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 9, 2013

January 28, 3013

March 19, 2013

April 4, 2013

April 18, 2013

Actual Record Closed Date: May 20, 2013

Hearing Officer: Michael S. Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 4, 2012

Of Counsel to — Student

DOE Representative, CSE (Via Telephone) — DOE

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

Advocate — Student

Social Worker, CSE- — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 28, 2013

Advocate — Student

Mother — Student

DR., District Representative — DOE

DR., School Psychologist for CSE (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 19, 2013

Attorney — Student

Parents

Parents

Pathologist (Via Telephone) — Student

Occupational Therapist (Via Telephone) — Student

CSE Chairperson's Designee — DOE

Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 4, 2013

Attorney

Parents

Director (Via Telephone), Lead Teacher, (Via Telephone) — Parents

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 18, 2013

Attorney — Student

Parents

Parents

CSE Representative — DOE

By Complaint dated August 20, 2012, the matter of . came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.

The Complaint alleges that the District failed to provide an appropriate program for the Student for 2012-2013. The Complaint alleges that the team failed to administer appropriate assessments for the Student, that the team failed to consider the reports of the Student’s therapists and teachers, that the team did not provide the Student with a program that would , that the team failed to recommend parent training, that the team predetermined the result of the review, that the goals in the IEP were computer generated and not related to the Student’s current functioning. The Complaint also alleges that the parent was told that the placement, , could not meet the Student’s mandate of , that the placement did not describe how the related service providers would implement the goals, that the placement did not provide an appropriate functional grouping for the Student, that the placement did not employ , that the staff at the placement were not trained in methods of behavior intervention.

On September 28, 2012, a prehearing conference was held. There was no appearance by either side. (IHO Exh. 1)

A hearing date was scheduled for October 30, 2012. The parents sought an adjournment because of witness availability because of Hurricane Sandy. There was no objection from the District. This application was granted.

Upon the application of the parents on the 5th of November, 2012, the decision date in this matter was ordered to be reset to December 4, 2013. The parties were previously provided notice through email and are being provided with this notice through email. The reason was witness availability and difficulties occasioned by Hurricane Sandy. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii) and determined that this is an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. There was no objection from the District. The parties were provided with written notice. (IHO Exh. 2)

Upon the application of the parents on the 3rd of December, 2012, the decision date in this matter was ordered to be reset to January 2, 2013. The parties were provided written notice. The reason was witness availability and difficulties occasioned by Hurricane Sandy. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii) and determined that this was an appropriate matter for extension. There was no showing of any financial or other consequences to the parties or to the student’s educational wellbeing. There was no showing of any prejudice to the District. There was no objection from the District. (IHO Exh. 3)

A hearing date was scheduled for December 10, 2012. The parents again sought an adjournment because of witness availability. There was no objection by the District. This application was granted.

Upon the application of the parents on the 2nd of January, 2013, the decision date in this matter was ordered to be reset to February 1, 2013. The parties were provided with written notice. The reason was witness availability. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii) and determined that this is an appropriate matter for extension. There was no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. There was no objection from the District. (IHO Exh. 4)

The matter came to hearing on January 9, 2013. Another date was set for January 23, 2013. The parents sought an adjournment because they were going out of the country on that date. There was no objection from the District. This adjournment was granted.

The hearing continued on January 28, 2013. Upon the application of the parent on the 28th of January, 2013, the decision date in this matter was ordered to be reset to February 27, 2013. The parties were provided with written notice. The reason was witness availability and extensive testimony and issues. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii) and determined that this was an appropriate matter for extension. There was no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. There was no objection from the District. (IHO Exh. 5) A hearing date scheduled for February 14, 2013 was adjourned because of the sudden, serious illness of the parents’ advocate. Another hearing date scheduled for March 7, 2013 was also adjourned because of the sudden, serious illness of the parents’ advocate.

Upon the application of the parents on the 27th of February, 2013, the decision date in this matter was ordered to be reset to March 27, 2013. The parties were provided with written notice. The reason was witness availability, extensive testimony and issues, and the sudden, serious illness of the parent's advocate. There was no suggestion before me that this parent could proceed on her own in this matter. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii) and determined that this is an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. There was no objection from the District. (IHO Exh. 6)

Substituted counsel was found for the parents, and the hearing resumed on March 19, 2013.

