New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: January 3, 2013

February 5, 2013

Actual Record Closed Date: April 22, 2013

Hearing Officer: Amy Lynne Itzla, Esq.

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

Esq. Attorney — Parents

M.D. Father — Parents

School Psychologist (via telephone) CSE — DOE

Esq. Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 5, 2013

Esq. Attorney — Parents

A.D. Mother — Parents

Dr. Pediatric Neurologist — Parents

Director — Parents

Esq. Attorney — DOE

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding The hearing was convened at the written request of the Parents by letter dated July 25, 2012. (Exhibit 1)1 A hearing was held on January 3, 2013, and February 5, 2013, at the Department of Education (“DOE”) offices located at 131 Livingston Street, Brooklyn, New York. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.

Throughout the course of this hearing, the parties requested extensions of the 45day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

BACKGROUND

condition that results in . . is essentially . She is fed primarily through a . . uses a wheelchair as well as a variety of other equipment. . suffers from various additional . (Exhibit 8)

The DOE’s Committee on Special Education (“CSE”) convened on May 9, 2012, to develop an Individualized Education Plan (“IEP”) for I.D. for the 2012-2013 school year. I.D. is classified by CSE as a student with a “multiple disabilities.” In the IEP created on that date, the CSE recommended placement in a Special Class with a “ )”

The DOE’s exhibits are numbered. The Parents’ exhibits are lettered. ratio2 in the District program. (Exhibit 13, p.11) The CSE also recommended the related services of individual and group therapy, physical therapy, and occupational therapy. The CSE also recommended the services of “school health services,” as needed, for service with tube.” Additionally, the CSE recommended a full-time paraprofessional to assist . with “all aspects of ambulation, feeding and motor functioning.” A Final Notice of Recommendation, dated June 15, 2012, was sent to the Parents with a placement offer, noted as “Site and Address,” as “ .” (Exhibit 15)

By letter dated June 15, 2012, the Parents informed the CSE of their intention to unilaterally place as of the first day of the twelve-month 2012-2013 school year and to seek tuition reimbursement from the DOE. (Exhibit G) The Parents further expressed their rejection of the IEP for procedural and substantive reasons, and specifically stated that, “The substantive program recommended is not appropriate for ., and the goals written for her in the IEP cannot be met in the program that was recommended.” Finally, the Parents noted that, as of the date of their letter, neither the IEP document nor a Final Notice of Recommendation had been received.

By letter dated July 25, 2012, the Parents requested an impartial hearing. (Exhibit

1) In addition to the procedural and substantive challenges to the IEP and to the program recommended, the Parents described their visit to the proposed site and the basis for their position that it was “grossly inappropriate” .

The Parents assert that the CSE failed to provide a Free Appropriate Public Education (“FAPE”) to I.D. for the 2012-2013 school year. The Parents are seeking reimbursement from the DOE for the tuition they paid to for the 2012-2013 school year.

POSITIONS OF THE PARTIES

THE DISTRICT’S CASE

is a school psychologist for the DOE assigned to the CSE for Region 10. He served as the District Representative and school psychologist on the CSE responsible for creating I.D.’s IEP for the 2012-2013 school year, along with , a DOE pathologist and The staffing ratio for this class was referred to as a 12:1:4 throughout this proceeding. special education teacher. Mr. testified that the CSE had certain documents to review in preparation for the CSE meeting held on May 9, 2012. The CSE had a evaluation, a physical therapy progress report, a progress report, a progress report from , and a request for a physical examination. (Exhibits 7, 8, 9, 10, 11, 12) The CSE did not conduct any evaluations, assessments or observations of I.D. (Tr. 89) Mr. confirmed the individuals who participated in the meeting: himself, Ms. , both Parents, and , the Director of . Ms. participated by telephone. (Tr. 11-17) At the time of his testimony, Mr. did not have an independent recollection of the CSE meeting. (Tr. 17)

Neither Mr. nor Ms. had ever met, observed or evaluated . The Parents and Ms. were the only participants in the CSE meeting who knew . (Tr. 27-28) Mr. O’Sullivan understood the Standing Tall program to be a small program with a total of 10-15 students divided into 2 or 3 classes. At the time of the CSE meeting, Mr. was unaware of .’s current class size, although he acknowledged that it would be important information for the CSE. (Tr. 28-30) Mr. acknowledged that he was aware that a group of twelve students was far greater than the number of students in , approximately four or five. The CSE did not consider any programs with a class size smaller than twelve students. The programs with fewer students do not have the same level of paraprofessional support. Mr. stated that if there were a program with a smaller class size, with a higher level of paraprofessional support, he would have considered it for (Tr. 37-41)

