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 8, 2012

August 29, 2012

September 4, 2012

December 3, 2012

February 8, 2013

April 3, 2013

May 1, 2013

Actual Record Closed Date: June 12, 2013

Hearing Officer: Judith T. Kramer, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 8, 2012

Attorney — Student

Attorney — DOE

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

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 4,

2012

ESQ., Attorney, — Student

Associates — Student

ESQ., Attorney, Department of — DOE

Education — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 3, 2012

MS., Attorney — Student

MS., Legal Intern — Student

MS., — Parents

MR., DOE Attorney — DOE

MS., CSE Teacher (Via Telephone) — DOE

MS., Assistant Principal — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 8, 2013

Attorney — Student

Paralegal at Mayerson & Associates — Student

OT Supervisor — Student

Speech and Language Pathologist — Student

NYC DOE Placement Officer — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 3, 2013

Attorney — Student

Parents

Teacher — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 1, 2013

Attorney — Student

Parents

DR., Head of School (Via telephone) — Student

DOE Attorney — DOE

INTRODUCTION

On September 4, 2013, an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”),20 U.S.C. 1415 regarding the alleged failure of the Department of Education (DOE) to provide a free and appropriate public education (FAPE) to . (“the student “) for the 2012-2013 school year. The initial day of 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 10:00 a.m. The hearing was continued on December 3, 2012, February 8, 2013, April 3, 2013; and May 1, 2013 . The requests for 30- day extensions made by both parties were granted based upon several factors. First, the impartial hearing was interrupted for many months due to hurricane Sandy. The parents were displaced and were unable to get to the hearing office. Second, the issues were complex (there were over 119 allegations in the impartial hearing request) and the parties required several hearing days. Third, the parent filed amended request thus, extending the resolution period. A list of exhibits that were admitted into evidence is attached to this decision.

BACKGROUND

On July 17, 2012 the parent filed an initial request for an impartial hearing. August 23, 2012, the parent filed an amended request for an impartial hearing alleging that the DOE failed to provide a FAPE for the 2012-2013 school year. The parent’s amended hearing request raised 120 issues including but not limited to the appropriateness of the recommended program and placement as well as the timeliness of the placement; the inadequacy of the Individualized Education Program (IEP); the failure to have a properly constituted IEP team; the failure to develop a proper Behavior Intervention Plan (BIP); inadequate goals, short term objectives and method of measurement; engaging in predetermination; inadequate amounts of related services; an inability to implement the mandated service on the IEP; failure to do timely evaluations; failure to conduct a classroom observation; failure to consider assistive technology; and that there is an unlawful age spread and vast range of functional levels of the students in the proposed classroom; The issue in this case is whether the parent’s request for tuition reimbursement and transportation costs (T. 626) for the 2012-13 school year should be granted due to the failure of the DOE to provide a FAPE.

THE PARENT’S POSITION

The parent contends that the DOE denied the child a FAPE. The parents’ amended 2012 hearing request raises 120 issues as summarized above including challenges the validity of the IEP, the recommended program and the placement. They also contend that the DOE failed to provide then with the final notice recommendation (FNR) in a timely manner. They contend that the IEP fails to accurately reflect the current level of performance of the student, omits testing results and did not provide for an adequate functional behavior assessment (FBA) or BIP. In addition, the parent contends that the IEP could not and would not have been properly implemented at the recommended school. They further contend that is an appropriate placement and that they fully cooperated with the committee on special education (CSE) so the equities tip in their favor.

THE DOE’S POSITION

The DOE contends:1) that the IEP was valid, 2) that the placement was provided in a timely manner, 3) that the child’s recommended program and placement for 20122013 school year would have provided the child with aFAPE and thus, the DOE contends that the child is not entitled to any relief. The DOE further contends is an inappropriate placement for the child and that the equities do not favor the parent.

EVIDENCE PRESENTED

The student is . (Ex.1.1) He attends ) with supplemental services. (Ex. A) At the time of the IEP meeting, he , and fine motor skills. ( Ex. 1.1 and 1.2.) He had . ( Ex. 1.1). He was able to work in a group setting . (T. 158, 160, 520). The support helped and on task by using prompts. (T. 160)

The student was functioning level in reading and in math. (T. 163-164). He can count to 10; tell time to the hour on a digital clock; identify coins. He knows day from night; same from different and the four seasons. (Ex.1.2) He was performing at the pre-K level in writing. He was working . (T.161-162, Ex. 1) He was at the K level in reading; pre-K level with regard to reading comprehension. (Ex 1) He was beginning phonics and reading programs for which he required a . (T. 161-162). He communicated vocally and syntax.” (Ex. 1.1) He away from preferred activities or when a “preferred item or activity item is not granted.” (Ex. 1.1). Socially, he was able to participate in group instruction with support. (T. 164). However, he did not with peers. (T. 164, Ex. 1.2). He . However, ,. for long periods of time in a group.( Ex. 1.2) He is independent in most aspects of daily living skills but his clothes. Id. he receives teacher instruction throughout the school day as well as during the extended day. The student also presents with

On May 23, 2012, the CSE held a meeting to develop an IEP for the student for the 2012-2013 school year. At the meeting, the CSE continued the classification as autism and recommended a 12 month District program with : student to teacher ratio.1

The CSE recommended this program because the student needed a 12 month structured program to avoid regression. (T. 197-200). program was intended to provide the student with an opportunity to develop social skills by allowing him to interact with his peers with the of his assigned paraprofessional (para) in a small structured environment where he could receive individualized attention. The para would address his behavior and assist in implementing the BIP. (T. 197, 219-220, 249, Ex. 1.3).