Upon the application of the District on the 24th of March, 2013, the decision date in this matter was ordered to be reset to April 25, 2013. The parties were provided with written notice. The reason was witness availability, extensive testimony and issues, and the sudden, serious illness of the parent's advocate. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii) and determined that this was an appropriate matter for extension. There was no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. There was no objection from the District. (IHO Exh. 7)

The hearing continued on April 4, 2013, and April 18, 2013. The District presented its closing statement in oral form on April 18, 2013. The parents sought an opportunity to submit a brief. There was no objection from the District.

Upon the application of the District on the 25th of April. 2013, the decision date in this matter was ordered to be reset to May 25, 2013. The parties were provided with written notice. The reason was the need for the parents to submit a brief and for the IHO to review transcripts in connection to the decision. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. There was no objection from the District. (IHO Exh. 8)

Upon the application of the District on the 9th of May. 2013, the decision date in this matter was ordered to be reset to June 9, 2013. The parties were provided with written notice. The reason was the need for the parent to have extra time to submit a brief and for the IHO to review transcripts in connection to the decision. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii) and determined that this is an appropriate matter for extension. There was no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. There was no objection from the District. (IHO Exh. 9)

The parents submitted their brief on on May 20, 2013. (IHO Exh. 10)

FINDINGS OF FACT

The Student is now a who is classified as eligible for services as a student with . (Exh. 1) She has a and has great , requiring a great deal of prompting. (Exh. 1) She can approximate a a great deal of prompting and can inconsistently. (Exh. 1)

Skills generally fall in range. (Exh. 1)

She engages , “non functional” object manipulation, . (Exh. 1; 159) She uses an . (Exh. 1; 198) She has . (Exh. 1) When denied the ability to “restore” the environment to her liking, without appropriate intervention, the student

One function of the Student’s . (159) A change in behavior will also occur because of a change in environment. (162) She will , taking items and using them for the wrong purpose. (159) She will engage in such and will require a space where there are not many triggers for . (164)

To be able to progress academically, the Student with a professional throughout the day. (197-198)

A of the Student conducted on February 29, 2012 found that the Student could not be tested on the WISC-IV or the WIAT-III. (Exh. 5) The evaluation indicated that the Student showed little interest in the people around her. (Exh. 5) She demonstrated . (Exh. 5)

An observation conducted on December 18, 2012 showed that the Student was receiving discrete trial training, where the Student was being rewarded with verbal praise, recreational activity of her choice, physical activity. (Exh. 2) She was given some “hand over hand” instruction during this observation. (Exh. 2) She communicated through an electronic device. (Exh. 2) The Student was benefiting from this instruction. (Exh. 2)

The Committee on Special Education Committee on Special Education (CSE) met on March 22, 2012 to review the Student’s program. (32-33) The Student’s special education teacher was at the review. (33) The team reviewed a psychological evaluation. (34-37) The team reviewed progress reports and an occupational therapy progress report from the school. (39-40) The parents and her advocate indicated that the Student needed more support in the classroom, in particular a teacher to student ratio. (55)

The IEP dated March 22, 2012 provides for classroom with management needs of constant supervision and prompting to focus on tasks, positive reinforcement to improve participation and completion of tasks and to increase appropriate behaviors. (Exh. 1) It provides for repetition of concepts taught. The IEP indicates that the Student needs a BIP. (Exh. 1) No assistive technology device was recommended. (61)

Goals in the IEP relate to expressive language skills, receptive language skills, skills, sensory needs, visual perceptual motor skills, functional shoulder, arm and hand control, the ability to follow directions, improving knowledge of basic concepts, preacademic skills, social and play skills, adaptive living skills. (Exh. 1)

The IEP recommends a crisis management paraprofessional, therapy 5x60, occupational therapy 5x45. (Exh. 1)

A final notice of recommendation dated June 6, 2012 recommended that the Student attend . (Exh. 7)

The parents visited the placement and found that the students “were not learning” in the classroom. (215-216)

On June 14, 2012, the parents sent the District a letter rejecting the proposed placement. (Exh. D) The parents indicated that the Student requires teaching throughout the day in order to learn and retain information. (Exh. D) The letter also indicates that the placement did not use visuals, non-verbal students did not have communication devices with them, teachers were not engaged with the students, staff was not knowledgeable about behavior intervention plans, that Randy would be functioning on a much lower level than the other students. (Exh. D)

The parents signed a tuition agreement on July 2, 2012 for . (Exh. F)

At Reach for the Stars, the Student is provided with Applied Behavioral Analysis (ABA) instruction in a twelve month school year. (150-151) The classroom has one lead teacher, three other ABA therapists, and a speech therapist. (196) Children receive therapy daily for 60 minutes. (151) Students also receive occupational therapy daily.