Mr. explained that prior to the meeting, and the related service providers submitted draft goals. The goals were discussed, slightly modified where appropriate, and entered as goals in the IEP. (Tr. 17) The management needs section of the IEP was created from both the documents and the discussion at the meeting. Mr. stated that, “ had significant challenges in the area of . And she made a lot of use of or alternative means of communication in demonstrating her mastery of things being taught. So to use this different program as it was presently being used would be important going forward.” (Tr. 18) Mr. confirmed that the social development and physical development sections of the IEP were based on the reports submitted, as well as on the discussion at the meeting. (Tr. 18-19)

Mr. explained the basis for the CSE’s recommendation of a (12 students, 1 teacher, and 4 paraprofessionals) program with a health paraprofessional. He stated that I.D. presents with significant developmental delay that warrants a full-time, twelve-month special education program. She presents with “significant challenges and special education needs in all areas of functioning, and would not be able to be incorporated into a general education curriculum.” “Given her significant medical and physical challenges, it would require a high level of staff in the classroom to move her about, and to see to her physical needs, and to implement her instructional program.” (Tr. 20-21) The paraprofessional was recommended for safety and health reasons. The CSE also recommended a transportation paraprofessional to attend to her physical needs. Mr. stated that the “eye gaze,” under “Assistive Technology Devices and/or Services,” refers to an assistive technology device. (Tr. 21-22)

The frequency and duration of the related services recommended . were “largely driven by the progress reports.” The CSE recommended “school health services” because . needs a school nurse to facilitate her . (Tr. 22-23) Mr. confirmed that there had been discussion at the meeting regarding the Parents’ concern that . be out of her wheelchair during the school day. He explained that it is “good educational practice to move a child with those challenges to move them around during the school day, and to maximize opportunities for . I do believe that was part of the general discussion and there was no disagreement about that.” Mr. stated that “implicit” in the recommendation for related services, would be the opportunity for . to be moved around. He believes that the IEP “afforded ample opportunity for that.” (Tr. 24-26)

Mr. testified that in his “informal” meeting minutes, he had indicated that the Parents were “in agreement with IEP as developed.” (Exhibit 14; Tr. 26-27) Mr. testified that, although Dr. s report had recommended that . continue to attend , he had made it clear, at the outset of the CSE meeting, that, “[W]e were recommending either a public school setting or an approved nonpublic school setting. That we didn’t have the ability to recommend a non-approved setting such as Standing Tall.” Neither Mr. nor Ms. contacted Dr. to discuss her recommendation. (Tr. 36-37)

THE PARENTS’ CASE

Dr. is Board-certified in pediatrics, developmental and behavioral pediatrics, and child neurology. She has been seeing in her private medical practice, Neurodevelopmental Pediatrics since 2004. Dr. explained that . has an called . She also has . Her are primarily in the . This condition has affected her development in every way. She has only a limited ability to move herself, manipulate objects with her hands, and very limited . From a very early age, , which is inserted through her abdominal wall into her stomach, as her primary source of nutrition to avoid the need to swallow. She is because she lacks the motor capacities to make the sounds needed for speech. to her environment, in the ways she can be. (Tr. 106-110, 114)

. is totally dependent for all activities of daily living: including dressing, feeding, bathing, and toileting. Her communication is dependent on her communication partners’ ability to understand what she is trying to say. Although . is alert and engaging, she is highly distractible. If there is too much going on in the classroom, or in other settings, she can . She requires a special type of teaching, where she is taught in multiple ways to get her to really understand. She also needs repetition. (Tr. 110-111)

Dr. . must be in a wheelchair or in supportive seating. She must also be out of the wheelchair for a variety of reasons. for too . She can also . It is very important for . to be in different positions, including ones that , so that the stimulation causes the bones to get stronger. When she is on the ground, she is unable to roll. She needs this activity to develop her head control in order to maintain her posture. (Tr. 112- 113) The problems with .’s muscles can result in them being too tight, which is spasticity, and leads to many complications. Dr. described . as having “ ,” which means she has . (Tr. 115)

Dr. stated her opinion with regard to the classroom setting appropriate for She requires a small class without too , in order to prevent her from and . She needs a program that allows her to be treated throughout the day with different kinds of movements. Being in different positions throughout the day is important from a medical perspective but also educationally. She must be in a program that provides her with a means of communication. “ She’s . She has opinions. And she needs to have a program that allows her to when she wants to communicate.” Her academic progress must be assessed through adequate communication. For example, it is not enough for her to respond . (Tr. 116-117)

