New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 23, 2012

October 12, 2012

December 17, 2012

February 11, 2013

April 15, 2013

May 6, 2013

Actual Record Closed Date: July 1, 2013

Hearing Officer: Gary Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 23, 2012

Jennifer Radcliff Attorney — Parents

Dept. Designee — DOE

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

Richard Liese Attorney — Parents

Dept. Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 17,

2012

Richard Liese Attorney — Parents

Dept. Designee — DOE

Father Department — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 11,

2013

Richard Liese Attorney — Parents

Dept. Designee — DOE

Father — Parents

Provider — Parents

Department

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 15, 2013

Richard Liese Attorney — Parents

DOE

Father — Parents

Provider — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 6, 2013

Richard Liese Attorney — Parents

DOE

Father — Parents

Parents

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case # 139647. The hearing was conducted at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. The student’s parents submitted a request for an impartial hearing through their legal counsel on 7/2/12. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its Designee Joseph Montano, and the parent was represented by their attorney, Richard Leise Esq.

BACKGROUND

The parent of the child hereinafter referred to as (“ ”) brings this case under the Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”) and Section 504 of the Rehabilitation Act of 1973, seeking funding of home based Applied Behavioral Analysis ( ) Special Education Teacher Support Services ( ) for 20 hours per week to be provided at the current market rate.

More particularly, Parents stated that the Individualized Education Program, hereinafter referred to as the (IEP) was invalid; the parents’ allege that there was insufficient and inappropriate offer of services and that the New York City Department of Education’s (DOE), Committee on Special Education hereinafter referred to as (CSE) review team was invalidly constituted and failed to consider current, sufficient and appropriate evaluations and documentary material to justify its recommendations.

Additionally, the parent alleged in their complaint that the CSE did not provide the parent with a meaningful opportunity to participate in the development of ’s IEP and failed to evaluate in all in all areas of suspected disability, failed to adequately identify ’s present levels of performance or deficits and failed to adequately describe the skills needed to acquire in order to address his deficits. Lastly, the parent maintained that the CSE failed to: consider or recommend an appropriate program, to continue ’s the last agreed upon program of services, and to recommend a special education program and services tailored to the child’s unique needs.

THE PARENT’S POSITION

Parent’s maintain that the DOE failed to offer a free and appropriate public education (FAPE) for the 2012-2013 school year, in that it failed to provide or adequately demonstrate any legally appropriate or justifiable basis for discontinuing the home-based program of 20 hours per week of (the “Home Program”) that had been receiving from the DOE through both its Committee on and its Committee on each year beginning with the 2005-2006 school year.

Additionally, Parents argued that the Burlington/Carter test does not, and should not, apply to this case, that the DOE has the burden of proving that its decision to discontinue the was appropriate, and that the sole issue to be determined by the Hearing Officer is whether the DOE’s decision to discontinue the Home Program was sufficiently justified by legally appropriate and relevant supporting documentation, assessments, evaluations, or reports. However, if the Burlington/Carter test is deemed to be applicable to this case, the Parents maintain that they have demonstrated that the was and is an appropriate and necessary component their son’s educational program for the 2012-2013 school year, and that a weighing of the equities, support an order directing the DOE to continue to provide and fund the during the 2012-2013 school year.

THE DEPARTMENT’S POSITION

The DOE maintained that it met its burden in establishing that it provided a FAPE to for the 12-13 school year. Additionally, that the parent has not met their burden in establishing that the chosen program was appropriate, nor have they demonstrated that the equities are in their favor.

THE DEPARTMENT’S CASE

Ms. a CSE who testified that she holds a Masters Degree as a School and has been employed by the DOE since 2004 and worked for the CSE part time in 2004 and 2005 and full time since 2006. (See Tr. at 32) Ms. stated that while she worked part time at CSE she also worked as a . (Tr. at 33). Ms. testified that she has New York State certification as a school , a and a certification in . (Tr. at 32). She stated that her job responsibilities at the CSE include being responsible for , reports, observations and conducting IEP meetings. (See Tr. at 33). Ms. observed at his school in March of 2012 and found 10 students in the class room. The subject was English Language Arts and was seated in the front and participating. (Tr. at 34 and 35). The witness noted that has a , not assigned specifically to him, however at times redirect him. (Tr. at 36) .Ms. testified that she inquired of the teacher about how was performing, what his progress was based upon………during the conversation she was informed that sometimes he[ ] is and not (sic) able to fully participate because of …..or maybe is . I also observed slightly that he was at times, and that a was able to redirect him. (Tr. at 36). When questioned further about her conversation with the teacher, Ms. estified that she was told that seems to be a little sleepy and maybe it is (Tr. 37).