(151) The program provides parent training and counseling. (154-155) There is circle time, an art group, a cooking group, instructional lunch, music group therapy. (197)

The Student has four students in her class. (157) The Student has met some of the goals in the IEP. (158) They have seen improvement in her ability to attend. (159) The school has put in a variety of plans to address her behaviors. (156-165) To address her , the school will give her space but will not give her objects to “spin or look at.”

(163) She has made improvement in regard to being independent, following receptive functions, being present in the classroom, navigating the , following group instructions, sitting and attending. (201-203)

CONCLUSIONS OF LAW

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

Parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012) If the parents reject an IEP, as they have here, the District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

On the first criterion, the District should show that it offered parents a free appropriate public education (FAPE). A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the Individuals with Disabilities Education Act (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. Board of Education v. Rowley, 458 U.S. 176, 206-207 (1982).

While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).

The record indicates that this Student requires at least some ABA teaching in school. The witnesses from the school indicated as much on the record, and to the CSE during the IEP meeting. There is nothing in the record from anyone who knows this Student to credibly rebut the assertions of the school witnesses. The observation conducted by the District does not weigh in on this issue. On the contrary, a read of the observation suggests that the Student is benefitting from her current environment with discrete trial teaching. The psychoeducational assessment by the District also does not weigh in on this issue. The assessment mostly indicates that the Student was not testable on the WISC-IV or the WIAT-III, and provides no little support to establish that the Student can benefit from the recommended program. C.L. and S.B. v. New York City Dep’t of Educ., 60 IDELR 138 (S.D.N.Y. 2013)(where private school staff credibly testified that student required instruction, and such testimony was not rebutted by the District observation, parent awarded tuition reimbursement); see also M.H. v. New York City Dep’t of Educ., 685 F.3d 217 (2d Cir. 2012)(parent awarded tuition reimbursement where IEP failed to account for a report that Student required instruction).

It is noted that the District did provide the Student with a paraprofessional. Caselaw indicates that where a Student’s issues are in nature, a behavior management paraprofessional is appropriate and a teacher is unnecessary. See, e,g,, Application of a Child with a Disability, Appeal No. 12-034 (reports from school indicated that the Student was making progress in group instruction, was “working well” within the small group, and teacher support was being faded). However, the District has not established that a paraprofessional can take the place of a teacher for this Student. There is no evidence or testimony here to suggest that the Student can learn skills in a small group, and the District did not indicate that the paraprofessional would have any particular training in working with students so that they could teach the student skills themselves.

Moreover, the record indicates that the Student has problems, including particularly . In New York State, where a student's behavior that impedes his or her learning or that of others, the CSE must conduct a Funtional Behavioral Assessment (FBA) and consider developing a Behavior Intervention Plan (BIP). 8 NYCRR 200.4(b)(1)(v); 8 NYCRR Sect. 200.22(a), (b)). An FBA is defined in State regulations as "the process of determining why a student that and how the student's to the environment" and "include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it." 8 NYCRR Sect. 200.1(r)). According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the student's history of presenting problem behaviors. 8 NYCRR Sect. 200.22(a)(2). An FBA must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a BIP (if required) may be developed "that addresses antecedent behaviors,reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement." 8 NYCRR Sect. 200.22(a)(3)). A BIP must include a baseline measure of the problem behavior, intervention strategies, and a schedule to measure the effectiveness of the interventions. 8 N.Y.C.R.R. Sect. 200.22(b)(4).

However, there is nothing in the record to suggest that the District conducted an FBA or a BIP for this Student -- even though the IEP itself recommends a BIP. See, e.g., R.E., 694 F.3d at 194 (in R.K. portion of decision, Court found FAPE violation in case involving student with autism where no FBA/BIP); Lauren P. V. Wissahickon Sch. Dist., 48 IDELR 99 (E.D. Pa. 2007), rev’d on other grounds, 51 IDELR 206 (3d Cir. 2009)(student had difficulty concentrating, completing assignments).