The CSE included academic management needs on the IEP, which are supports in the classroom designed to help the student succeed. (T. 166-164,Ex. 1.3.) For example, one such need recommends that he receive individualized or in a small group with an individual shadowing instructor. (Ex. 1.3). Another, recommends repetition of material and use of visual supports so he can master skills. (Ex.1.3 and T. 520-521).

At the IEP meeting, the CSE reviewed an Educational Progress Report from the (Ex. 2), a SL report from (Ex. 4), Goals and Objectives from the OT at School (Ex. 6), an IEP ( Ex. 5), and a DOE classroom observation. (Ex. 3,T. 154-157). The documents reviewed at the IEP meeting contained detailed information about the

The parents do not contest the classification or the fact that the student needs a 12 month school program. student’s cognitive, fine motor, gross motor, sensory processing, communication, behavioral and academic functioning.

At the IEP meeting, the student’s teacher at also provided the CSE with information about his academic functioning level. (T. 162-163). She informed the CSE about his .The information contained in the reports, provided by and the parent at the IEP meeting was memorialized in the IEP. The CSE took the information about him into consideration when recommending a special education program and thought it was sufficient to provide him with an appropriate program recommendation. (T.200)

The CSE also recommended related services of Occupational Therapy (OT) (4 times a week for 45 minutes (SL) (5 times a week for 45 minutes ), and a full-time crisis management para. ( Ex. 1.22).

With regard to recommended the student receive in a group setting as well as 1:1. The CSE recommended four sessions of and created a number of goals which would be addressed by the therapist. These goals focused on gross motor, fine motor, hand eye coordination, activity of daily living, and sensory processing skills. (Ex. 1.71.21). The student’s OT during the 2012-2013 school year was provided in a group setting so he could “generalize his skills in a social setting.” (T. 309, 351). By nature of the program class could allow him to practice the skills he learned in a social setting. His OT did not know what would happen if he did not get in a group. (T. 351).

The CSE meeting was attended by a special education teacher; the parent, the DOE representative; a ; a parent member; the student’s classroom teacher and a . (Ex. 1.29.)

The special education teacher assigned at CSE who participated in the CSE meeting has never taught in a classroom and has never taught in District before. (T. 228). She participated in about 50-60 IEP meetings for the 2012-2013 school year. (T. 152, 244) and observed the student for 30 minutes on May 9, 2012. (T. 158, 203).

The CSE had a discussion at the IEP meeting with parent and his teachers about the student’s behaviors which included . (T. 186-187). The CSE also reviewed several documents which contained information about his behaviors, such as the educational progress report and IEP. (Ex. 2 and 3). Thereafter, an FBA and a BIP were created.

(T. 187, 188, 605-608; Ex. 7). The FBA contained a list of behaviors, their frequency and settings, which the IEP aimed . (T. 191-192,Ex. 7.1). The FBA also contains information about the purpose of the behavior interventions that were previously attempted and what the expected changes were.(Ex. 7.2) The information on the FBA was created by , and information provided by teachers and parents at the IEP meeting. (T. 191-193). The BIP lists the behaviors targeted, the expected behavior change and the criteria for outcome measurement. (T. 194-195; Ex. 7.3). The information in the BIP was based on the documents provided , input from the parent and teacher at the IEP meeting. (T. 195).

The FBA has two dates, May 23, 2012 and June 16, 2012. (Ex .7). The May 23rd date represented the date that the information for the FBA was gathered at the IEP meeting. (T. 190). June 16th represents the date that the information was typed and the FBA was finalized. (T. 189-190; Ex .7). The IEP team mailed a copy of the FBA and BIP to the parents along with a copy of the IEP on or about June 22, 2013. (T. 238; DOE Ex. D-30).

The CSE had a discussion and identified behaviors which interfered with his instruction. (T. 605-608). The CSE special education teacher was told that the student exhibits . (T. 185). These behaviors were being addressed at the time of the IEP meeting. (T. 238-39, 252). None of these behaviors are specifically referenced in the FBA. (T. 240; Ex. 7 . 1-2). Those behaviors are listed throughout the IEP. (Ex. 1.1, 1.2, 1.3). Ij addition to the IEP, academic management needs, goals and objectives were created to . (T. 167-169, Ex. 1.3, 1.5, 1.6 and 1.18-1.19).

The FBA was created by a member of the CSE team (T. 230-231). All of the information used by the DOE to create the FBA . (T. 191-193, 234). The first time the individual who created the BIP saw the FBA was after the IEP meeting. (T. 235-36). From that assessment, she created the BIP. (T. 188). The BIP fails to define or provide strategies for and she could not recall whether or not certain things happened during or after the IEP meeting. (T. 233). No one ever even discussed the FBA or the BIP at the IEP meeting. (T. 573).

The DOE never told the parent at the IEP meeting that it was developing an FBA or BIP and she never received a copy of the FBA or BIP prior to its October 19, 2012 disclosure for the impartial hearing. (T. 568-69).

The CSE special education teacher relied documents and participation of the witnesses at the IEP meeting to determine the student’s present levels of performance, management needs, all of the goals and objectives, (T. 162-63, 164, 165, 167-79, 217). The team accepted those reports to be true. (T. 203-04, 206). report indicated the student requires a structured teacher-student ratio with a dense level of reinforcement, redirection and adult prompting to stay on take and to .continue to make progress. (Ex.3. 3). The staff opined that he requires throughout each day. (T. 523). “He has , … learning in a group.” (T. 523). “He requires that to learn a group.” (T. 546). If he were ready for a less restrictive environment, would have that to his parents. (T. 537-38). In his teacher’s opinion, is not an appropriate ratio for him now because he requires more individualized instruction than that ratio can provide. (T. 446).

The DOE did not consider a environment for the student. (T. 219-20). During the classroom observation, it was noted that the student’s teacher was providing him with support to remain on task even during group sessions. The DOE believed that a crisis para could provide the same support in the classrroom as a teacher. There is a difference between a para and teacher. (Ex.3.4; T. 160, 209, 210).