Dr. . She has had several patients who attended the school. She most recently visited the school in June 2012, and has observed . in the classroom. Dr. explained her understanding of the two-pronged program at . Conductive education is a philosophy used with children who have neurologically-based motor impairments. Its premise is that these children need as much functional movement and independence as possible. They use programs for , for example. There is a teacher, called the “conductor,” and each child has to have their own aide because the program is labor intensive. While the child is assisted in different physical activities, the conductor provides the academic component. Along with the conductive education component of the program, is Communican. It is also a labor intensive program to teach language. Many children are taught to communicate through labeling programs, through which they identify different objects, for example. The helps children learn how to use language. They are taught to use language socially, and language is needed in order to learn. . is unable to use her finger to point or touch a communication system because she lacks the motor function. . can use to make selections. She looks at using Then, she can further . She can and then the . Although it is very slow, it gives a child a voice. Through this program, . has and more of a person. According to Dr. .’s motor skills will never improve greatly; however, she needs to work on her strength, flexibility and joint mobilization. Dr. believes that the is an appropriate placement for . because it addresses her major her . . is not just . She is on the floor, sitting in a chair, and moving. “Movement which impact your ability skills.” (Tr. 117-122)

is the Director of . She has been working in special education for twenty years and has been a conductor for the last fifteen years. She is responsible for the students and staff at The mission of the school is to “build bridges between the students and the outside world in a joyful environment.” The school primarily serves students with neurological conditions who . There are fifteen students in the 2012-2013 school year, from ages five to fifteen, broken into three classes. The conductors at the school are special educators, although not state certified, specializing in conductive education, which is an educational philosophy designed to work with individuals with neurological conditions. All of the conductors at the program have a bachelor’s degree-level certification in conductive education. Students are grouped by ability, age and cognition. There are never more than six students in a class. There is a primary teacher and an assistant teacher in each class. It is a twelve-month program. There is a weekly staff meeting, and other meetings held as needed. Ms. described the admissions and hiring processes for which she is responsible at the school. She also described the curricula employed in the program. (Tr. 145-151, 186)

There are two written progress reports that are created each year. Goals are written for the students in a very specific manner in order to be easily measurable. There are two parent-teacher conferences each year and monthly telephone conversations. (Tr. 154-155)

. started at the school in 2007, the same time as Ms. Skinner. Ms. Skinner described .’s significant physical needs. She has and must have assistance with all gross and fine motor skills. She has some . She is a student. She expresses enthusiasm with her whole body “lighting up.” She has a great smile. She is a people pleaser and wants to interact and be part of the group. She is very aware of what is going on around her. . has an ability to remember and maintain information very clearly. She has an amazing memory and desire to learn. With the communication system, she is able to express herself more clearly so anyone can understand her communication. (Tr. 156-157)

.’s class for the 2012-2013 school year is made up of six of the older students in the school, all with very similar cognitive levels to is at the lower end of the physical abilities within the group. Each student has their own paraprofessional, and there are currently two conductors working with the class throughout the day, in both the conductive education and Communican portions of the school day. . was placed in this class because she and the older class works on a higher grade level academically. She was also socially appropriate for the group. (Tr. 158-160, 185) The class is working on curriculum levels from grades two through four. The work is doing is primarily at the level of grades three and four. (Tr. 167) Each student in .’s class has their own full-time paraprofessional funded by the child’s parent. (Tr. 179)

.’s school day is from 9:00 a.m. to 3:00 p.m. Her day begins with the conductive education program. The conductive education program addresses ’s physical needs. She gets out of her wheelchair and moves her body independently. As opposed to her therapy sessions, during which her body is moved by the therapist, . is responsible for moving her own body. . receives help with tasks she finds challenging. She completes three main programs of conductive education. She does a where she is in a and completes a series of movement tasks she is expected to complete. She is either on a wooden table, called a plinth or on a mat on the floor during the line program. She then moves into a seated position and does similar movements. There is a bathroom break during which she works on bathroom skills and self-help skills. The last component is her individual program, specifically working on the goals created for her by the school and in the IEP. That portion of the day can be anything from self-help skills, to gross or fine motor skills, to cognitive skills. goes through the conductive education program, out of her wheelchair, while still working on her communication. At other times, is in a specific seating position so that her body is in good alignment, well-balanced, and with good posture. In that position, she can manipulate things for the academics. She can also access any kind of communication she may need. then has a lunch break and another bathroom break. (Tr. 160-161, 172)

In the afternoon, . participates in the academic and communication portion of the day. is a combination of described by Ms. as well as a specific program designed to allow students who have physical and medical issues to access communication because they are non-verbal. Teachers, speech therapists, occupational therapists, and physical therapists determine the most accessible means for a student to use a . The student starts out with a paper form of and then moves into a digital form. They are taught to use the system with An can be . The involves a person standing in front of the student holding up (Tr. 152-153, 160-161)

’s consists of twenty-minute periods, during which completes different activities. Those activities include literacy, math, science, and social studies. The lessons are differentiated for each student. (Tr. 161) . is out of the wheelchair for her entire school day. During the afternoon Communican program, . is in supportive seating. (Tr. 172)