Ms. testified that she had contact with Provider Ms. sic), testifying: [We] had communication by emails and by phone, and of course I invited her to my meeting and gave her a report… and I was intentionally asking her questions about what kind of instruction she was providing; her response was that was homework support and generalization of what was required in the class, or in the future was important to that he can be prepared for school. (Tr. at 38)

Ms. dispelled the parent’s attorney’s doubts about the knowledge that she had regarding . In a voir dire conducted by the parent’s attorney, Ms. attested to the fact that she had two semesters of training and attended the “Eden Institute” for further training in . (See Tr. at 43). Ms. provided information regarding and discreet trial analysis and was “as a person qualified to answer questions about and discreet trial analysis.” (See Tr. at 44). Ms. stated that she had wondered why this child [ ] needs so much instructional time, and noted that in her opinion, if you [ ] have seven hours at school, and four more hours at home, it seemed excessive - - and it is hours of instruction and that I never heard about such a situation (Tr. at 45).When asked to clarify her last statement “I never heard about it before,” (Tr. at 45) Ms. testified: I believe the regular hours for a child to be at school and receive instruction is and I also believe that some children do receive extra support, during the week, and I never heard about hours a day. So I was a little bit surprised and that’s why I really wanted to observe [ ] myself. (Tr. at 46)

Ms. testified that she thoroughly reviewed the data that the school provided as well as the academic performance that was reflected on the and testified that the above is a test of academic performance, like standardized assessment,, that which provide if you need

Ms. stated that she had recalled this review meeting “very well.” (Tr. at 48); when asked to state what she recalled from this meeting, she responded as follows: it was me and teacher and father…..and we were (sic) in a supervisor’s room. I never do meetings over there, that’s why I had al recollection of (sic) this situation; we discussed the reports that were provided and progress regarding , I mean ; (sic) report, as well, and previous IEP. All professionals who wished to participate did so. The father had a (sic) very big role in this meeting; he was very knowledgeable about his child’s progress his needs, so requested to change annual goals for math, because there was not enough progress - or maybe it was more that the goals were not created to his satisfaction; we did change math goals. Additionally, I we reviewed some other things as the Parent stated that [ ] dif not need something…. and also said that he [ ] needs instructions, which is / (Tr. at 50)

Ms. testified as to the team’s final recommendation for and stated that “we feel - - it was a little bit of a discussion about the appropriateness of the school, if the child to perform at school……and I was not sure if the school was appropriate for , but finally believed that it was appropriate, but that still required a little help. She also stated that the father believed the school was appropriate, and he [ ] - - needs a lot of help, to perform. The witness stated that, .so, we got somewhere in between, wherein would stay in the New York State approved private school, private, but New York State , wherein they have their our (sic) curriculum and that all that ’s needs should be met at the school, programmatically. Additionally, if attended the private school, that all his needs should be met during the school instructional hours if he receives is terminated, and we add five hours of As the school stated that they do not provide , we, at the District, can work it out. (Tr. at 52 and53).

Ms. next testified as to ’s functioning in the classroom and stated that ’s teacher was very , in the classroom and stated that that he is not Ms. also testified to the results of her observation and that [ ] is participating in I think that is a lot of support and recommend same , so he have a lot of support and I believe that it is sufficient at this time. He does not need a maybe , which we considered, but not more (Tr. at 54)

Ms. had visited ( a number of times.” (TR at 54) and testified as to what ) was doing for the child and that they are addressing ’s needs and that she believes it is a very structured program and that they have a lot of support for children with as well. (Tr. at 55).

Ms. also testified that she records teacher comments and that according to ’s teacher, sometimes he needs on task. The child is in the (sic) and functioning really, really well. . (Tr. at 59). Upon questioning by the parent’s attorney about her opinion that only requires a week Ms testified: he [ ] does receive extensive help at school. “As I said, it is 12 (twelve) students, which at the time maybe (sic) ten (10) maximum, because some kids outside of the classroom, one teacher, special education teacher who trained very well, to provide support for children, a a special who belongs to the classroom to provide help, and that’s - - in a lot of instances, there is an extra adult in the room, like school or whatever, who also have a role in the process. (Tr. at 77 and 78)

Regarding of after school Ms. again reiterated that if you count seven (7) hours of instruction in school, plus hours out of child’s life. It’s a lot of instruction. And he is very - - he is, in some areas, he was very close to - level, but - - I mean, you know each child is individual who needs time for himself, as well. (Tr. at 78 and 79). Ms. further testified that she had to support her decision to reduce hours from It’s a school reports and Ms. herself reported I understand (sic) that she is a provider and I did give him as additional support, which can be provided by DOE on top of - - on top of school, which is private school, he is receiving already. (Tr. at 79 and 80).

Ms. reiterated that she had in fact increased from “ (See Tr. at 80) and that she had not seen any that recommended that receive (Tr. at 80). When questioned as to whether ’s progress in the school was due to the afterschool he was receiving, Ms. testified that is progressing and they - - you know couldn’t really rely on the information like if for example, he did not receive this and he starts declining that will be evidence based data that is not working. But we don’t know why he is progressing, because he is in such a structured environment at or r because Ms. doing homework with him. I’m not sure. You know it’s -I’m not sure what - - how you can decide this unless you have a data proving that he is declining without it. (Tr. at 82)