There is no reference to parent counseling and training on the IEP. (T. 228). However, at the hearing, it was stated that parent training was available at the school even though it was not written on the IEP. (T. 260-61).

Applied Behavior Analysis (ABA) was not recommended on the IEP.(T. 211). The recommended school uses “various methodologies” in addition to ABA. (T. 262). However, all of the teachers use the principles of ABA. They use a lot of repetition. There are multi-sensory lessons and a instruction (T. 262). The amount of 1:1 time that students work with their teachers varies from student to student. (T. 279). The DOE did not recommend extended day services for the student. (T. 223-24). The DOE similarly did not .

School placement was not discussed at the IEP meeting because, “the placement officer at the DOE makes that decision.” (T. 227). The FNR The school day at runs from 8:00 to 2:50. (T. 269). There are approximately 352 students in the program with approximately 250 at the recommended site. (T. 272). The classes are segregated. (T. 271).

It was the IEP team’s intention for the student to receive all of his related services at the recommended school. (T. 245). However, with regard to such related services, as of the end of September, 2012, only 49% of the students (i.e., 161 out of 326 students) were actually receiving their full speech and language mandates . (T. 277). At that same time, more than 65% of the students at (i.e., 203 of 308 students with speech mandates) were not receiving their occupational therapy mandates. (T. 277). And 26 of the 105 student who were receiving some level of OT were not receiving their OT mandate as indicated on their IEPs. (T. 278, Ex QQ.9). The assistant principal at was still “waiting for one more therapist to come in so [the mandates] will be covered.” (T. 260, 284. Ex. QQ).

In addition, the parents provided the DOE with consent to conduct evaluations and assessments of the student and requested updated evaluations including an , assistive , and . (Ex. QQ.5). These assessment were not performed.. (T. 212, 214-15).

The FNR was dated June 19, 2012. In a letter dated June 26, 2012, the student’s parents rejected the DOE’s recommended program; they informed the DOE that they would be placing him at the for the 2012-2013 school year; and that they would be seeking tuition reimbursement from the DOE. ( Ex. H).

When the parent visited the proposed school placement on June 26, 2012, she met with the principal and assistant principal. (T. 576) Ex.-H). She explained the reasons why she had so many concerns regarding the proposed placement, including but not limited to: (a) there were no teaching classroom and no one could tell her how much time he would get there; (b) some children had to work independently throughout the day, (c) no one could tell her to which class the student would be assigned and some classes had children ith multiple disabilities, (d) the DOE’s representation that it would most likely not be able to provide the student with his mandated related services at the proposed program, and (e) the DOE’s representation that related service providers were hard to find and keep at the school. (T. 581; Ex. H) No one ever responded to her letter of June26, 2013. (T. 587).

staff believed that they could implement the IEP at its program. On the first day of school in July 2012, the school had four different classes serving eleven year olds. (T. 259). Students were placed in the classes based on their ages and functioning levels. (T. 261). The instruction is differentiated according to the individual needs of the student. (T. 262). The school uses principals of ABA in the classroom. (T. 262, 263). There is a lot of repetition, instruction, and multisensory lessons in the classrooms. (T. 262). All the teachers at the school keep data on the students. (T. 262).

On the first day of the 12-month school year, available. ( T. 262). In the summer of 2012, students received 30 minute sessions of . ( T. 282). In the summer, if the student’s mandate was 45 minute sessions, the additional 15 minutes would be serviced through RSA’s. (T. 282). In September 2012, there was a shortage of therapists.

(T. 260). Some of the students were receiving their and some students did not.

Parent training is available at PS 37 and it is programmatic. It does not have to be on the IEP for the parents to receive the service. (T. 260-261).

At , the staff utilized the student’s results from ABLLS, VBMapp, Edmark programming and his previous IEP to develop new IEP goals for 2012-2013. (T. 51415, 517. Ex.-VV). Max had mastered many of his goals from his 2011-2012 school year

IEP. (T. 517-18).

considered the functional levels of the other students (and how they function as a group) as well as the students’ behavioral needs to place him in a class wich the staffa t thinks is appropriate for him. (T. 536).

utilizes ABA both in teaching new skills and in reducing behaviors. (T. 518, 520). ABA is used to break down academic and educational tasks and data is collected to make sure he is incrementally moving ahead and meeting his goals. (T. 520). is also using ABA to help . (T. 521).

To develop his Behavior Reduction Plan (BRP) (T. 523-25), analyzed the functions of the student’s behaviors in order to develop preventative strategies and reactive strategies. (T. 525-26). tracks this data throughout the year and modifies his BRP when appropriate. (T. 526; Ex.BB). He is making progress with BRP.( T. 330).

There are approximately six or seven Board Certified Behavior Analysts at . (T. 531). also provides its staff members with extensive training – both in ABA and otherwise. (T. 532). The day runs from 8:45 until 4:45. (T. 522). The annual tuition is $137,500 for the 2012-2013 school year. (T. 533).

Parent counseling and training is available to parents at (T. 534). Since the student presents with challenging behaviors and issues (and because he is getting bigger due to his age), his parents need the training in order to help him control his behaviors and increase his skills at home and in the community. (T. 533-34).

There are four students in his class at and his current teacher has been working with him for two years. (T. 408). The other students in the class are grouped based on age and functional levels. (T. 409). In addition to the speech therapist, there are six other full-time staff in the class. (T. 412). All of these individuals possess at least a Bachelor’s degree, although most either have or are pursuing Master’s degree. (T. 411-13).

The students in the class receive teaching instruction throughout each day. (T. 412). Every 45 minutes the teachers rotate to provide generalization and carryover. (T. 412). In his teacher’s opinion, he cannot gain skills in traditional “group instruction.” He must be taught in a setting with a lot of repetition and steps being broken down for him.