Ms. . has made progress towards her goals in the 2012-2013 school year. Physically, . has developed much better sitting posture, which enables her to be more focused on the academic program. She can manipulate more successfully. . has also made progress with her ability to communicate. She can more independently express a desire to communicate with a person. She has increased her ability to participate during academics through the use of the communication system. She answers teacher questions more independently and with less prompting. She is responding with fuller sentences and more precise answers. She has also increased the amount of writing she does in class by using the communication system. (Tr. 165-166)

Ms. believes that is an appropriate program for the 2012-2013 school year. The program addresses ’s physical needs which require a lot of attention to her body positioning. She needs to be out of her chair and moved around as much as possible, and as independently as she can. Academically, the school has spent a lot of time finding the most effective way for . to communicate for academics. The system she uses has brought her success and allows her to access a very specific curriculum that is tailored to the school, and then to her, individually . is making great progress. (Tr. 167- 168)

The school’s tuition is $75,000 for the twelve-month 2012-2013 school year. The tuition includes the conductive education and . The tuition does not include related services. . receives the related services of , as well as and physical therapy, at the school from providers funded by the DOE through their related services authorization system. (Tr. 168) does not currently provide mandated related services as part of its program. (Tr. 174)

.’s mother. Ms. described her daughter as “a very joyful, loving, sociable, highly motivated little girl with very . So she is not . She’s not . She’s not able to , but she really .” can vocalize emotions like excitement and distress with shrieks, laughter, fussing, and crying. If she’s bored, her tongue protrudes, she drools more, and her eyes have a blank expression. . communicates her wants and needs primarily with her eyes. She is given choices and the Parents follow her gaze. Ms. . explained the way communication book. She stated that are asked questions, to make choices, and they respond. However, they are unable to ask questions or initiate conversation. This system has allowed her to be an active initiator of conversation with others. The system operates like a menu with an opening page of prompts and categories. For example, the choices include: “I feel,” “I think,” “I want to tell you,” “I want to ask you,” “I want to start a sentence,” and “I want to spell.” Once she makes a selection, the system takes I.D. to another set of choices. For example, if she initially selects “I feel,” the next page would show a set a feelings from which she can start to build the feeling expression. From her use of the system, Ms. . has discovered . wants to ask a lot of questions. . is very empowered by the system. (Tr. 188-192)

Ms. explained that since , she can only be out of her wheelchair with great support and facilitation. . is more alert and lively from her work out of the wheelchair. She is more present in her environment when she . (Tr. 192) I.D. does not have any skills related to activities of daily living. She is unable to care for herself in any way and requires maximal support. Her ability to help with certain tasks has increased over time. (Tr. 192-193)

Ms. . described .’s ed ucational history. Through the DOE’s Committee on Preschool Special Education, . attended pre-school, at ages three and four, , which is associated with the NYU Rehabilitation Center. At . enrolled at Standing Tall and has continued in that program. Ms. described the education program as a “whole-child” approach, incorporating skills associated with , and - together providing the child with a greater degree of independence. Ms. . believes that the philosophy of the school is to recognize the children’s abilities and to challenge them with difficult tasks. Where many people would look at the children and assume they are unable to learn and have no future, the school assumes that they have abilities and can achieve success. (Tr. 193-196)

Ms. described the CSE meeting held on May 9, 2012. Prior to the meeting, the CSE asked the Parents to submit an updated medical form. The Parents submitted the form. If there were other documents requested, the Parents complied with those requests as well. The Parents also complied with any requests for consent to conduct evaluations. (Tr. 204)

Ms. . described the discussion held at the CSE meeting regarding class size. The CSE was prepared to recommend a special education classroom for Ms. . expressed that the class size was too large because of her . Ms. stated that the CSE’s response was that it was the best class size in the special education world. Ms. . stated that there was a discussion at the meeting about .’s need to be out during the school day. The CSE’s position was that they were recommending a program and not a particular school, and that they could not address that issue. Ms. has expressed, at every meeting, the importance of for a good portion of the day. Ms. absolutely never agreed to the program recommendation made by the CSE. (Tr. 205-207)

Ms. . testified that the Parents received a Final Notice of Recommendation on June 18, 2012. Ms. immediately called the school, since the school year was ending, to schedule a visit. Both the parent coordinator Ms. . spoke with, and the individual who gave Ms. a tour, told Ms. . they believed there was a mistake in the placement because the school was extremely far from their . The parent coordinator did not even want Ms. . to visit for that reason. However, Ms. explained that it was the school offered, and that she would visit. During her visit, Ms. observed classrooms with a and students, and a mix of . Ms. observed a class using a smartboard and a pointer to make a choice on the smartboard. However, the students in wheelchairs had movements made for them by a staff member. Ms. . asked the tour guide how much time, if any, children in wheelchairs spend out . He responded by saying, “You know, gosh, with some of these kids with tubes hanging out of them, you know, we wouldn’t be comfortable taking them out.” Since . inferred that she would not be taken out of at all in that setting. The cafeteria was very large, with seating for at least 100 students. Ms. . was told that general education and special education students have lunch together, with the special education students clustered on one side. Ms. . did not observe any adaptations that would allow a student in a to approach the table. Ms. . was certain that would be unable to eat in the cafeteria with that many people, and with the volume of the room. Ms. . did not believe that the placement was appropriate for The only educational and communication program Ms. observed was a passive “labeling program,” with no opportunity for initiation of communication. . would have no opportunity to . In addition, Ms. was told that there was a “chronic shortage” of therapists at the school. Ms. . sent a letter to the CSE following her visit. She did not receive a response. (Tr. 207-212)