Ms. upon cross-examination stated that with regard to the services given to at the IEP meeting, that she believed that the child should be - -should receive all help he needs in the school, and that is appropriate. You know a FAPE, actually referring to this, that doesn’t say, you know anything else but “appropriate”…….and that is what I believe, appropriate - - a child receives all services at school, and after school kids have homework and how much homework he can do, even though we were considering the fact that Ms. (sic) helped him with the homework and the generalization with whatever he learned at school, it should be enough for one hour. I have experience with a lot of children, a lot and have like my caseload is about students a year. So one (1) hour of every day help tremendously. (Tr. at 83)

Lastly, Ms. testified that she and Ms. had spoken about the services that she provides to . Ms. testified that Ms. said and that she works with , is involved “doing homework with him, she prepares him for the school the next day and reviews curriculum from the school which provided by school to her.” (Tr. at 84) .In re-direct, Ms. again reiterated that she had relied on all reports and she stated specifically: “all reports was (sic) by the , my observation, and (sic) report, which is like one paragraph.” (Tr. at 92).

THE PARENT’S CASE

is an child with significant communication delays and impaired social skills. (Tr. 123-128; Ex. B-4, J-1, 5-2) with , significant difficulties, and . (Tr. 125-130, 138, 139; Ex. H-2, P, 5-2, 5-3, 6-4). needs statements to be restated in various ways in order to understand novel concepts; requires consistent redirection, repetition and reinforcement of concepts; and requires continual redirection and prompting to keep him focused. (Tr. 124, 125, 131, 133, 137, 138, 142, 153, 183, 184, 194; Ex. Q).

Parent’s counsel maintained that the testimony established that for to be “present” and participate in the classroom and at home, he requires a highly motivating and structured environment where are at a minimum and attention is readily available. (Ex. H-1); without support it was stated that his skills would decline. (Tr. 136).

has been receiving home-based, after school, services from the DOE as part of his overall program and services each year since the 2005-2006 school year. (Tr. 193). In 2005, was with , , after which he was referred to the CPSE, which recommended that he receive services at home, along with related services of . (Tr. 189, 190; Ex. B-4). When aged out of the CPSE and was referred to the CSE for and services for the 2006-2007 school year, services were continued by the CSE and a was assigned to him with recommendations services at home. (Tr. 190, 191). The parents disagreed with the recommendation for 10 hours of home-based and filed an impartial hearing request seeking a review of the CSE’s recommendation; ’s home-based were increased to 20 hours per week for the 2006-2007 school year. (Tr. 191).

For the 2007-2008 school year, the CSE recommended that be placed at the a New York State approved school, that his related services of and be continued, and that he receive hours per week of home-based as part of his educational program. (Tr. 191). During each of the following 2008-2019, 2009-2010, and 2010-2011 school years, the CSE recommended placement at and to provide with his and his related services. (Tr. 191, 192).

For the 2011-2012 school year, the CSE again recommended that be placed at , however failed to agree and recommend that his be continued. The Parents filed an impartial hearing request seeking a review of the CSE’s decision. A Hearing Officer’s Findings of Fact and Decision dated May 31, 2012 determined that the was found to be an appropriate component of his educational program, and the DOE was ordered to continue to fund it for the 2011-2012 school year. (Tr. 192,193; Ex.B).

On April 3, 2012, the CSE convened a review meeting to develop an IEP for the 2012-2013 school year. (Tr. 196, Ex. 1). The following persons attended either in person or by telephone: who served as the , a special education teacher from the CSE; ’s father, hereinafter referred to as , a teacher at , ; and (Tr. 196, 197; Ex. 1-12).

, the teacher who was providing the hours per week of was invited to participate; however, she allegedly advised Ms. before the meeting that she had a mandatory training program scheduled for the same time that the review meeting had been scheduled, and that she couldn’t leave the training program, however, could be available for approximately 15 minutes by telephone. (Tr. 162, 163, 197). Ms. advised Mr. that Dr. would bring to the meeting, copies of updated progress reports and the daily logs from her sessions with . (Tr. 162, 163, 197, 198). Upon his arrival at the IEP meeting, Dr handed the envelope containing the above reports, however stated that they were not opened, reviewed or discussed. (Tr. 166, 198, 199). Ms. initially did not want to discuss ’s needs for the continuation of his and only agreed to do so after Dr. insisted and the participants from agreed that the was beneficial and helped the child. (Tr. 200).

Ms. called Ms. at the meeting and advised that was benefiting from the that he was receiving, would continue to receive them; however the services were recommended to be reduced per week. (Tr. 163, 164, 200, 201). Dr. H and Ms. objected to the reduction in the arguing that it wouldn’t work, that such a reduction would be detrimental to ; he didn’t have the appropriate skills, would regress rapidly, and would not meet his educational goals or make progress. (Tr. 164, 201, 203). Dr. and Ms. questioned the decision to reduce services; however it is alleged that Ms. didn’t address the question, refer to any reports or to support her position, and stated that she was the and knew what needed, and that the child was lucky to . (Tr. 164, 165, 167, 201, 202). While Ms. was on the telephone participating in the meeting, Ms. never questioned her regarding her reports, never inquired as to why needed after school , was never asked to describe the services that she provided and never asked her to describe the child’s progress in attaining the goals which were developed for him. (Tr. 166).