(T. 414). During group instruction, he needs a teacher with him at all times. (T. 416).

, and . (T. 413. T. 365).

The teacher stated that the student has made significant progress this year in the areas of reading skills, decoding words, blending consonants, engaging in books, counting money, and expressive language. (T. 438-39).

regularly takes the student out into the community to go to the grocery store, practice walking through the community appropriately, going to retail stores to practice purchasing items. (T. 439). He is also able to work and needs community goals and programming as a part of his program. (T. 362).

The student requires ABA as a part of his program. (T. 444). He works very well with high levels of reinforcement and requires that things are broken down into very small steps in order for him to learn. ( T. 444).

His speech therapist at delivers five, forty-five minute speech sessions at per week. (T. 363). Most, if not all, sessions are on a “push-in” basis in the classroom.

(T. 363). He has . (T. 359-60). This year, he is working on acquiring novel words, understanding linguistic concepts in the expressive sense, utilizing prepositions appropriately, responding to WH-questions, following three-step directions, following group directions, developing his language processing skills, addressing articulation deficits and expanding his receptive vocabulary. (T. 360-61). In terms of pragmatics, he has significant . He needs contact and interaction with peers. (T. 361-62).

therapist collects data daily. The data is tracked based on his IEP goals and is then graphed and analyzed to determine progress. (T. 364). is making meaningful progress. (T. 366). He mastered during this school year.( T. 366-67).

The at has known the student for many years and currently provides him with 1 services. (T. 308). A second OT also provides to him this year. (T. 308). HE receives four, forty-five minute occupational therapy sessions and one forty-five minute group session per week this year. (T. 209). He also receives weekly classroom consultation from the OTs. (T. 309). His are significant and global. (T. 316). Regarding , he is unable to attend for longer durations without sensory supports built into his activity. (T. 316). monitors and modifies his program regularly and provides him with a very regular sensory diet and exercise routine at the start of every work session. (T. 317, 321). HE “needs the sensory diet in order to be able to stay organized, attend to his teachers, and participate in an academic environment. (T. 322, 443-44). In addition, his motor needs are significant, and while he is motivated by and enjoys motor activities, he lacks fluidity in his movement. (T. 318). He also works regularly on increasing his overall strength. (T. 318).

In the area of fine motor, he has , including graphomotor skills. (T. 318). He is working on typing his personal information including his first name, last name and phone number. (T. 318). Regarding self-care skills, he is working on manipulating clothing fasteners and tying his shoes while standing up. (T. 319-20).

has a variety of , include a sensory gym with suspended apparatus, and a treadmill. (T. 323).

The student is making steady progress achieving his OT goals. During this year alone, he has learned to tie his shoelaces, type his first and last name, engage in core building exercises for longer periods of time, negotiate around obstacle while on a scooter or similar piece of equipment, and form written words in a space smaller than an inch. (T. 329).

The student’s staff team at participate in regular “team meetings” to discuss, among other things, his programming and progress. (T. 448). They believe is appropriate for him.

The parent provided consent for evaluations, shared reports, and remained cooperative through the entire IEP process. (T. 213-14, 562-63).

CONCLUSIONS OF LAW

The parents have alleged 120 violations in their impartial hearing request. Their brief does not address each of them individually. To the extent that they have not been separately addressed in the briefs by the DOE or by the parent, there will be no discussion about them in this decision as they are either considered abandoned or the decision incorporates them in the discussion of other allegations.

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).

A FAPE “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 Disability, Appeal No. 99-17] In determining whether an IEP is appropriate, the court must consider “whether the School Board complied with the procedural requirements of the IDEA, and . . . whether the IEP. 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). The DOE has the burden of production and persuasion in an impartial hearing to satisfy the first prong in a tuition reimbursement case. Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007. In this proceeding, the DOE must demonstrate the appropriateness of the IEP, its recommended program and placement. The DOE has the burden of proof regarding all of these issues which it did not fully meet.

An IEP must “be reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) [quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998)]. An IEP is adequate under the IDEA if it is “likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement.” T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009). An IEP is not required to “furnish . . . every special service necessary to maximize each handicapped child’s potential.” Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003).

Courts conduct a two-part analysis to determine whether a school district has offered to provide a student with a FAPE: “First, the court asks whether the State complied with the procedures set forth in the (IDEA). . . . Second, the court asks whether the IEP developed through the (IDEA)’s procedures [is] reasonably calculated to enable the child to receive educational benefits.” M.H. v. New York City Dept. of Education, 685 F.3d 217 at 245 (2nd Cir 2012).

Not every procedural error will render an IEP legally inadequate. Id. Rather, relief is warranted only if the alleged procedural inadequacies “(I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of [a FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii).

The parents allege that the CSE failed to conduct evaluations which were specifically requested by them such an an evaluation for assistive technology. However, when developing an IEP, a CSE is required to “review existing evaluation data on the child, including–(i) evaluations and information provided by the parents of the child; (ii) current classroom-based, local, or State assessments, and classroom-based observations; and (iii) observations by teachers and related service providers.” 20 U.S.C. § 1414(c)(1)(A). After reviewing that information, the CSE then determines whether additional data are needed to complete the IEP. 20 U.S.C. § 1414(c)(1)(B). If needed, the CSE should administer an assessment or evaluation. 20 U.S.C. § 1414(c)(2). The CSE is authorized to decide that no further evaluations are needed. 20 U.S.C. § 1414(c)(4). State and federal regulations also require the that the results of the initial or most recent evaluation of the student and any independent evaluations obtained at public expense be considered in connection with the development of the IEP. 34 C.F.R. § 300.324; N.Y. Comp. Codes R. & Regs. tit. 8, §§ 200.4(f)(1), 200.5(g)(1)(vi). In this case, the CSE did review and consider extensive data and reports and received extensive input from staff and the parent prior to and during the IEP meeting. It was not required to conduct or request additional evaluative material.

