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: September 25, 2012

October 19, 2012

December 14, 2012

January 30, 2013

Actual Record Closed Date: February 25, 2013

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 25 ,

2012

Attorney — Student

Legal Assistant — Student

Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 19, 2012

Attorney (Via Telephone) — Student

Attorney (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 14,

2012, ESQ., Attorney, Parent/Mother, Parent/Father, Legal Assistant, Program Director,

ESQ., Attorney, — DOE

School Social Worker, Committee — DOE

On Special Education Nin (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 30, 2013

Attorney — Student

Parents

Parents

Legal Assistant — Student

Teacher — Student

Speech Therapist — Student

Student

DOE Attorney — DOE

DOE Attorney — DOE

INTRODUCTION

On September 12, 2012, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f).

On September 25, 2012, a pendency hearing was conducted.

Order on Pendency was issued September 27, 2012 and is attached hereto as Exhibit I.

A pre-hearing conference was conducted on October 19, 2012.

A hearing on the merits was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence. Post hearing submissions were not requested, nor submitted.

A motion to extend the compliance date, an additional thirty days, was made on October 31, 2012 by Parent, due to availability of witnesses relative to Hurricane Sandy. Motion was granted and compliance date was extended to December 24, 2012.

A motion to extend the compliance date, an additional thirty days, was made on December 17, 2012 by Parent, due to extensive testimony and /issues. Motion was granted and compliance date was extended to January 23, 2013.

A motion to extend the compliance date, an additional thirty days, was made on January 22, 2013 by Parent, due to availability of witnesses. Motion was granted and compliance date was extended to February 22, 2013.

A motion to extend the compliance date, an additional seventeen days, was made on January 30, 2013 by Department of Education (DOE) and Parent, due to availability of transcript and to allow time to submit written closing briefs. Motion was granted and compliance date was extended to March 11, 2013.

BACKGROUND

This matter was instituted by the impartial hearing request dated September 10, 2012 alleging that the Department of Education (DOE) failed to provide a Free and Appropriate Public Education (FAPE), for the student, for the 2012-2013 school year, on procedural as well as substantive grounds. Parent seeks relief, including, reimbursement or direct funding of tuition at the , for the 2012-2013 school year. (Ex A)

Student has been attending since 2006. DOE reimbursed parent for tuition for the 2006-2007 school year as ordered by an Impartial Hearing Officer (IHO) at the time. Since then the parties have settled each year while the student continued to attend . (Ex A 3, B & II 2)

Most recent Individualized Education Program (IEP), of February 14, 2012, contains a classification , recommended a 12 month District program with a student to teacher ratio, and recommended related services of Therapy (5X45X1), Therapy (5X45X1), and (2X45X1). (Ex 1)

THE PARENT’S POSITION

( ) presented the parent’s case, as outlined in hearing request and closing brief. (Ex A & III)

Parent alleges that the DOE improperly changed the student’s placement, the 2012-2013 IEP and placement fail to provide a free and appropriate public education, the school is an appropriate placement, and equities favor the parent. Parent seeks tuition reimbursement or direct funding of tuition for the 2012-2013 school year. (Ex A, T 116)

Parent also seeks relief including: evaluations in any areas in which it is determined the DOE did not appropriately evaluate the student; compensatory or additional educational services to be determined by the hearing officer to compensate for the DOE failure to provide a FAPE; a Nickerson Letter; appropriate round trip transportation. (Ex A-18)

PARENT WITNESS

( ) testified as a program director of , and reviewed her professional Background. (T 123-125)

Developmental Individual Difference Relationship Based Model (DIR) is the methodology used at . (T 131)

DIR has six basic levels: regulation, shared attention, back and forth communication, shared social problem solving, symbolic thinking, and building logical bridges between ideas. (T 134)

is a school for “…students but also children not Currently about 80% of our students are diagnosed on the and the others present with disorders that present with those same core . We work with students from the aged of four through 21, and we utilize the DIR methodology.” (TY 135-136)

Staff at the school include teachers, teacher assistants, travel trainer/job coaches, occupational therapists, physical therapists, speech and language pathologists, music therapists, psychologists, social workers, adaptive phys ed teacher, art teacher, nurse, and administrative staff. (T 136)

reviewed her role and hiring practices at . (T 137-138)

Professional development is conducted within the school. (T 138-139)

is located on five floors of a Manhattan building and includes 15 classrooms, two sensory gyms, an amplification system in place in each classroom, and a ballast in place to reduce fluorescent light flickering and buzzing. (T 148-152)

identified the school curriculum and noted that a transition is in process to follow common core standards. (T 152-153, Ex Q)

is provided for family members as part of parent training. (T 154-155)

Transition program is provided to students fifteen and older. (T 155 -156)

The student has attended since 2006. (T 157)

Student is in the transitions program and presently sees him about once a week in his classroom, and four or five times a week outside the classroom. (T 158159)

described the student as of the beginning of the school year, July 2012.