Following the review meeting, and prior to his receipt of ’s IEP, Dr. sent a letter to the CSE expressing that it was his understanding from the review meeting that his son would be receiving , rather than the hours he had requested and that he would arrange to have the continued and seek funding for the program. (Tr. 203, 204; Ex. E-1); the CSE never responded to his letter. (Tr. 204). Ms. also contacted Ms. after the meeting and asked her to reconsider her decision, stating that per week was an and that there would be a Ms. never responded to her concerns either. (Tr. 168).

The CSE sent a copy of the IEP to the Parents in late August or early September, wherein it was recommended that the child continue his placement at , a recommendation that the Parents agreed with (Ex. D-2, Ex. 1-10, 2-1). Dr. left the review meeting believing that the that Ms. was willing to agree to would be home-based services; he subsequently learned that was recommended as per the IEP and to be provided during the day at , and that did not provide those services. (Tr. 204, 205). Ms. acknowledged that informed her it did not provide during school hours. (Tr. 53, 85).

’s consists of 20 hours per week instruction provided by , who has a Bachelors Degree in and Family Studies and Child Development; a Masters Degree ; an Advanced Graduate Certificate in is certified in by the State of New York; is a ); is an approved Early Prevention provider by the New York State Department of Health; is certified to do embedded coaching with families and children with through the New York City Department of Health; and is the owner and Director of Plus, a private provider of home-based services for children on the . (Tr. 119-121, 146). The addresses ’s cognitive, academic, (Tr. 123-144; Ex. H, I, J, K, M). Ms. uses methodology and errorless teaching with , and collaborates with his teachers at ; she meets with ’s parents on a daily basis to go over his program and provide them with guidance, assistance, updates and reports; and prepares and provides the parents with written progress reports on a quarterly basis that accurately reflect ’s progress in meeting the goals that have been developed for him. (Tr. 144, 146-148, 151, 152, 157, 158, 161, 175, 176, 183, 184; Ex. H, I, J, K, M).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Act (IDEA) is to (20 U.S.C. section 1400~1482) ensure-that students have available to them a FAPE-see Schaffer v. Weast, 126 S. Ct. 528,531 [2005]; Bd. Of Education v. Rowley 458 S.CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356371 92d 2006). FAPE includes special education and related services designed to meet the student's unique need provided inconformity with a comprehensive written IEP (20U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 'd'. The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a] [5] a; CFR section 300.13 [a] [2] [i], .200. 1.116 [a] [2]; 8 NYCRR 200.6 [a] [IJ; see Walczak v. Fla. Union Free School Dist. 142 F. 3d 119, 132[2d cir. 1998]

In conformity with a written IEP, a school district must provide and related services designed to meet the student’s unique needs. 20 U.S.C. §1401(9) (D); See 20 U.S.C. § 1414(d)). “‘The core of the statute’ is the collaborative process between parents and schools, primarily through the IEP process.” Application of a Child with a Appeal No. 06-121; See Schaffer, 126 S.Ct. at 532.

A school district provides a FAPE 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, 206-7 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 (2d Cir. 2003). If a procedural violation has occurred, relief is warranted only if the violation affected the student’s right to a FAPE. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

The IDEA directs that a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE. 20 U.S.C. § 1415(f) (3) (E) (i)). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415(f)(3)(E)(ii); see 8 NYCRR 200.5(j)(4)). Also, an impartial hearing officer is not precluded from ordering a local educational agency to comply with IDEA procedural requirements (20 U.S.C. § 1415(f) (3) (E) (iii)).

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child's parents if: 1. the services offered by the Department of Education were inadequate or appropriate; 2. the services selected by the parents were appropriate and 3. Equitable considerations support the parents claim (Sch. Comm. of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. School Dist. 427 F. 3d 186, 192 [2d Cir. 2005] _ "reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.

The Burlington/Carter test applies where the parent is seeking a program that was never recommended by the district in any of a student’s previous IEPs. However, where a Parent is not seeking tuition reimbursement for a unilateral placement, binding precedent in the Southern District establishes that consideration of the 2nd and 3rd Burlington/Carter factors is wholly unnecessary, M.N. and H.N. v. NYC Department of Education, 700 F. 2d 356 (S.D.N.Y. 2012). “because the Plaintiffs are merely seeking to maintain the services they are currently receiving at the DOE’s expense pursuant to the IDEIA’s pendency provisions, the Burlington/Carter test does not apply” Id at 369. Additionally, the SRO has followed this precedent. In Application of a Student with a , Appeal No. 11053, the Parent requested that the impartial hearing officer continue the student’s current program of SEIT and related services under pendency as she disagreed with the program recommended in the Student’s new IEP. The SRO agreed with the Parent that the Burlington/Carter analysis should not be applied because the parent did not unilaterally place the student in a private school or seek reimbursement for her expense related to the services she unilaterally obtained without the consent of the District. Since the Parent sought an order directing the school district to provide different services to the student then were recommended in his IEP, then there was no basis for the impartial hearing officer to require the Parent to prove that the services she sought were appropriate for the student,” Id at 4., see also Application of XXXX, appeal No. 12-062 (tution reimbursement analysis applicable to unilateral placement does not apply where parent requested continued placement at approved non public school as he student’s last agreed upon placement).