Ms. explained that she has two conferences during the school year with a very in-depth look at ’s performance overall. There are also monthly telephone calls to address any performance and other issues since the previous monthly telephone call. (Tr. 201)

Ms. . stated that . has done well with the small class size. She enjoys having peers to connect to, but she would withdraw if placed in a larger group with too many children or too much distraction. Ms. . has observed at birthday parties or family gatherings that large groups are very difficult for . She and does not look around or make contact with others. (Tr. 198)

Ms. has observed progress ’s deficit areas . . has progressed in expressing herself. Ms. described . as “coming out of herself.” The school has set an expectation for that she will be part of the world in a meaningful way. Ms. . has observed this in school and at home. For example, used to be a bored, passive bystander, while her siblings engaged in parallel play while Ms. . made dinner. She now expects to be engaged and participating in her environment. Her ability to stay seated in a position somewhere close to the middle has improved. She has shown an increased desire to use her hands, although it is very hard for . Ms. . has also ’s desire to express her social side. When she is out of on a mat, for example, she will to the next person. She wants to be with people more; “ is an incredibly lonely place to be.” Academically, Ms. . sees trying to produce more language, express longer thoughts, and initiate more communication. She is more consistent using letters to spell her name. (Tr. 199-200) Ms. . believes that . is appropriately placed . (Tr. 202)

Ms. . testified that the Parents have paid the full tuition of $75,000. Ms. signed the enrollment contract for the twelve-month 2012-2013 school year on April 17, 2012. (Exhibit H; Tr. 203) Although prior to the CSE meeting, she signed it then because Standing Tall requires the contract to be executed at that time. The contract specified April 17, 2012, as the deadline for submitting the signed contract. (Tr. 203, 224)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a Free Appropriate Public Education (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "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" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The DOE has not met its burden to establish that it has offered a FAPE to . for the 2012-2013 school year.

The testimony of Mr. was of little substantive value. He simply confirmed the information on the face of the IEP. He repeatedly stated that he had no independent recollection of the CSE meeting. Any errors, clerical or otherwise, omissions, ambiguities, and contradictions evident in the IEP document, were not clarified or remedied in any meaningful way by Mr. . Although the content of the IEP was clearly taken from the reports and based on the opinions of those working directly the CSE’s recommendation was in direct contravention to the recommendations of those individuals. Of particular note, was Mr. ’s statement that there is no smaller class size available on the DOE’s continuum offering as much staff support as the class. He specifically stated that he would have considered a program with a smaller class size, along with a higher level of paraprofessional support, if one existed within the DOE. (Tr.

41) Despite all of the information provided, and the recommendations of those directly involved in educating ., the CSE recommended a program with twice as many students as . was currently being educated with in the classroom. The CSE made its decision without any rationale to support a doubled class size for .

Under the title “Evaluation Results” on the first page of the IEP (Exhibit 13-1), the CSE listed the reports that were reviewed and relied upon by the CSE. It is unclear why this information was contained in this section. Nevertheless, the reports noted are: the Evaluation (Exhibit 10), Dr. evaluation (Exhibit 8), the Physical Therapy Progress Report (Exhibit 11), the Speech Therapy Progress Report (Exhibit 9), and the Progress Report (Exhibit 7).

The DOE did not offer any evaluations, testimony, or other evidence to discredit the cited reports and professional opinions, or the recommendations contained therein. Mr. confirmed that he “absolutely” credited those individuals presently working with I.D. enough to incorporate their opinions, assessments, and goals into the IEP. (Tr. 87) The DOE’s deference to those opinions and recommendations is demonstrated by the verbatim inclusion of the content of those documents in the IEP. The providers who created the reports made their findings and recommendations based on the services being provided at the time, and being recommended going forward. However, the DOE did not accept the providers’ recommendations that . continue in the for the 2012-2013 school year. Therefore, the DOE should have been able to establish that the goals copied from those reports and typed into the IEP would be suitable and possible to work towards in the program recommended by the CSE. The CSE did not include participants who work in a DOE program such as that recommended, who could have assessed whether the goals were appropriate or could be implemented in such a program. All that was known by the CSE at the time is that the goals could be implemented and were appropriate in the .