The parents also allege that a lack of a plan to transition from to a public school program is a denial of FAPE. Although had reported that the student has difficulty with making transitions, no one could recall whether transition from the ABA program at into the DOE’s program was discussed and transition was not noted on the IEP. ( T. 215). courts have held that there is no requirement that an IEP specify a transition plan for a student attending a new placement. E.Z-L v. New York City Dep’t of Educ.; 09 Civ 8998, 2011 U.S. Dist. Lexis 6335; A.L. v. New York City Dep’t of Educ., 1:10-c-v-06841-BSJ.

The parents further alleged in the impartial hearing request that the CSE was not properly constituted. However, the IEP reflects that all of the required participants were present at the meeting. The absence of the OT where her report was submitted and considered does not constitute a denial of FAPE.

The parents have also alleged that parent training was not included on the IEP and thus, FAPE was denied to the student. However, the Second Circuit has held that the absence of parent training and counseling from the IEP does not result in a violation of FAPE because “[t[he presence or absence of a parent-counseling provision does not necessarily have a direct effect on the substantive adequacy of the plan . . . Moreover, because school districts are required by section 200.13(d) to provide parent counseling, they remain accountable for their failure to do so no matter the contents of the IEP. The evidence shows that parent training at the recommended school was programmatic and available to the parents there. (t. 199-200) There was no evidence presented do the contrary. Parents can file a complaint at any time if they feel they are not receiving this service. R.E. v New York City Dept. of Educ., 694 F3d 167, 191 (2d Cir 2012). The absence of parent training and counseling on the IEP does not result in the denial of FAPE. The parent erroreously cites to N.Y. COMP. CODES R. & REGS., tit. 8, § 200.13(a) for the proposition that parent training is required to be noted on the IEP. However, parent training is not referred to in that section. Rather, N.Y. COMP. CODES R. & REGS., tit. 8, § 200.13(d) refers to parent training and other that statin that it must be provided to the parents of children with autism, it does not require that such services be placed upon the IEP.

The parents allegation that the student was denied a FAPE because no particular teaching methodology was mentioned on the IEP is also erroneous. In fact, the evidence showed that ABA principles were utilized at the recommended school along with other methods where appropriate. Although the parent and the teacher at believed that the child required only ABA instruction, an IEP is not inadequate because the DOE failed to discuss “any teaching or behavioral intervention methodologies” at the CSE meeting or to disclose such methods prior to the IHO hearing. K.L. v. New York City Dept. of Educ., 1Civ-373 (SDNY, 8/8/2012); SF v. New York City Dept. of Educ., 11-cv-05131 (SDNY, 10/16/2012) (“The Fourth Circuit has held that "[n]either a state administrative hearing officer nor a reviewing court may reject an otherwise appropriate IEP because of dissatisfaction with the educational methodology.”); See, 20 U.S.C. § 1414(d)(1)(A); 8 N.Y.C.R.R. §200.4(d)(2). In K.L., the Court found the IEP sufficient where it recommended special education and related services and specifies “behavior intervention” strategies but lists no methodology in the IEP. Id. In this case, the CSE did not recommend any specific methodology because it leaves it up to the school to use what is appropriate for the student. (T. 250).

The parent alleges that FAPE was denied because the parent had no input in to the placement recommendation that appears on the FNR. They argue that the nature of the words

“Final Notice” means that they have not been allowed the right to participate in the placement decision at the IEP meeting.. However, the evidence shows that the CSE does not decide upon the placement or issue the FNR. That decision is made by the placement officer. Moreover, the word “recommendation” is the operative word. The parent is never required to accept that recommendation and has ample opportunity to visit the recommended placement and to reject it if they are convinced that it cannot provide necessary or required services to their child. That is exactly what occurred here.. Federal courts have held that, a child's "educational placement" refers only to the "general educational program--such as the classes, individualized attention and additional services a child will receive--rather than the 'bricks and mortar' of the specific school." Thus, while a school district is required to ensure that parents have the opportunity to participate in formulating their child's general educational program, it is not required to involve them in its decision regarding the specific placement recommendation for the child. E. Z-L, 09 Civ 8998, 2011 U.S. Dist. Lexis 6335; T.Y., 584 F.3d 412 (2012).

Thus, the fact that they were not personally involved in the process of choosing a recommended school is not a denial of FAPE. The parents urge that FAPE was denied because the goal and objectives on the IEP were inadequate. However, the evidence shows that they were all created by and its staff, ( T. 166-182). This was the best source for that input since they are the most familiar with the student’s educational abilities and can best set the bar for his expected levels of progress. The goals and objectives on the IEP were measurable and addressed the student’s delays in academics, communication, fine and gross motor skills, sensory processing skills, social/leisure . (T.

166-182; Ex. 1.6-1.12).

The goals and objectives had elements of ABA used at . The goals were designed to meet the student’s needs in an environment that used a methodology that would appropriately meet the child’s needs whether it be ABA or otherwise. (T. 185).

Thus, the goals on the IEP were appropriate.

The parents alleged that the IEP failed to include any goals that would promote generalization. However, the failure to do so does not deny that student a FAPE. The

11th Circuit has held squarely that "generalization across settings is not required to show an educational benefit" and that anything "more than making measurable and adequate gains in the classroom, [is] not required by IDEA. Devine v Indian River County School

Bd, 249 F3d 1289, 1292-93 (11th Cir 2001); San Rafael Elementary School District v.