However, even if I apply the Burlington/Carter test I find that the Parent has prevailed in this matter.

PRONG I

The burden of proof rests with the DOE to prove or disprove any allegations raised by the Parent in the Request for Due Process and failed to present convincing evidence to establish that it delivered appropriate services during the 2012-2013 and has conceded Prong I

PRONG II

Under the second criteria of legal standard, the child's parent bears the burden of proof with regard to the appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Appeal No. 94-29; Application of the Bd. of Education of the Monroe-Woodbury CSE, Appeal NO. 93-94; Application of a Child with a , Appeal NO. 95-57, in order to meet the burden the parent must show that the services were" proper under the act" (IDEA) (Burlington 471 U.S. at 370) i.e. that the private school offered an educational program which met the child's special educational needs (Application of a Child with a Appeal No. 94-29). The test for the parent’s private placement is that it is appropriate not that it is "perfect" (M.S. v. Bd of Educ.231F'-3d96, 105[2crCir 2000,cert. Denied532 U.S. 942 [20012]). The private school need not employ certified special education teachers, nor have its own IEP for student (Application of a Child with a Appeal No. 02-111). While parents are not held as strictly to the standard of placement in the LRE as school districts are, restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. School Comm. 315 F. 3d 21 , 26-17 [1st Cr. 2002}.

In review of the appropriateness of the proposed placement, the inquiry is whether, at the time the parent was considering the proposed placement, the DOE could implement the IEP. B.R. v. New York City Dep’t of Educ., No. 11 Civ. 8433(JSR), 2012 WL 6691046, at *6 (S.D.N.Y. Dec. 26, 2012); See also R.E. v. New York City Dep’t of Education, 694 F.3d 167 (2d Cir. 2012).

To demonstrate that the private school placement chosen by the parent is appropriate, the parent must show that the services met the student’s educational needs. Burlington, 471 U.S. 359 (1985). Review of the nonpublic placement is more informal than review of the original IEP – indeed, the nonpublic placement need not even meet the IDEA’s definition of a FAPE. R.E., 694 F.3d at FN3. The ultimate issue to be determined is whether the placement is reasonably calculated to enable the child to receive educational benefits; there is no one dispositive factor in this determination. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). The private program need not employ certified special education teachers, as the requirements for district placements to meet State educational agency standards do not apply to parental placements (Carter, 510 U.S. at 14; See also 34 C.F.R. § 300.148(c)).

PRONG III

The final criterion for an award of tuition reimbursement is that the petitioners' claim is supported by equitable considerations (Carmel Cent. Sch. Dist. V.V.P. 373 F. Supp. 2d 402, 416 {S.D.N.Y. 2005] aff'd 2006 WL 2334140 (2d Cir 2006); Frank G. 459

F. 3d at 363-64). Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C. v. Voluntown Bd. Of Educ. 226 F. 3d 60,68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 noting that courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required}) such considerations Include the parties, compliance or non compliance with state and federal regulations pending review the reasonableness of the parties' positions, and like matters (Wolfe v. Taconic Hills Cent. School. Dist, 167 F. Supp 2d 530,5323 [N.D.N.Y. 2001] citing Town of Burlington v. Dept. of Educ. 736 F. 2ds at 773, 801-02 [1st Cir. 1984] , affd, 471 U.S. 359 [1985]; with respect to equitable considerations, tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district or upon finding of unreasonableness with respect to the action taken by the parents 20 U.S.C. § 1412; Application of the Bd. of Educ. Appeal No. 04-102; Application of the Bd. of Educ. Appeal No. 04-026). However, reimbursement may not be denied or reduced for failure to provide such notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a)(10)(C)(iv )(I)(cc) (II)(bb).

It is well-established law that a board of education may be required to pay for private educational services for a student with a if the board failed to offer in a timely manner. A free and appropriate public education “begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, [and] provision for the use of appropriate special education services to address the child’s special education needs…” Application of a Child with a , Appeal No. 99-17 (internal citations omitted). In determining whether an IEP is appropriate, an impartial hearing officer must consider “whether the School Board complied with the procedural requirements of the I.D.E.A., and…whether the I.E.P. was reasonably calculated to confer educational benefits.” M.S. ex rel. S.S. v. Board of Educ. of the City School Dist. of the City of Yonkers, 231 F. 3d 96, 102-103 (2d Cir. 2000) (quoting Board of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982)). While “not every procedural error will render an IEP ‘legally inadequate,’” procedural violations may rise to the level of deprivation of FAPE where, “taken together…they (1) impede the student’s right to a FAPE, (2) significantly impede the parents’ opportunity to participate in the decision making process, or (3) cause a deprivation of educational benefits.” R.K. ex rel. R.K. v. New York City Dep’t of Educ., No. 09 CV 3378, slip op. at 29 (E.D.N.Y. Jan. 21, 2011) (quoting A.H. v. New York City Dep’t of Educ., 652 F.Supp.2d 297, 307 (E.D.N.Y. 2009) (citing 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2)).

