progress towards his during the 2010-2011 school year. (T. 442). The student’s vocabulary and his ability to express location and size concepts also improved. (T. 443). The student was making progress in answering questions and relating to peers by greeting them. (T. 443).

Mr. testified that it would not be appropriate for the student to receive 30 minute sessions because his take place throughout the session he would lose a lot of his actual work time. (T. 444). The student’s was an appropriate in-school level of for the student for the 2010-2011 school year. (T. 445). Mr. regularly communicated with the student’s parents to discuss concerns or how to carry over skills at home. (T. 450).

The student had quite a few significant behaviors that during his 2010-2011 school year. He would tap his hands on . (T. 452). If there were loud noises, the student would start to . Id. To help with the behaviors, the would implement the student’s behavior plan and would provide the student with breaks, letting him use materials to regulate. (T. 453, 457).

When the student received the , there was always another teacher who alternated between the two students. (T. 455). The student required teaching support throughout the 2010-2011 school year. (T. 616).

Dr. has been the Director of since 2002. (T. 523). He all of the at . (T. 523). During the 2010-2011 school year, the student was receiving 5x45 sessions of a week at . (T. 525).

The student’s sessions took place in the school in a sensory gym, or in the community. (T. 525). The sensory gym at has suspended equipment, climbing walls, and zip-lines. (T. 525). There is also a relaxation room for the students where they work on relaxation and calming techniques with the students. (T. 525). The equipment in the sensory gym has helped the student to relax and motivates him to participate. (T. 531). Students were taken to local parks or stores by the s who work on shopping and prevocational skills, including money concepts. (T. 526).

Dr. and the s communicate with each other daily. (T. 527). Each of the s that worked with the student had approximately eight years experience. (T. 528).

generates progress reports twice a year, in January and June, using a compilation of observations and standardized testing to show students’ performance levels. (T. 533). At the beginning of the year, these are used to help develop each student’s IEP. (T. 534).

By the end of the 2010-2011 school year, the student had shown mastery in several areas on his IEP. (T. 534- 536). , a licensed , worked with the student during the 2010-2011 school year. (T. 537). Ms. led three of the student’s weekly sessions, and Ms. provided the other two. (T. 538). Using two therapists helped to prevent undue dependence on the same therapist. Id. In January 2011, Ms. prepared a progress report. (Parent’s Ex. N). In that report she recommended that the student receive five times a week for 45 minutes 1:1 ( Ex. N, p. 6) In May 2011, Ms went on maternity leave and she was not replaced. (T. 537).

Dr. testified that the non-mandated hours of given on Saturdays are a ”benefit” to the student. (T. 543). But, he would not consider increasing the amount of given during the week. (T. 542-43). The school therapist and the student’s home therapists are working on similar goals. (T. 546). However, they do not communicate very often. (T. 546).

is one of the student’s therapists at school and at home. (T. 642). For the 2010-2011 school year, Ms. worked with the student during the day at school in 1:1 sessions, and provided four hours per week of at home. (T. 643). The student also received four hours of after school from Ms. during the 2010-2011 school year. (T. 643-644).

In her opinion, the student needed the home program to address his deficits and to generalize his skills. (T. 645). Both Ms. and Ms. collected data during their sessions to track progress. (T. 646).

Ms. and Ms. regularly communicated with each other via email, and had a communication notebook to address thoughts and generate feedback. (T. 646-647). There was some carryover from the services at school, where Ms. and Ms. would discuss difficulties that arose at school and work to incorporate it into the student’s home program. T. 647-648. The student’s mother was to be very helpful and cooperative. (T. 647).