California Special Education Hearing Office, 482 F. Supp.2d 1152, 1161 , Thompson R2-

J School District v. Luke P., 540 F3d 1143 (10th Cir 2008). The parent has not cited any cases to the contrary. In any event, the IEP contained some goals which address generalization. For example, the student was to work on developing appropriate leisure engagement during hobby group and social interactions. (Ex. 1.13-1.16) and the IEP addresses generalization skills.

The parents allege that the CSE failed to create and appropriate FBA and BIP and thus, denied the student a FAPE. The evidence includes an FBA and a BIP. (Ex.7) SO clearly these documents were created. They also allege that if they were created, they were not created in conformity with proper procedures and did not include or mention all of the students behaviors..

The evidence shows that there was a discussion at the IEP meeting with the parent and teachers about his behavior which . (T. 186-187). The CSE also reviewed several documents which contained information about his behaviors, such as the educational progress report and ‘s IEP. ( Ex. 2 and 3). As a result of this discussion, an FBA and a BIP were created. (T. 187, 188, 605-608; Ex. 7). The FBA contained a list of behaviors, their frequency and settings, which the IEP aimed to decrease during the 2012- 2013 school year. (T. 191-192, Ex. 7.1). The FBA also contains information of the purpose of the behaviors, interventions that were previously attempted and what the expected changes were to be (Ex. 7.2) The information on the FBA was created by reviewing ’s documents, and information provided by his teachers and parents at the IEP meeting. (T. 191-193). The BIP lists the targeted behaviors, the expected behavior change and the criteria for outcome measurement. (T. 194-195; Ex. 7.3). The information in the BIP was based also on the documents provided by , input from the parent and teacher at the IEP meeting. (T. 195). The parents urge that FAPE was denied because not every single behavior was listed on the BIP and not enough data was provided on the frequency or duration of the behaviors. While that is true, it is insufficient to conclude that such omissions constitute a denial of FAPE where, as here, the IEP as a whole gives a clear picture of the students behavioral needs.

The parent also objected to the timing of the preparation of the FBA and the BIP claiming that they were completed after the CSE meeting and they never received either of the them until the hearing. The DOE points out that the FBA two dates, May 23, 2012 and June 16, 2012. (Ex .7). As explained at the hearing, the May 23rd date represented the date that the information for the FBA was gathered at the IEP meeting. (T. 190).

June 16th represents the date that the information was typed and the FBA was finalized.

(T. 189-190; Ex .7). The IEP team said it mailed a copy of the FBA and BIP to the parents along with a copy of the IEP on or about June 22, 2013. (T. 238). The parent said she never received them and the DOE did not produce proof of mailing..

In any event, the absence of an FBA and BIP does not result in a denial of FAPE.

Where the CSE addressed a ; and the CSE created the IEP based on information provided by the student’s teachers, service providers, parents, and observation by the DOE. A.L. v.

New York City Dep’t of Educ., 1:10-cv-06841-BSJ, T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 419 (2d Cir. 2009), R.E. v. New York City Dept. of Education, 694 F3d 167

(2d Cir 2012).

In the present case the parent testified that the CSE had a discussion and identified behaviors which interfered with his instruction. (T. 605-608). Those behaviors were listed throughout the IEP. (Ex. 1.1, 1.2, 1.3). Academic management needs and goal and objectives were created to address the student’s behavioral issues. ( T. 167-169, Ex. 1.3,

1.5, 1.6 and 1.18-1.19). The IEP was based on information contained in the documents reviewed by the CSE including a classroom observation and information provided by teachers and the parent. The IEP sufficiently addressed the student’s behavioral issues.

Although the DOE adequately defended many of the allegations made in the parents’ request , the DOE failed to meet its burden in other significant areas which had a substantive impact on the outcome of the meeting. And those failures did deny the child a

FAPE.

The DOE failed to carry its burden of proof with regard to whether the IEP could be properly implemented at the recommended school.

While the evidence shows that the school four different classes serving eleven year olds. (T. 259) and students were placed in the classes based on their ages and functioning levels (T. 261). There was no proof offered as to the ages of the children in these classes or into which of the four classes the student would have been placed. The evidence refers to “age range” of “11 year olds” but that is not a range. There was also evidence that:1) the instruction at is differentiated according to the individual needs of the students (T. 262), 2) The school uses principals of ABA in the classroom ( T. 262,

263); 3) there is a lot of repetition, one to one instruction, and multisensory lessons in the classrooms ,(T. 262) and 4) all the teachers at the school keep data on the students. (T.

262). But, that evidence is too general to conclude that this students individual needs could have been met at the school. There was no evidence as to how this student would have his instruction modified or differentiated based upon his level of need. There was no evidence as to whether any of the teachers who chose to use ABA principles were trained in ABA instruction or that they were trained on any alternative methodologies used to teach autistic children at the school. There was no evidence as to how much instruction would have been offered to the student by a teacher which everyone agreed that he needed. The testimony the instruction was offered at the school throughout the day is incredible given that there was only one teacher in the classroom. The testimony was obviously and erroneously assuming that a crisis para could give “instruction” throughout the day but there is no evidence that the para is trained to teach anything at all. There was no evidence as to what type of data was kept by the teachers or for what purpose it would be used.

Moreover, on the first day of the 12-month school year, had available. (T. 262) but students could only receive 30 minute sessions of each. (T. 282). This would not satisfy the mandate on this student’s IEP that the sessions be of 45 minute duration. The notion that the additional 15 minutes of related services could be provided through Related Service Authorization (RSA)’s as of the first day of school is unconvincing. (T. 282). The evidence showed that none of the students were receiving 45 minute session in June or July of 2012 even when they were mandated on the IEP. (T. 282,282) In addition, as of September 2012 the school was still unable to fulfill 45 minute mandates for all of the students in the school. (Ex. QQ). The evidence shows that although the DOE wanted those mandates to be fulfilled, this school was still waiting for an as of December 2012.