In performing an annual review of an IEP, a CSE must consider the results of the existing or most recent evaluations or assessments of the child, the strengths of the child, and the academic, developmental, and functional needs of the child, as well as the parents’ concerns for the enhancement of their child’s education. 34 C.F.R. § 300.305, 300.324; 8 NYCRR § 200.4(f)(1). The CSE must “use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information about the child, including information provided by the parent,” and should not rely upon any single measure or assessment. 34 C.F.R. § 300.4. Exclusive reliance on teacher assessments is not an acceptable method of determining a student’s current functional levels. See 34 C.F.R. pt. 300, Appx. A. As part of any re-evaluation, the IEP team “must

I find that the DOE did not present sufficient probative evidence or testimony to support or defend the IEP or that the program recommended for for the 2012-2013 school year. Prior to the review meeting, Ms. was aware that was receiving after school instruction from Ms. . (Tr. 36, 69). It was her opinion that she “just [didn’t] think it was appropriate”, because she believed that all of a child’s needs should be met programmatically in school. (Tr. 78, 79). Moreover, she was under the impression that was receiving “from some sort of Order”, and not from the CSE, and that “somebody’s decision is not my decision…It’s not the decision of the team.” (Tr. 80, 81). However, since “everybody was under the impression that he needs like some redirection, and some generalization, and so on”, in her opinion, one hour of a day “should be enough.” (Tr. 78, 83).

I agree with Parent’s counsel that there were no assessments, evaluations, or reports submitted to or reviewed by Ms. , that supported her arbitrary recommendation of 5 hours of instruction for the child, which she described as being something “in between” agreeing to recommend as ’s placement and agreeing to provide him with instruction. (Tr. 52). In the absence of necessary evaluative information, the CSE acted without a sufficient basis in recommending an educational placement and program for the child.

The statements by the staff who participated in the CSE review meeting testified that ’s Home Program was beneficial and helped him; the statements made by the child’s teacher during Ms. ’s observation noted that came prepared to class, was prepared for his lessons, and it was easier for her to teach him because he had been prepared by Ms. . The testimony made by Ms. and Dr. at the review meeting that required the and would regress rapidly if the services were reduced to ; and the updated progress reports that were delivered to Ms. but never reviewed or discussed during the meeting, all supported the continuation of ’s .

Ms. failed to demonstrate that she inquired of Ms. any regarding her reports, never asked Ms. why needed after school or to describe the services that she provided; she did not ask her to describe ’s progress in she had developed for him. (Tr. 166). Her response to Ms. and Dr. at the review meeting was that she was the , that she knew , despite never , and that Dr. was lucky to get the she was willing to provide. Moreover, as Ms. knew, could not even implement the recommendation she made because the school did not provide those services. Consequently, the DOE failed to sustain its burden of demonstrating the appropriateness of the program recommended for , and it failed to develop an appropriate program for him without adequately considering the work he did and the progress he made in his .

A CSE meeting is intended to provide a forum for meaningful conversation between every member of the Committee and the parents, and each member owes a duty to provide meaningful participation in all IEP matters. 20 U.S.C. § 1414; Letter to Heldman, 19 IDELR 930 (1992). The CSE also must ensure that all meeting participants, including the parent and the student’s teacher, are afforded an opportunity to meaningfully contribute to a discussion of the student’s needs such that a true conference is possible. 8 NYCRR §§ 200.3, 200.4(f)(1); 34 C.F.R. § 300.324. The CSE must ensure that there is a “full discussion with the Parents regarding the content of the IEP before the IEP [is] finalized.” R.K. ex rel. R.K., 2011 U.S. Dist. LEXIS 32248, at *48 (internal citation omitted). It is the CSE, and not the parent, that has the affirmative obligation to conduct meaningful CSE meetings. Letter to Heldman, 19 IDELR 930 (1992), citing W.G. v. Target Range School District, 960 F. 2d 1479 (9th Cir. 1992).

The DOE failed to demonstrate that the CSE adequately involved Dr. and Ms. in the discussion of the child’s needs and in the development of his IEP. According to Ms. ’s credible testimony, when she and Dr. objected and tried to address the that this reduction would have on , Ms. left the room , came back, “and stated that the child would be given the five hours and that she would not discuss it further. Although Dr. testified that services had been on his son’s IEP in prior years, and Ms. indicated at hearing that she only knew that was not on the prior year IEP, this environment and the actions of the review team were not conducive to fostering or assuring the parent’s or Ms. ’s meaningful participation in the meeting and in the development of ’s IEP. (Tr. 70, 71, 203; Ex. B4).

I agree that the IEP also fails to adequately reflect ’s needs; the IEP indicates that without a further description of his cognitive skills, in . Without additional information about the child’s , the IEP does not adequately identify his and needs in these areas. The description in the IEP of ’s provides information regarding his level , but fails to adequately identify his needs.

As noted above, the Petitioners do not believe that the Burlington/Carter test applies to this case. Nevertheless, they believe that they have demonstrated the appropriateness of ’s .