Ms. provided two hours of after-school to the student, and two hours on the weekend. (T. 654). She started working with the student when she heard that the mother was looking for someone to work with the student at home. (T. 653) Ms. testified that the student needs the services to generalize and she needs the weekends to work on community goals that cannot be addressed after school during the week and to prevent regression. (T. 659). She stated that the student would make more definitive progress if the home services were continued. (T. 650) She does not know what, if any, degree of the progress that the student made was attributable to the home services. (T. 657) She thinks that is appropriate for the student because it provides the sessions and the necessary therapy. (T. 657) She provided the to the student at and tracked the data. She stated that he made progress. (T. 655).

She is paid directly by Ms. for the student’s at home therapy. (T. 653). Both Ms. and Ms. charge $ per session, a rate which falls well within the range for home providers. (T. 658). The student’s placement is an appropriate setting for the student, as he is receiving the instruction and related services therapy that he needs to gain meaningful educational benefit. (T. 657).

CONCLUSIONS OF LAW

Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes special education and related services specially designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written IEP. 20 U.S.C. §1401(8).

The DOE may be required to pay for private special education services if the services or program offered by the DOE are inadequate or inappropriate. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dept. of Education, 471 U.S. 3259, 369-70 (1985). And, the DOE has the burden to show that its recommendations were reasonably calculated to provide an educational benefit. In this case, the evidence shows that the DOE could not have provided an appropriate public school placement for the student on the first day of the school year or at any time thereafter until almost the end the school year. The alleged violations will be considered cumulatively herein. See P.K. v. N. Y. City Dep 't of Educ., No. 09-1472, 2011 U.S. Dist. LEXIS 90534 (E.D.N.Y. Aug. 11,2011), (order adopting "Report and Recommendation," No. 09-1472, 2011 U.S. Dist. Lexis 90462 (E.D.N.Y. Mar. 17,2011)), appeal docketed, No. 11- 3525 (2d Cir. August 30, 2011). In that case, as here, the cumulative effect of several violations deprived the student of a FAPE.

The DOE contends that it need only establish that it was prepared to provide a FAPE on the first day of the 2010-2011 twelve-month school year. (T. 362). Taken to its logical extreme, this argument is ridiculous. And, as the parent’s counsel convincingly points out, the DOE makes this argument, knowing full well that material changes were to occur in the proposed classroom in September 2010. For example, Ms. stated that she was going to have completely different students in the class in September (T. 409, 571). She did not provide any information about them. Where, as here, the DOE’s own course of conduct includes material changes to students’ programs and placements after the summer in September, the DOE must establish that the classroom in September would have provided the student with a “reasonably calculated” FAPE. The DOE must establish that it actually offered the student a FAPE for the entire year, not just on the first day of school or during the summer. Otherwise, the DOE could have an experienced teacher in place for a week and thereafter, replace that teacher -in the extreme case-by an uncertified, inexperienced teacher.

Fortunately for the student, the witnesses presented by the DOE were as the parent’s counsel points out very candid. Mr. was very clear in his statements that the recommended placement could not provide mandated and during the first week of school. With a student such as this, he might not have gotten through even the first week without great difficulty. Whereas here, as Ms also testified, the transition plan was to be developed on the first day of school together with the parent, a representative and Ms. , it is unreasonable to assume, without more evidence, that without advance notice, all of those individuals could have be assembled on the first day of school for that purpose.

Mr. further testified that there was no available during the summer months and indeed, the parent would have had to procure an on her own to be paid for with an RSA. But, he also testified that RSA’s could not be obtained swiftly. It could have taken until the beginning of August for the parent to have received an RSA. Mr. confirmed that as for the mandate, it too could not have been met at his school. There were simply not enough therapists there to deliver therapy four times a week for 60 minutes as mandated on the IEP. Anything less would not be appropriate because as Mr. stated, a 30-minute session would not belong enough to teach the lesson and deal with all of the student’s interfering behaviors thus, depriving the student of a meaningful session.