As further evidence of the CSE’s failure to consider whether the goals copied from the reports could be implemented and worked towards in the recommended program, it is worth noting the deficiencies in the CSE’s ability to even “cut and paste” those goals into the IEP. The Progress Report relied upon by the CSE contained a section titled “New Annual Goals and Short-Term Objectives.” (Exhibit 9-7) Those goals and objectives are also attached at the end of the report in the same form as they would appear in an IEP. Therefore, the goals and objectives, as created by the speech therapy providers, are contained in two places in the report reviewed by the CSE. Although the CSE was not creating its own goals and objectives, it failed to accurately copy those provided when drafting the IEP. Each of the goals in the report contains three short-term objectives. The short-term objectives reflect a decrease, over time, of the support provided in completing the given task. Therefore, . would be working towards more independence in achieving the skill.

Under the first goal, the first short-term objective provided for the task to be supported by “verbal prompts and modeling.” The second short-term objective provided for the same task to be supported by “intermittent verbal prompts.” The third short-term objective provided for the same task to be unsupported and performed “independently.” Therefore, once . mastered the skill with the assistance of “verbal prompts and modeling,” she would then begin to work on the skill with only “intermittent verbal prompts.” Once the skill was mastered with that lower level of support, she would begin to work in the skill “independently.” Ultimately, if all short-term objectives were mastered, would be deemed to have achieved the annual goal. When the same goal is reviewed in the IEP, it is clear that the short-term objectives were not copied correctly. (Exhibit 13, p. 7-8) All three short-term objectives under the same goal in the IEP provide for “verbal prompts and modeling.” Therefore, the exact same short-term objective is repeated three times.

The CSE was not attentive enough to recognize or notice the difference between the three objectives and, instead, copied the same one three times. In effect, there is only one short-term objective instead of the three intended. There is no provision for an increase in the level of independence in performing the task. The CSE made the same critical error with the second annual goal and its corresponding three short-term objectives. They are identical without any change in the support provided. Although this may appear to be an innocuous oversight or insubstantial clerical error, it is not. The goals must be evaluated as written on the face of the IEP, and these goals do not contain short-term objectives that would allow for meaningful progress towards the achievement of the goal. Careful consideration was not given to the preparation of the goals. A negative inference can be drawn regarding the consideration, or lack thereof, given to the preparation of the IEP as a whole.

current recommended that she continue to receive five individual sixty-minute sessions of therapy in the 2012-2013 school year. The CSE recommended three individual sixty-minute sessions and two group sessions of sixty-minutes. There is no definition of the size of the group mandated for the group session. There was no explanation offered concerning the basis for the CSE’s decision to disregard the recommendation of the current and substitute for their judgment. Likewise, there was no explanation offered for the manner in which the goals established provided in five individual sessions, would be employed in a service model of three individual sessions and two group sessions.

The CSE noted in the IEP that, “I.D. has made significant progress with augmentative and alternative communication methods taught in her school.” Under “Management Needs,” the CSE reiterated that, “A variety of Augmentative Alternative Communication modes are used throughout her school day. . uses both a variety of unaided and aided communication modes to express herself.” The “Management Needs” section is defined as the section in which to identify the resources which “are needed to address needs.” (Emphasis added) (Exhibit 13, p. 1) Therefore, the CSE recognized and acknowledged the necessity of these devices to the education of I.D. Mr. even recognized that “to use this different program as it was presently being used would be important going forward.” (Tr. 18)

The Progress Report contains numerous references to assistive technology devices. These include the “ device that is currently owned by the school,” and the “no tech” “manual communication book.” (Exhibit 9, p. 2, 5) All of the annual goals and short-term objectives created by the working with . refer specifically to the “eye gaze communication system.” As noted above, the CSE copied the goals and objectives verbatim, except for the errors added by the CSE, and incorporated them into the IEP. Therefore, the goals and objectives in the IEP refer to the use of the “ system.” (Exhibit 13, p. 7-9) Under the section of the IEP titled “Assistive Technology Devices and/or Services,” the CSE included “ , picture communication, and software.” (Exhibit 13, p.