Parents need not show that a private placement provides every special service necessary to maximize a student's potential. Frank G. v. Bd. of Educ., 459 F. 3d at 364365 (2d Cir. 2006). "They need only demonstrate that the [program] provides educational instruction specially designed to meet the unique needs of a , supported by such services as are necessary to permit the child to benefit from instruction." Gagliardo v. Arlington Central School District, 489 F3d 105, at 112 (2d Cir. 2007); Frank G., 459 F. 3d at 364365 (2d Cir. 2006).

The reports clearly demonstrate that has made progress in meeting the goals created for him in the . Ms. provides the parents with coaching and methods that they can use to help their child at home, to help him generalize what he learns at school to his home environment, and to help him in the community. (Tr. 161, 162).

Ms. ’s hourly rate for her services as s is $90 per hour, which is the same hourly rate she has received from the DOE for the past three years for providing the to , and was the rate that was awarded in the Hearing Officer’s Decision. (Tr. 160, 161; Ex. B, C, F). Ms. testified that her hourly rate is commensurate with the rates being charged by other and providers in her area, and that the DOE has paid her $100 per hour for providing services . (Tr. 160, 161).

In addition, the IDEA’s requirement that a child be educated in the least restrictive environment works in tandem with the FAPE requirement that an IEP be reasonably calculated to confer an educational benefit to the student. Henrico County, 433 F. Supp. 2d at 689; see also Briggs v. Bd. of Educ. of the State of Ct., 882 F.2d 688, 692 (2d Cir.

1989) (stating that the presumption in favor of mainstreaming must be weighed against the importance of providing an appropriate education to children); Mr. X v. New York State Educ. Dept., 975 F. Supp. 546 (S.D.N.Y. 1997). Therefore, the use with its emphasis on intensive , may still be necessary to provide a FAPE, as an may not have to benefit sufficiently from a environment. Henrico County, 433 F. Supp. 2d at 689.

Counsel stated that the most proven effective method for students with an disorder, it is an effective and appropriate method for . Ms. uses errorless teaching, a method of teaching that utilizes instructions and prompts to help students such as learn as quickly as possible without making an excessive number of mistakes. (Tr. 146). According to Ms. , when is left on his own, all of are being consistently and constantly reinforced in his environment, which only increases the likelihood that he is going to engage in those behaviors. (Tr. 145).

Ms. developed ’s program in conjunction with ’s IEP goals and objectives. (Tr. 147). Using ’s IEP goals as a guide, she collaborates with ’steachers in order to keep up with what they are focusing on in the classroom so that she can prepare will need to manage the various tasks in school and work on the objectives that are set for him. (Tr. 147, 14

Clearly, is making progress in the during the 2012-2013 school year.(Tr. 150). According to Ms. , goals as reflected in his written progress reports; there have been breakthroughs with .

Ms. stated that needs an after school, home-based program of services because he “needs the support in his home environment in order for him to effectively maintain and generalize any information that he acquires in school. comes from school with very little recollection of what he’s learned. . . [W]hatever he learns at school is needs that constant , instruction and to, not only , but to make any progress.” (Tr. pp. 110, 111). She further testified that would not be able to generalize the skills he learns during the day, across , without the home-based services.

Dr. testified that his needs hours per week of home-based services to ; to maintain his knowledge and retain whatever he learns at school; to preteach him to enable him to and ; and to address the that interfere with his education. (Tr. 194, 195).

In addition to the testimony from Ms. , Ms. the child’s need for 20 hours of home-based, services during the 2012-2013 school year was supported by , ’s who strongly recommended that ’ s IEP include home services of per week; and by , the child’s former , and Dr. , ’s current each of whom recommended that receive services per week. (Tr. 207-211; Ex. N, O, P, Q, R).

In D.F. ex. rel N.F. v. Ramapo Central School District, 348 F. Supp. 2d 92 (S.D.N.Y. 2004) (remanded on other grounds, 430 F. 3d 595 (2d Cir. 2005)), the United States District Court for the Southern District of New York ordered the school district to provide a minimum services to an , in part, on the fact that “[t]he documentary and oral evidence presented to the court showed that all of the people who examined or worked with [the child] for a amount .” (Id., at 96). Similarly, all of the people who examined or worked with for a significant period of time during the 2012-2013 school year, the teacher who has provided services to him for the past seven years, his who has been working with since 2005, and his – have all recommended that he continue to of home-based services as part of his overall education program during the 2012-2013 school year. “Since an IEP is to be fashioned based on the particular needs of [the child] and not children generally, ‘it is elementary that those who have personally met and [the child] are far better positioned to discern what is appropriate for him.’” Mr. X v. New York State Educ. Dept, Id., at p. 559 (citing Malkentzos, supra, at 515). The opinions and recommendations of the professionals who treated or worked with stand in sharp contrast to the lack of any credible or documentary evidence supporting the DOE’s decision to reduce ’s instruction from hours per week. The DOE has not submitted any evidence to indicate that of services for is inappropriate.