With regard to offering a program that would have provided FAPE, the DOE also failed in this regard. Ms. testified that was appropriate. She stated that was too restrictive. However, she observed the student only once or twice for a very limited period of time and conceded that the DOE did not have a less restrictive setting to offer. One has to wonder whether Ms. ’s opinion was in any way driven by this factor. In addition, Ms. testified that the student’s time with her would have been limited to only 30-45 minutes a day.

In contrast, Dr. saw the student every day. He opined that the student required for most of the day or he would not acquire any skills and would get lost in the classroom. Ms. the child’s teacher also testified that the student was appropriately placed in her classroom where he receives instruction from a variety of teachers during the entire school day.

With regard to the issue of parent training, it is clear that it must be offered to a parent of an child. It is nowhere to be found on the student’s IEP. The testimony that it would have been offered is not persuasive. Mr. testified that is was available only through an agency if requested by the parent. However, the burden should not be placed upon the parent to pursue parent training. It should be provided to them as a matter of course. Moreover, as parent’s counsel pointed out, this after-the-fact testimony has not been credited by federal district courts. See R.E., 785 F. Supp. 2d 28; R.K. v. N.Y. City Dep’t of Educ., No. 09-4478, 2011 U.S. Dist. LEXIS 32248 (E.D.N.Y. Jan. 21, 2011) (Magistrate’s Report), adopted, 2011 U.S. Dist. LEXIS 32235 (E.D.N.Y. Mar. 28, 2011), appeal docketed, No. 11-1474 (2d Cir. April 15, 2011).

Just as in R.E., 785 F. Supp. 2d 28 and R.K., 2011 U.S. Dist. LEXIS 32248 the CSE deprived the student of a FAPE by failing to expressly “provide” for parent as a related service in his IEP. Ms. stated that she never heard of putting individualized parent training on the IEP. T. 245-246. However, New York State and Federal regulations require that parent counseling and training be included in the IEP as a related service.2

The DOE also failed to create an fba for the student. Ms. testified that she created a ”worksheet” at the CSE meeting (not an fba) upon which was based but the mother has no recollection of that. Thus, it is unclear whether the parent had any meaningful input into the elusive fba or the . Moreover, the did not contain the frequency or duration of the student’s behaviors and Ms. would not have had any information about them without looking at the student’s file as Ms. conceded. The sufficiency of an IEP is determined from the content within the four corners of the IEP itself. See D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 565 (3d Cir. 2010).3

State and federal regulations clearly require an fba for a student such as this one whose behavior impedes his or her learning or that of others. 4 The Commissioner’s Regulations require that: “[t]he shall, as appropriate, be based on multiple sources of data … [t]he shall not be based solely on the student’s history of presenting problem behaviors.” N.Y. COMP. CODES R. & REGS., tit. 8, § 200.22 (a)(2).5 In this case, it is unclear what the alleged was based upon. It was not written.

The IDEA requires that a placement meet state standards. 20 USC. § 1402(9)(B). State regulations require that placement in a special class be based on similarity of needs of individuals in four key areas: academic or educational achievement and learning characteristics, social development, physical development, and management needs. N.Y.