(T. 282, 283). Since the appropriate amount of actually mandated on the IEP could not be provided at the school, it is not necessary to decides whether the student’s mandate should have included an additional amount of in a group because there was no evidence that it could not have been provided either.

Where, as here, the DOE fails to carry its burden of showing that the studentwould receive the 1:1 OT for 45 minute sessions as set forth in the IEP, the proposed placement is substantively inappropriate under the IDEA and constitutes a denial of FAPE. B.R. v. N.Y.C. Dep’t of Educ., 2012 U.S. Dist. LEXIS 182305 (S.D.N.Y. Dec. 26, 2012), 2012 U.S. Dist. LEXIS 182305 at *19; D.C. ex rel. E.B. v. New York City Dep't of Educ., 2013 U.S. Dist LEXIS 42764 (S.D.N.Y. Mar. 25, 2013)( DOE bears the burden at hearing to prove that its IEP program can, in fact, be appropriately implemented at its chosen school.

Finally, and perhaps most significantly, the parents allege that program, even if it could be properly implemented, does not provide a FAPE to the student. They allege that he requires instruction throughout the day without which he cannot learn new material or make meaningful progress.

As the DOE correctly argues the IDEA requires that the student be provided with a “basic floor of opportunity . . . consisting of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.” Bd. of Educ. v. Rowley, 458 U.S. 176, 201 (1982). An IEP is appropriate if it “is likely to produce progress, not regression” and provides an opportunity for more than mere “trivial advancement.” Walczak, 142 F.3d at 130 (internal quotation marks omitted). The IDEA only guarantees “an appropriate education, not one that provides everything that might be thought desirable by loving parents.” Id. However, the DOE retains the burden of proof to establish that its recommended program will provide more than trivial advancement and produce progress. At the CSE meeting, the DOE did not consider a program. (T. 219-20) The CSE’s recommendation of a program. was contrary to most of the reports and recommendations made by his teachers, providers and parent and available to the CSE at the meeting. Where the CSE failed to follow recommendations made by the majority of the reports and recommendations before it at the IEP meeting, tuition reimbursement has been ordered. M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 252 (2nd Cir. 2012) (parent awarded tuition reimbursement where IEP failed to account for a report that student required instruction). R.E. v. N.Y.C. Dep’t of Educ.,694 F.3d 167 at 193-94 (parent awarded tuition reimbursement where the “majority of reports” indicated that the Student required instruction); Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 859-60 (6th Cir. 2004); P.K. ex rel. S.K. v. N.Y.C. Dep’t of Educ., 2013 U.S. App. LEXIS 10477; C.L., 2013 U.S. Dist. LEXIS 3474.

The DOE witnesses who referred to by a para is equivalent to teacher support is unconvincing. There is a difference between a paraprofessional and teacher. (Ex. 3 at 4;

T. 160, 209, 210 ) . In January 2012, SED issued a Field Advisory warning CPSEs and CSEs that “one-to-one aides may not be used as a substitute for certified, qualified teachers for an individual student or as a substitute for an appropriately developed and implemented behavioral intervention plan or as the primary staff member responsible for implementation of a behavioral intervention plan … Primary instruction must be provided to the student by a certified teacher.” (Ex.UU). At a teacher was provides the student with support throughout the day even during group sessions.

In CI, Judge Rakoff held that where the parents and teacher communicated that the student required significant instruction in order to make progress,. and the DOE offered class with a behavior para, the DOE had not shown that the recommended program would offer the student an opportunity to make meaningful educational progress. See, Jennifer D. v. N.C. Dep’t of Educ.Y., 550 F.Supp. 2d 420, 435 (S.D.N.Y. 2008) (witnesses who work with a student on a daily basis have “particular insight into the type of program appropriate” for that student). As in the case of CI, none of that evidence rebutted the testimony of the witnesses that, based on their extensive experience with the student, he required instruction to learn new skills. Thus, the DOE failed to meet its burden to show that a program would provide the student with a FAPE.

Having concluded that the DOE failed to meets its burden in significant ways that FAPE was provided; the parent has the burden to show that their unilateral choice of private school is reasonably calculated to provide and educational benefit to the student.

A private school placement must be "proper under the Act.” See Carter, 510 U.S. at 12-15; see also Burlington, 471 U.S. at 370. The private school must offer an educational program which meets the student's special education needs. See Gagliardo, 489 F.3d at 111-115. However, the parents’ burden is somewhat less stringent and more relaxed than the Prong I standard to which a school district must adhere in offering a child a FAPE. Parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement. R.E. 694 F.3d at 187, Frank G., 459 F. 3d at 364-65.

The preponderance of evidence presented here supports the appropriateness of . As summarized above, provides the teaching support and services which the student requires. Even the DOE conceded that the student was making progress at .

(T. 204) and his teacher works adequately with him.( T. 210). Accorsingly, is found to be an appropriate placement.

The final consideration is whether the equities in this case tip on favor of the parent. The parents have the burden of proving that equitable considerations favor their claim. Thies, M.D. v. New York City Dept. of Educ., 2008 U.S. Dist. LEXIS 123252 (SDNY, June 27, 2008); R.E., 11-1266-cv (2nd Cir., September 20, 2012). The parents have met that burden.