To receive an award of tuition reimbursement, parents must show that a weighing of the equities supports such an award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank

G. v. Board of Education of Hyde Park, 459 F. 3d. 356, 363-364 (2nd Cir 2006), citing School Committee of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985). Although this is not a unilateral placement and tuition reimbursement case, to the extent that the Burlington/Carter analysis is deemed to be applicable, equitable considerations may be relevant in determining whether the Petitioners are entitled to the relief they are seeking. Where a district fails to provide a student with a and the [relief sought] is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” N.R. ex rel. T.R., 2009 WL 874061 at *6 (quoting Gagliardi v. Arlington Centr. Sch. Dist., 489 F. 3d 105, 112 (2d Cir. 2007)). A “major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the City throughout the process to ensure that their child receives a FAPE.” Id. (quoting Bettinger v. New York Bd. Of Educ., No. 06 CV 6889, 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007)).

Here, ’s parents fully cooperated with the CSE during the development of ’s IEP and did not impede the CSE’s and placement process in any way. Dr. participated in the CSE review meeting that was held on April 3, 2012, to develop the IEP for the 2012-2013 school year; he hand-delivered to the CSE Ms. ’s daily logs and progress reports that Ms. had requested; and he objected at the meeting to the CSE’S decision to discontinue ’s 20 hours of home-based , and its decision to only recommend 5 hours of for his son. (Tr. 164, 165, 198, 201-203). Following the review meeting, and prior to his receipt the IEP, Dr. sent a timely letter to the CSE stating, among other things, that it was his understanding from the review meeting that his would be receiving week of , rather than the he had requested and that his needed, and that he would therefore arrange to have the continued and would seek funding for the program. (Tr. 203, 204; Ex. E-1). The CSE never responded to his letter. (Tr. 204). See Kitchelt ex rel. Kitchelt v. Weast, 341 Supp. 2d 553, 557 n.1 (D. Md. 2004) (“[T]he key consideration is that the parents pursue in good faith the development of the IEP…”).

In this case, the DOE has not demonstrated that the parents “acted with the requisite level of unreasonableness or misconduct that [the relief sought] should be denied on equitable grounds.” N.R ex rel. T.R., 2009 WL 874061, at *7 (quoting Jennifer

D. ex rel. Travis D. v. New York City Dep’t of Educ., 55 F. Supp. 2d 420, 437 (S.D.N.Y. 2008)). The relief sought by the parents is appropriate in this case as they “did nothing to ‘obstruct the [DOE’s] placement process or its ability to provide [ ] with a FAPE.’”. R.B. and HZ, on behalf of their minor child, C.Z., v. New York City Department of Education and Joel Klein, 1:09-cv-077758-RJS at14 (S.D.N.Y. 2010) (quoting N.R. ex rel. T.R., Id.). “The Department’s ‘abdication of its responsibility to provide…FAPE is so clear from the record – and the law’s imposition of this duty on the [Department] is so well-settled – that…the equities favor the parents.’ (quoting Gabel v. Bd. of Educ. of the Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, 329 (S.D.N.Y. 2005)).

CONCLUSION

For all of the foregoing reasons, I find that the DOE failed to offer a FAPE for the 2012-2013 school year; failed to sustain its burden of proof, failed to support or demonstrate that its decision to discontinue ’s was appropriate, failed to adequately demonstrate that its decision to recommend instruction at was appropriate for and failed to demonstrate that the was inappropriate; and alternatively, that the of support services, or , provided to -- consisting of instruction, at $ , provided by Plus and its owner, , an individual with the appropriate education, training and expertise to provide to students on the , utilizing to address the child’s severe academic, language, delays -- appropriately addressed his needs for the 2012-2013 school year; and that a weighing of the equities supports an order directing the DOE to provide and fund the for the 2012-2013 school year.

I agree with Mr. that is entitled to the services being sought for the 2012-2013 School Year and that the DOE failed to establish that a FAPE was offered for the 20122013 School Year. More particularly, that the DOE failed to offer a program that offered a sufficient amount of individualized instruction to appropriately address the student’s academic and Dated: July 11, 2013

_____________________

GARY D. PETERS, ESQ.

Impartial Hearing Officer

GP;mv

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’S EVIDENCE

No. Date Description #pages A 7/2/12 Impartial Hearing Request 3 B 5/31/12 C 8/10/12 Affidavit 1 D 10/23/12 Amended Hearing Request 4 E 6/14/12 Letter from parent to CSE 2 F 8/27/12 Order on Pendency 4

G 4/8/11 IEP 11

H 8/15/11 Annual Progress Report 5 I 11/15/11 Annual Progress Report 5 J 8/15/12 Progress Report 5 K 11/15/12 Progress Report 5 L 7/12/12 Due Process Response 3 M 2/1/13 Progress Report 5 N 11/11/11 Letter from Dr 1 O 12/7/11 1 P 2/22/13 Letter from 1 Q 2/28/13 Letter from 1 R 3/13/13 1

DISTRICT’S EVIDENCE

No. Date Description #pages

1 4/3/12 IEP 12

2 4/3/12 FNR 1

3 4/3/12 CSE Minutes 3 4 3/30/12 Student Observation 2 5 1/20/12 Annual Review/Classroom report 5 6 1/16/12 Annual Review/ 11 7 7/10/12 Annual Review/ 2