It is noted that the caselaw supports the proposition that an FBA is not always required where a student has behavioral issues. A.C. ex rel M.C. v. Bd. of Educ., 553 F. 3d 165 (2d Cir. 2009). However, the lack of an FBA is only ameliorated by a IEP that has “numerous specific strategies” to address . The court or hearing officer must take “particular care” to make sure that the IEP adequately addresses the in this instance. R.E., 694 F.3d at 190-194. Here, while the IEP does make some mention of the Student’s behaviors, the IEP has only one sentence of management needs. This generic sentence indicates only that the Student requires constant supervision and prompting, and repetition of concepts. The IEP goals relating to the management paraprofessional are also generic and do not suggest any particular approach to address the Student’s behavioral issues. In particular, the IEP fails to provide any information about or strategies to address the student’s . In this connection, it is important to note that the CSE did not have any teacher progress reports from the school before it when developing the Student’s program. While the team did have related services reports, a teacher progress report would have been more helpful in determining the appropriate behavioral interventions for the Student.

Given the above, I find that the parents prevail on the first criterion.

On the second criterion, the test for a parents’ placement is “not perfection.” M.S. ex rel M.S. v. Yonkers Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the Student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

The record shows that the Student has special education needs in terms of individualized instruction, behavioral interventions, a BIP, a Dynavox communication device. The record shows that the school provides the Student with all these services. The school employs individualized ABA instruction, continually revised behavioral intervention plans, a Dynavox communication device. The well-staffed classroom has one lead teacher, three other ABA therapists, and a speech therapist. Children receive therapy daily for 60 minutes. Students also receive daily. The program provides parent training and counseling. There is a variety of instruction, including circle time, an art group, a cooking group, instructional lunch, music group therapy. The Student has only four students in her class.

The Student has also met some of her goals in IEP. The school has seen improvement in her ability to attend. She has made improvement in regard to being independent, following receptive functions, being present in the classroom, navigating the Dynavox, following group instructions. The instructors at the school appeared credible to this IHO. There is no testimony to the contrary from the District. The parents prevail on the second criterion.

On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). . With respect to a parents’ obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. Sects. 1412(a)(10)(C)(iii)(I), 1412(a)(10)(C)(iv)(IV). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary.

The record reveals that the parents considered the District placement, provided the District with appropriate notice of the unilateral placement, and was generally open minded about school placement for the 2012-2013 school year. The record also shows that the parents fully participated in the process and complied with all District requests. The parents prevail on the third criterion is awarded reimbursement/payment for the 2012-2013 school year. Dated: June 4, 2013

MICHAEL S. LAZAN, ESQ.

Impartial Hearing Officer

MSL: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

PARENT

A Complaint dated 8/20/12, 5 pgs. B Hearing Officer Lorraine Gross ‘Decision dated 4/18/12, 23 pgs. C Undated School Description, 4 pp. D 10-Day Notice Letter and Fax Confirmation, 6/14/12, 2 pp. E Final Notice and Fax Confirmation, 6/6/12, 2 pp. F Enrollment Contract, 7/2/12 3, pp. G Affidavit from School, 9/27/12, 15 171 pg. H School Attendance Document, 1 pg. I Class Profile, 1 pg. J Educational Progress Report, 6/1/12, 6 pp. K Evaluation, 6/22/12, 11 pp. L Therapy Report and Goals, 6/22/12, 5 pp. M Progress Report and Test Scores, 5/12, 5 pp. N IEP Goals, 5/12, 4 pp. O IEP, 12-13, 39 pp. P 12-13- -, 1 pg. Q Assessment of Basic Language and Learning Skills, 3 pp. R Completed Items Report, 11/20/12, 19 pp. S Incomplete Items Report, 11/20/12, 51 pp. T 12-13 Samples of Skills, Acquisition Programs and Behaviors, 43 pp. U IEP, 3/22/12, 13 pp. V Proof of Payment, 7/19/12, 1 pg. W Provisional Charter Document, 1 pg. X Communication Between School and Home Y Check Representing Final Payment by Parents to

DEPARTMENT OF EDUCATION

1 IEP, 3/22/12, 17 pp. 13 14 2 Classroom Observation, 12/18/12, 2 pp. 3 Progress Report, 12/15/12, 2 pp. 4 Progress Report, 12/3/12, 2 pp. 5 Evaluation, 3/15/12, 4 pp. 6 Final Notice of Deferred Placement, 3/22/12, 1 pg. 7 Final Notice, 6/2/12, 1 pg.

IMPARTIAL HEARING OFFICER

1 PH summary, 1 page 2 Timelines Order, 1 page 3 Timelines Order, 1 page 4 Timelines Order, 1 page 5 Timelines Order, 1 page 6 Timelines Order, 1 page 7 Timelines Order, 1 page 8 Timelines Order, 1 page 9 Timelines Order, 1 page 10 Brief of Parents, 5/20/13, 13 pages