12) The phrase “ ” has no meaning, on its face, other than which is something she generates and is not an . This description does not reflect the “ system” described in the goals and objectives. In addition, the IEP states that ” will be delivered as a “group service.” (Exhibit 13, p. 12) This makes no sense. In addition, it is unclear what is meant by “picture communication” delivered as a “group service,” or “software” provided as a “group service.” On its face, this section of the IEP, which would be critical to a child like I.D., who is highly reliant upon assistive technology, is meaningless. Mr. ’s explanation that ” refers to an assistive technology device, “picture communication” refers to “schemes of pictures to use in the place of words,” and that “software” refers to “many of the iPads that are used now – a computer type technology…” did not sufficiently explain the vague and undefined items listed on the face of the IEP. Mr. acknowledged that the phrase “picture communication” does not recommend a specific system. Similarly, the word “software” was given no further explanation in the IEP. (Tr. 22, 49-50)

Mr. was asked if the CSE recommended or considered an electronic voice output device for . He responded by explaining that the CSE did not specify such a device because they reviewed the speech therapy progress report and “that type of suggestion would originate in that type of a source.” When asked to read a portion of the report, Mr. acknowledged that the report did, in fact, recommend an electronic voice output device and that the CSE failed to recommend one . (Tr. 50)

The DOE cited R.E. v. New York City Department of Educ., 694 F.3d 167 (2d Cir. 2012) to explain its decision not to present testimony or other evidence regarding the offered school placement. Another aspect of the R.E. decision was the Court’s holding not to adopt a rigid “four corners rule” prohibiting testimony beyond the face of the IEP and allowing for testimony to explain or justify services listed in the IEP. Although there could not be testimony materially altering or amending or modifying the IEP, the DOE could have possibly presented testimony to explain the services listed. The only testimony presented by the DOE was that of Mr. . As noted above, he had no independent recollection of the CSE meeting or the creation of the IEP. Therefore, his testimony did not help to explain the services listed.

One of the challenges to the IEP raised by the Parents in their request for an impartial hearing was the failure to include the “critical need . to be out of her wheelchair,” under the section addressing .’s physical management needs. (Exhibit 1, p.

6) As noted by the Parents, “Without this, she is a prisoner in her chair and simply not available for learning.” The CSE did not address this need in any way in the IEP. The CSE listed progress report as one of the documents reviewed. In that report, it is clearly states, as part of the Conductive Education program, that, “The daily routine at is created to consist of the specific task series (lying program, oral motor program, standing and walking program, manipulation program and individual program). These in combination with cognitive, self-help, social and emotional and complex communication and AAC strategies are put together algorhythmically to promote all around development.” (Exhibit 7, p. 2) The report further explains how the Conductive Education program addresses , separate and apart from physical therapy, by working with her in positions that require her to be out of her wheelchair. (Exhibit 7, p. 7) It is clear that the CSE knew, or should have known, the extent to . was out of her wheelchair during her academic program. There was no evidence presented to establish that the recommended program would, to any extent, address .’s demonstrated need to be out of her wheelchair during the school day.

When Mr. was asked to explain the reason that the IEP does not address I.D.’s need to be out , he responded by noting that “[T]here’s nothing in the IEP that indicates that she should be maintained in throughout the day.” He further reiterated that, although the IEP does not refer to . being “out” , it does not refer to her being “in” her wheelchair either. This reasoning is illogical and offensive. These statements appear to have been made with a clear disregard and profound . The IEP clearly states is “ ” and “needs a .” The IEP does not have to state to be in the for her to be in the wheelchair. This is her given starting point. She arrives to school Conversely, the IEP should have affirmatively addressed her need to be “out” of the wheelchair. (Tr. 53-55) Ms. . credibly testified that there was a discussion of ’s need to be out of at the CSE meeting.

The DOE made a conscious decision not to present any testimony or other evidence regarding the placement site, or the school, offered in the Final Notice of Recommendation. (Exhibit 15) The explanation for the DOE’s decision was based on the Parents’ rejection of the program recommended at the CSE meeting, before even receiving notification of such placement offer. (Exhibit G) The DOE argues that the Parents made their decision to reject the program irrespective of the ultimate placement site, and, therefore, the appropriateness of the placement location itself is not an issue. The DOE relies upon R.E. v. New York City Department of Educ., 694 F.3d 167 (2d Cir. 2012, to support its decision. However, the Parents’ letter dated June 15, 2012, expressed their intention to place I.D. at Standing Tall and seek funding for tuition “if the district does not cure the procedural and substantive errors in the development of her IEP and offer her an appropriate program.” [Emphasis in original] The Parents further stated that, although they do not believe the program would be appropriate, they “will visit any placement recommended by the DOE on or before the first day of the 12-month school year to gauge its appropriateness for I.D.” The Parents’ letter does not signify where the “window closes,” as characterized by the DOE in its closing argument. (Tr. 239) The Parents put the DOE on notice of their intention “if” the DOE did not modify the IEP or offer an appropriate placement. This was not a done deal. The DOE had not yet sent the Parents the final IEP document or a Final Notice of Recommendation as of that date, although over a month had passed since the CSE meeting. Also, only two weeks remained until the start of the twelve-month school year. The Parents’ letter provided the DOE with an opportunity to correct any deficiencies prior to the beginning of the school year. The DOE’s argument that the Parents’ actions rendered the placement offer irrelevant to this proceeding is rejected.