COMP. CODES R. & REGS., tit. 8, § 200.6(a)(3); N.Y. COMP. CODES R. & REGS., tit. 8, § 2 2 The DOE was obligated under New York State regulations, N.Y. COMP. CODES R. & REGS., tit. 8, § 200.13 and the federal regulations, 34 C.F.R. § 300.34(c)(8) to provide parents with individualized parent counseling and training as a related service on the student’s IEP. 3 See also R.K., 2011 U.S. Dist. LEXIS 32248. 4 See N.Y. COMP. CODES R. & REGS., tit. 8, § 200.4(b)(1)(v); N.Y. COMP. CODES R. & REGS., tit. 8, § 200.4(d)(3); 34 C.F.R. § 300.346(a)(2). See also R.E., 785 F. Supp. 2d 28; R.K. v. N.Y.C. Dep’t of Educ., No. 09-4478, 2011 U.S. Dist. LEXIS 32248 at *58 (E.D.N.Y. Jan. 21, 2011)(Magistrate’s Report), adopted, 2011 U.S. Dist. LEXIS 32235 (E.D.N.Y. Mar. 28, 2011), appeal docketed, No. 11-1474 (2d Cir. April 15, 2011). 5 The DOE’s own Standard Operating Procedures Manual (“SOPM”) also outlines the rigorous procedure of an fba which the DOE did not follow here. See Ex. P-W at p. 51. The DOE is on notice of this from multiple sources. See also R.E v. N.Y. City Dep’t of Educ., 785 F. Supp. 2d 28; R.K. v. N.Y. City Dep’t of Educ., No. 09-4478, 2011 U.S. Dist. LEXIS 32248 (E.D.N.Y. Jan. 21, 2011) (Magistrate’s Report), adopted, 2011 U.S. Dist. LEXIS 32235 (E.D.N.Y. Mar. 28, 2011), appeal docketed, No. 11-1474 (2d Cir. April 15, 2011). 200.6(h)(2) and (3). The DOE’s own witness admitted the DOE’s own program and placement fails to meet these statutory requirements. The functional levels of the students in the proposed class varied from in various domains in July. It is hard to imagine how a teacher could address the extremely diverse needs of each of the students in that classroom all day long with the assistance of only one para. Moreover, there is no evidence what these levels would have been in September.

Having determined that the DOE failed to provide a FAPE to the student, the burden shifts to the parents to prove that the unilateral placement was appropriate. However, the second Circuit in Frank G. held that the unilateral placement need not be perfect, meet all of the child’s special education needs, or even be in the child’s least restrictive environment. Furthermore, the unilateral placement need not offer the child an IEP or employ certified or licensed special education teachers.

Applying these principles, the parent met her burden to show that is an appropriate placement and program for the student. provided education instructions specifically designed to meet student’s needs. The testimony and evidence demonstrate that the student’s program and placement at provides an education that is attuned to his particular strengths, deficits and abilities with respect to both his academic and therapeutic needs. “Objective” evidence of progress is preferable to “non-objective” evidence but not required. It is difficult to provide objective evidence for this student, but there were some tests given by the which demonstrated improvements. (Parent’s Ex.

N) Mr. , the speech therapist stated that the student improved in his area as well.(Parent’s Ex. O) Ms. also reported many areas of improvement. (Parent’s Ex. M).

The final issue to be addressed is whether the parent is entitled to recover the costs for the extended day services, which the parent unilaterally obtained. The DOE correctly contends that the services were unnecessary, and thus, their absence on the IEP is not a denial of FAPE. The evidence shows that the student in fact made meaningful progress at and all of the staff confirmed that ’s program was complete. In addition, school testified that based on her familiarity with the student, she did not believe that the student needed home services or extended day services in order for him to make any meaningful educational progress and that the function of the IEP is to create a program for school based services. (T. 221, DOE Ex. 4.21). Additionally, according to Ms. , the parent never requested or mentioned extended day services during the April 12, 2010 IEP meeting. Id.

Moreover, Mr. testified that provided all of the mandated sessions on site to the student. The student was receiving five times a week for 45 minutes each session up until May 2011 when one of his therapists left. She was not replaced and there was no evidence that her . In the progress report admitted into evidence by the parent, it was recommended that he continue to receive five times a week for 45 minutes each session. (Parent’s Ex. N) There was also no convincing evidence that the services that the student was receiving at home was needed. The provider at was working with him consistently everyday at and saw him make improvements. Though Ms. said that additional hours would be a “benefit”, that does not make it a necessity. The DOE does not have the obligation to pay for services in order to maximize the child’s educational opportunity. As the DOE correctly points out, under IDEA, the DOE is not required to "maximize" the potential of students with disabilities. See, Rowley, 458 U.S. at 200 (finding that Congress passed IDEA to ensure that disabled students had a “basic floor of opportunity”); Walczak, 142 F.3d at 132. Since the IDEA does not require the DOE to "maximize" the potential of students with disabilities, the student is not entitled to extended day hours if he is receiving the necessary services during the school day that permit him to make progress. See, Rowley, 458 U.S. at 200; Application of a Child with a Disability, Appeal No. 08-019; Application of a Child with a Disability, Appeal No. 07-

040. In light of the foregoing, and having found that provides a program that is reasonably calculated to provided educational opportunity, it is clear that the costs of anything extra must be borne by the parent.