The DOE argues that the equities should tip in its favor because when the parent wrote to the CSE informing them that she had an issue with the IEP in that it did not have “appropriate and insufficient behavioral interventions” they never informed the CSE that they did receive a copy of the FBA or BIP. (Ex. H) However, since that is the only reason the DOE has offered for the parents’ failure to cooperate, it is not enough. Whether the parent informed the DOE or not of the fact that they did not receive the FBA and the BIP is not relevant to a consideration of the equities here. Since the DOE did not produce any evidence that it sent those documents to the parent, it is questionable whether it did so since the parent said that she did not receive them until the hearing. To hold the parent responsible for the DOE’s failure in this regard would be wrong. In addition, the parent offered evidence to show that she cooperated with the DOE. They provided consent for evaluations, shared reports, and remained cooperative through the entire IEP process. (T. 213-14, 562-63), C.L. v. N.Y.C. Dep’t of Educ., 12-1676, 2013 U.S. Dist. LEXIS 3474 (S.D.N.Y. Jan. 3, 2013) (parents’ “full and active” participation in IEP process meets prong their III duties). Accordingly, the parents met their burden to show that the equities tip in their favor.

ORDERED that the DOE shall reimburse the parent for the tuition they have paid to , if any of the $50,,000 paid by the parent (Ex. R) is still owed since pendency has been in effect, for the 2012-2013 school year within two weeks of the receipt of this decision.2 Dated: July 1, 2013

________________________

JUDITH T. KRAMER, ESQ.

Impartial Hearing Officer JK;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

There was no evidence presented with regard to transportation costs so that request is denied. 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

DOE’s Exhibits

EXHIBIT DATE DESCRIPTION NUMBER OF

NUMBER PAGES

1 05/23/2012 IEP 29

2 12/06/2011 Educational Progress 9

Report

3 05/09/2012 Classroom Observation ^[6]

and Teacher Interview

4 01/2012 Progress Report 5

5 7/2011-6/2012 School IEP 14

7 05/23/2012 FBA and BIP 4

Parent’s Exhibits Sequence # EVIDENCE DESCRIPTION Date of # of Date of Status

Evidence Pages Disclosure A Demand for Due Process and fax confirmation 07-17-12 15 08-23-12 IN B -07-10 26 08-23-12 IN

By: IHO Robert Briglio, Esq.. C Amended Demand for Due Process and fax 08-23-12 15 08-23-12 IN confirmation D NYC DOE IEP with Envelope Dated: 30 10-19-12 IN

05-23-12

Received:

06-22-12 E Letter from Parents to the District with fax 06-15-12 03 10-19-12 IN confirmation (10-day letter)

F NYC DOE FNR 06-19-12 02 10-19-12 IN

G FNR Response with fax confirmation 06-21-12 04 10-19-12 IN H Placement Rejection Letter from Parents to DOE 06-26-12 05 10-19-12 IN with fax confirmation I NYC DOE Due Process Response 07-23-12 05 10-19-12 IN J Resolution Response Letter with fax confirmation 08-03-12 02 10-19-12 IN K Letter from District to Parent 09-05-12 01 10-19-12 IN L Letter from parents to District with fax 09-19-12 01 10-19-12 IN confirmation M The School Department 05-2012 06 10-19-12 IN

M.S., CCC-SLP

N The School Educational Progress Report 06-11-12 09 10-19-12 IN

, ABA Therapist O The School Occupational Therapy Report 06-22-12 06 10-19-12 IN

, PhD, OTR/L

P The School Proof of Payment 04-12-12 01 10-19-12 IN Q The School Enrollment Contract 07-10-12 03 10-19-12 IN R The School Affidavit 08-06-12 01 10-19-12 IN S The School Attendance Record 07-2012 – 01 10-19-12 IN

08-2012 T The School Assessment of Basic Language 09-01-08 – 03 10-19-12 IN and Learning Skills (ABLLS) 08-10-12 U The School Occupational Therapy Scores 06-2012 01 10-19-12 IN V The School Speech and Language Test 04-20-12, 02 10-19-12 IN

Results 04-24-12,

M.S., CCC-SLP 04-25-12,

04-27-12 W The School 2012-2013 IEP 06-15-12 18 10-19-12 IN X The School Occupational Therapy IEP 05-2012 02 10-19-12 IN

Goals Y The School Classroom Profile Undated 01 10-19-12 IN Z Physical Health Report 01-10-12 02 10-19-12 IN

, MD, FAAP

AA The School Graphs 07-2012 – 29 10-19-12 IN

09-2012 BB The School Behavior Reduction Plan 06-15-12 04 10-19-12 IN CC The School Program Description Undated 01 10-19-12 IN DD Subpoenas Signed with fax confirmation 09-04-12 11 10-19-12 IN EE Behavioral Intervention Plans 05-2011 02 10-19-12 IN

The University of the State of NY FF Functional Behavioral Assessments 05-2011 02 10-19-12 IN

The University of the State of NY

GG 05-2011 02 10-19-12 OUT

HH Paraprofessional Qualifications Undated 02 10-19-12 IN II T.E.A.C.H. Methodologies Undated 03 10-19-12 IN

NYCDOE

JJ A.B.A Methodologies Undated 03 10-19-12 IN KK District 75 Placement Office Referral Form (Blank) 10-2010 01 10-19-12 IN LL Jose P. 07-28-88 18 10-19-12 OUT MM Standard Operating Procedures Manual Undated 77 10-19-12 OUT

NYC DOE

NN NYC DOE Special Education Service Delivery Undated 01 10-19-12 IN

Report OO 2012 D-75 Organization Directory 08-2012 03 10-19-12 IN PP 2010 D-75 Organization Directory 10-2011 03 10-19-12 OUT QQ DOE’S Response to Subpoena’s Various 09 IN RR The School Educational Progress Report 12-21-12 12 02-01-13 IN SS The School Occupational Therapy Report 12-2012 07 02-01-13 IN

MS, OTR/L

TT The Department Progress Report 01-2013 03 02-01-13 IN

., CCC-SLP

UU Special Education Field Advisory 01-2012 07 03-27-13 IN VV The School IEP 03-01-13 21 04-24-13 IN WW The School Proof of Payment 04-11-13 01 04-24-13 IN

---

Footnotes

[6] 05/2012 Occupational Therapy 5 IEP Goals