As noted, the DOE made the decision not to present any testimony regarding the placement site or what the recommended program would be like at that school. Therefore, the DOE did not establish whether it would be appropriate . However, the Parents provided unrebutted testimony regarding the visit to the school, their observations, and the representations made by the school’s personnel. When Ms. called to make an appointment to visit the school, she was discouraged from doing so. The coordinator told her that the placement offer had to be a mistake based on the school’s distance from ’s home. During her tour, Ms. . observed the program’s teaching methods and limitations which would not have allowed . to make meaningful progress. Ms. was specifically told that the school was restricted in its ability to take out of them” out of their wheelchairs. Ms. also observed the lunchroom and knew that would be too distracted by the size of the room and the number of students to be able to eat lunch. Ms. knew that as a with , . would not be provided the support she requires.

The failure of the IEP to address .’s demonstrated need to have time out of her wheelchair during the school day, and her need for specific both of which give critical support to and substantive deficiencies in the IEP and the inappropriateness of the recommended program, result in a finding that the DOE failed to offer a FAPE for the 2012-2013 school year. The IEP and recommended program were not reasonably calculated to enable to receive educational benefits. The placement, or site, offered . was also inappropriate for her. Based on the above, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parents’ case for the 2012-2013 school year.

The Parent has the burden of establishing the appropriateness of the program they have provided to M.R. (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29, Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363) A parent’s failure to select a program approved by the state, in favor of an unapproved option, is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])

Dr. has direct knowledge of and the program she participates in as noted in her testimony. In her written report, reviewed by the CSE, she states that . has made “measurable progress” in “structured, intensive program of physical training that is integrated with academic, activities throughout the day to provide the student with an individualized program.” (Exhibit 8, p. 1) She further stated that the school’s “individualized curriculum” “meets ’s physical, communication, academic and socialemotional needs. In this intensive program, . has made progress towards her academic, communication, goals.” (Exhibit 8, p. 4) Dr. recommended that continue to attend among her additional recommendations.

Ms. explained .’s need for a smaller class size with intensive one-to-one support at all times . is appropriately grouped based on her and her ability to work on a higher grade level academically. She is also socially appropriate for the group. Ms. credibly explained the manner in which the conductive education and components of the program are individually tailored to .’s unique special education needs and the goals that have been designed for her. She also described the strong connection between .’s work in both areas and her ability to make educational progress.

Ms. confirmed ’s progress in all areas during the 2012-2013 school year and the bases for her opinion that is an appropriate placement.

I find that the ’s special education needs for the 2012-2013 school year. It has been persuasively established by Dr. that the program is appropriate. The program is reasonably calculated to allow . to make meaningful progress and to address her individual needs. In fact, has made meaningful progress during the 2012-2013 school year. Therefore, the Parents have prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.

Clearly, there are no equitable considerations that would prevent an order in favor of the Parents. The record clearly and fully reflects the Parents’ cooperation throughout the process. They participated in the CSE meeting, provided requested documentation in advance of the meeting, consented to the DOE’s request to conduct assessments (although none were conducted), visited the offered placement site although extremely far from their home, and repeatedly sent written correspondence to the DOE, without receiving a response. (Exhibits 1, 5, and G)

ORDER

The DOE shall reimburse the Parents for the tuition paid to for the twelvemonth 2012-2013 school year upon proof of payment. Dated: May 8, 2013

AMY LYNNE ITZLA, ESQ.

Impartial Hearing Officer

ALI:gc

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

Parents’ Exhibits

Exhibit Date Description Pages

A undated Curriculum Statement from

15

B undated Presentation 20

C undated Family Handbook 25

D undated Description 3

E undated Conductive Education Description 3

F undated Description of Programs 3

G 6/15/12 Notice of Unilateral Placement 2

H 4/17/12 Enrollment Contract, 2012-2013 5

I undated Schedule Class 1, 2012-2013 10

J August 2012 Progress Report 10

DOE’s Exhibits

Exhibit Date Description Pages

1 7/25/12 Impartial Hearing Request 8

2 7/27/12 Due Process Response 3

3 12/19/12 Special Education Information System

Events for 3

4 4/24/12 DOE Request for Reevaluation 1

5 4.27.12 DOE Assessment Planning Letter 1

6 4/30/12 Notice of IEP Meeting 4

7 January 2012 Progress Report 11

8 1/31/12 Neurodevelopmental Pediatrics Report 4

9 3/15/12 Related Services Student Progress

Report- 12

10 3/31/12 The Shield Institute Report of

Comprehensive Evaluation 6

11 5/3/12 Related Services Student Progress Report-

Physical Therapy 1

12 5/4/12 DOE Request for Physical Examination 5

13 5/9/12 IEP 17

14 5/9/12 CCP9 Minutes of CSE Meeting 1

15 6/15/12 Final Notice of Recommendation 1