Finally, with regard to the equities, they tip in the parent’s favor. The parent cooperated with the DOE. The parent provided all the necessary evaluations, permitted observations and materials to the CSE. She attended the CSE meeting. Although she initially asked for an IESP and after consulting with her lawyer requesting an IEPsomething which he may have told her to do -- it does not alter the fact that she testified that if the DOE had offered the student an appropriate placement with 1:1 instruction for more than 30-45 minutes a day, she would have been willing to accept it. But, in this case, the DOE’s placement offer was not a viable alternative to and she was understandably unwilling to make such a radical change in her son’s instructional environment. Parents are not obligated to “try out” a school district’s proposed placement to have standing to seek reimbursement relief. Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484 (2009). By the same logic, parents need not try out the school district’s proposed placement before they decide to reject it in order for them to have the equities tip in their favor. Accordingly, the parent is entitled to be reimbursed the sum of $ the total tuition cost for .

Ordered that:

The DOE shall reimburse the parent in the amount of $ to pay for the tuition at for the 2010-2011 school year. Dated: April 4, 2012

Impartial Hearing Officer

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.

DOCUMENTATIO ENTERED INTO THE RECORD

DEPARTMENT OF EDUCATION

Exhibit Date Title Page(s) 1 5/02/2011 Impartial Hearing Request 9p. 2 5/05/2011 Due Process Response 4pp. 3 4/12/2010 IEP 26pp. 4 4/12/2010 IEP Meeting Minutes 2pp. 5 4/12/2010 Notice of Recommended Deferred Placement 1p. 6 4/12/2010 12 Month School Year Consent Form 1p. 7 6/22/2010 Final Notice of Recommendation 1p. 8 6/09/2009 Test ( 1p.

Second Edition

9 7/07/2008 Scales, 1p.

Fifth Edition Score Summary Report

10 6/2009 Assessment of Skills 2pp.

revised Skills tracking System

11 1/20/2010 The –

Educational progress Report 4pp.

12 1/20/2010 The –

Department Progress Report 3pp.

13 1/29/2009 The –

progress Report 5pp

14 5/14/2009 IEP 26pp.

15 2010-2011 The – 1p.

Upper School Staff List

16 2010-2011 The – 1p.

Class Classroom Schedule

17 2010-2011 The – 1p.

Daily Attendance Record for .

18 6/19/2010 2010-2011 The – 3pp.

Enrollment Contract

PARENT’S EXHIBIT LIST

A Withdrawn - Duplicate 0 0 #1

B -18-08 13

By: , Esq.

C Withdrawn – Duplicate 0 0 #3

D Individualized Education Program 2010-2011 08

The

E Letter from Parent to District 06-27-10 03

F Withdrawn-Duplicate 0 0 #7

G Letter from Parent to District 06-14-10 02

H Withdrawn-Duplicate 0 0 #5

I Withdrawn-Duplicate 0 0 #6

J Notice of IEP Meeting (NYCDOE) 03-25-10 02

K Observation 03-03-10 03

NYCDOE

By: , M.S.Ed, M.Phil. L Annual Review Notice (NYCDOE) 11-17-10 03 M Educational Progress Report 01-21-11 06