Student:…presents as a student in his , particularly in . He has a very strong visual memory, but his . So, he spends a lot of his time working -- or then, I guess, spent a lot of his time working to sort of control his environment as much as he can, so that he doesn't become overwhelmed. So, he is --he is very .” (T 161-162)

are addressed through . (T 163-166)

believes the interventions have been successful “…from July until now, we have seen him make progress, in being able to regulate his sensory system independently, and as well as taking many more risks in moving into environments that in the past would have overwhelmed him.” (T 167)

The student is more verbal where he feels comfortable, such as at home. (T 167-168)

In the beginning of the school year the student communicate in response to something rather that spontaneously. (T 169)

and a team approach address . (T 170) Student has had an increase in his ability to initiate with adults and peers. (T 171)

Student had difficulty transitioning. Visual, verbal support and preparation were given to the student. (T 171-172)

Student transition has improved with less support. (T 173)

Student is in a class with six other students and three adults, presented as two transition facilitators and a job coach/travel trainer. (T 180 & 224)

Students are grouped considering age, developmental level, verbal ability, sensory processing, and academics. (T 182)

The student leaves the school for two forms of internship community service. (T 183-184)

This has been successful and has increase student self esteem. (T 185)

communicates with the parents who are involved in every parent support group. (T 187-189)

identified the contract, and twelve month tuition as $97,700.00. (T 189, Ex O)

Parents are responsible for open balance of over $90,000.00, and if unsuccessful at hearing the school would issue a payment plan. (T 190)

Parents are responsible for tuition payment and the school would enforce the tuition contract. (T 190-191)

states that the IEP gives a general overview of some of the student’s skills, but is not clear as to the student’s academic achievements, strengths or functional needs. (T 198, Ex 1)

Social development contained in the IEP is not descriptive of the student ion that it is not a good current level of strengths. (T 200-201, Ex 1)

IEP does not contain enough information to move forward and create a plan for the student. (T 201)

Physical development lack information regarding the student’s sensory processing. (T 202, Ex 1-2)

notes that if sensory processing is not addressed the “…you are going to lose sight of him. He needs that addressed, understood and effectively intervened with, so that he can be an active participant in his world.” (T 202-203)

IEP goals are not appropriate, do not necessarily address student needs and do not really make sense. (T 205, Ex 1)

basis this on their being only one sensory goal and the short term goals do not go into student needs. (T 205)

OT goals are vague. (T 206, Ex 1-4)

The vagueness concerns as she states: “…I don't feel like I have a good sense of what I’m working on, why I'm working on it, and where is he. What is my baseline? So, if he can do this, this and this, then I want to do this, this and this. But if he can't do that, I don't want to go ahead without making sure the foundation skills are there. And with this, without having a knowledge of (the student) I don't know that you could implement this IEP.” (T 208)

Some goals refer to DIR methodology, by including terms such as circles of communication. (T 209, Ex 1-6)

IEP is not sufficient to create a plan for the student. “Because it doesn't give enough information about his current level of functioning, the ways he can be successful, and how you can move him ahead without having prior knowledge of him.” (T 210)

visited the proposed student placement in June of 2012. (T 210-211, Ex 5)

This visit was not related to the current student. (T 247)

did not feel the placement was appropriate noting: “…the way that they move throughout the day…the size of the school…the size of the Lunchroom…the way that would be an auditory nightmare for him. And as well as the . is done in a room that is not really an room, and there is one swing for all the kids…They did not seem to have a strong sensory program in place to be able to meet his needs.” (T 212)

Student receives mandated sessions weekly three times weekly a well as other sessions run by the . (T 221)

Student receives . (T 222)

Witness was asked the student’s grade level in December 2011. General Math student grade ranges from three to five depending on the skill. (T 228-229)

General reading ranges from sixth to eighth grade if read to and second to third as a reader. (T 230-231)

did not create a functional behavior assessment of behavior intervention plan (BIP) for the student for the 2012-2013 school year. (T 248-249)

Behaviors are addressed at without a formal BIP. This may be reduced a written plan. (T 249-251)

Student does exhibit behaviors described as “…Mostly reticence, mostly pulling back, being on the periphery, not joining in, not showing all that he is capable of, because his sensory system is so overloaded.” (T 252)

PARENT WITNESS

( ) testified as to his professional and educational background. (T 257262)

is currently a teacher of math and science . His class has 7 students ages 15 through 19. (T 262-263)

described the transition program . (T 263-264)

All of his students are verbal and aware of one another. (T 265)