The

By: , Instructor

, M.S., Ed. N Progress Note 01-18-11 06

The

By: BS, /L

O Department Progress Report 12-2010 04

The

By: , M.S., CCC- TSSLD

, M.S., CCC- TSSLD

P IEP Goals 09-2010 10

The

By: BS, /L

BS, /L

Q Department IEP Goals 07-2010 08

The

By: , M.S., CCC- TSSLD

R IEP Goals 06-2010 02

The

By: BS, /L

, MS, S Positive Behavioral Support Plan 10-01-2010 01

The T Organization Directory D. 10-2010 03

NYCDOE

U Special Education Service Delivery Report 12-31-10 03

04-30-10

05-20-09 V Jose P. Consent Order 08-03-88 69 W Withdrawn 0 0 X Paraprofessional Qualification Requirements Undated 02 Y Methodologies Undated 03

NYC DOE

Z . Methodologies Undated 03

NYC DOE

AA District Placement Office Referral Form (Blank) Undated 01 BB E-1 Request Form (Blank) Undated 01 CC Affidavit 2010-2011 01

The DD Break down, Invoices & Proof of Payment 2010-2011 73 EE Withdrawn 00 0 FF Graphs/Data 2010-2011 25

The GG Amended Demand for Due Process with Fax 09-09-11 11

Cover and fax confirmation Sheets Attached HH Demand for Due Process with Fax Cover and fax 06-30-11 11 confirmation Sheets Attached II Individualized Education Program 5/19/11 25

NYC BOE

JJ Due Process Response 07-25-11 05

NYCDOE

By: KK Letter from Parent to District with fax 06-30-11 02 confirmation LL Letter from Parent to District with fax 06-16-11 02 confirmation MM Final Notice of recommendation 07-18-11 02 NN Final Notice of recommendation 06-15-11 01 OO Department 07-2011 04

Progress Report

The

By: , M.S., CCC- TSSLD

PP Progress Notes 06-16-11 05

The

By: , BS, /L

QQ IEP Meeting Minutes 05-09-11 03 RR Teacher Rating Form Report 01-11-11 11 SS Individualized Education Program (Updated) 2010-2011 07

The TT Withdrawn, Duplicate. 0 0 #16 UU Withdrawn, Duplicate. 0 0 #17 VV Data Graphs 2010-2011 26

The WW Withdrawn, Duplicate 0 0 #15 XX Withdrawn, Duplicate 0 0 #18 YY Affidavit 2011-2012 01

The ZZ Attendance Record 2011-2012 01

The AAA Class Schedule 2011-2012 01

The BBB Enrollment Contract 2011-2012 02

The CCC Updated Affidavit 2011-2012 01

The DDD Staff List 2011-2012 01

The EEE Resume of Undated 01 FFF Teaching License of 02-01-07 01 GGG Resume Undated 02 HHH Curriculum Vitae for Undated 02 III BCBA-D Certificate for 06-30-11 01 JJJ Resume Undated 01 KKK Resume Undated 01 LLL Resume Undated 01 MMM Teaching and Certifications Undated 01 NNN Resume Undated 01 OOO Teaching and Certifications Undated 02 PPP Curriculum Vitae Undated 07 QQQ Resume Undated 01 RRR BCBA Certificate for 12-31-08 01 SSS Curriculum Vitae Undated 05 TTT BCBA Certificate for 12-31-05 01 UUU Resume Undated 04 VVV Master Scoring Form Undated 03

By the WWW Withdrawn, Duplicate. 0 0 #12 XXX Progress Report 6-16-11 05

By the YYY Graphs and Charts Undated 04

By the ZZZ Data Collection Sheets Undated 19

By the

AAAA 2011-2012 IEP 2011-2012 18

BBBB Team Meeting Notes 10-4-11 01 CCCC Team Meeting Notes 10-25-11 01

Footnotes

[1] The parent was originally requesting reimbursement for two school years (2010-2011 and 2011-2012) but during the course of this proceeding the parties reached an agreement with regard to the current 2011-2012 school year.