Regarding student , some are . (T 266)

To address these sensitivities each student has a profile, situations are varied so the student feels comfortable, students will be slowly integrated to where they feel comfortable, visual schedules are used, and their day is as predictable as possible. . (T 266-268)

described classroom floor time, as the model used to interact with students: “…it's primarily meeting the students where they are at developmentally.” (T 270)

reviewed general student academics . is aware of what his students are doing in pother academic areas where he is not the direct teacher. (T 271-272)

works regularly with school staff including the pathologist, , psychologist and social worker. (T 273)

Students do internships and travel training, which is done at time in the classroom. (T 273-274)

described the role of the teacher assistants: “.They tend to go with the students to the academic blocks. They also are doing Floortime throughout the day with the students. They are also facilitating group activities…many of the students need individualized attention, so if I plan a lesson, I will implement it, but they are also helping to implement the activity.” (T 276)

The student has been in ’s class for the past two years, since 2011. (T 279)

During the 2011 school year spoke to the student’s related service providers, teacher assistants and other individuals working with the student on a daily basis. (T 280)

At the time of July 2012 the student: ’…would prefer to be in a quiet environment. He thrives in a language based rich environment, which he is in right now. His biggest needs were to help him integrate into the community from my opinion and feel more comfortable and confident. I mean from what I can see now, he seems much more confident.” (T 282)

Student had primarily talked about his needs and wants, and now is more expressive about other people, being more comfortable and confident in an activity like cooking. (T 283)

To facilitate this progress: “We've really surrounded the class with things that (the student) enjoys such as cooking activities, where he's comfortable and confident. We've also kept the classroom as quiet as we could, provided him with breaks when needed, supported him through times when he needed extra support, and allowed him to process what's going on around him.” (T 283-284)

Regarding processing skills the student tended to become overloaded and would tend to retreat. (T 284) To support processing skills an individual schedule is filled out each day. (T 284)

In July of 2012 the student needed a lot of staff support to initiate with peers and had to be redirected quite a bit to the task that was going on. Attention at the time was 10 to 15 minutes. Presently it is 20 to 30 minutes. (T 284-285)

In July of 2012 the student was very and . (T 286)

Student support was described by : “We tend to narrate what's going on before-like what do you think you're going to see outside? What do you think is going on outside? (Student)…might say, you know, there's cars, and if there's a construction site, we'll say, yeah, there's a construction site, go giving him words for the feelings that he might be feeling. I just want to get back to the internship, one more thing. Last year he was doing an internship at the library. This year the reason he's not doing the library internship, I found that it became too simplistic for him. He's definitely become so comfortable now that he is able to do more advanced internships where there is more asked of him.” (T 287)

The student has an internship at Meal on Wheels to get him comfortable with the community where he can stay out for longer periods of time believes this has been successful and student can stay out in the community for longer periods of time. (T 288)

Academically in July of 2012 the student was working on point identification, addition, subtraction and measurement via cooking. (T 289-290)

At the time of July 2012 the student literacy skills are described as emerging. Comprehension was pretty strong. He understands what is being read to him and can answer short questions. (T 291)

In July of 2012 the student and would need to take breaks. (T 294-295)

Student has learned to request a break when he . (T 295-296)

Student has thrived at the school and is mentoring little kids in a cooking activity and helping a peer in the class change paper towels and hand sanitizer throughout the school. (T 297)

Academically the student has made progress this year by being able to correctly fill in the blanks in reading, has mastered single digit addition, has done much better with subtraction, and he engages in activities for a longer period of time. (T 298-299)

attended the IEP meeting of February 14, 2012 over the phone. (T 299)

did not have any documents in front of him for the meeting. (T 300)

did not agree with the recommendation of the IEP and told the team of his disagreement. (T 300-301,. Ex 1.7)

told the team he believed the ratio of the 2011-2012 year was appropriate. (T 301)

never taught at a class. believed the class was not a relationship or DIR model. (T 303-304) DIR has been used for the student for the past seven years and has worked. (T 304 305)

No other model has been used for the student. JR has no way of knowing if another methodology would work for the student. (T 305)

Currently teaches the student science. (T 305)

feels comfortable working in other areas with the student so that he may review something other teachers have worked on. (T 307)

Student has not had any in his class. (T 307)

Student changes rooms for different classes and there are up to two classes in the hall when transitions take place. (T 308)

Reading skills in the class generally range for . (T 308-310)

In July of 2012 the student was reading at about a level, and comprehending at a level. (T 310)

Students in general ranged grade, with the student being at a beginning level in July of 2012. (T 311)

Student is able to put pictures together, and is helped formulating words for the pictures, creating a story. (T 314-315)

Student was not able to do this in July 2012. (T 315)

In July 2012 the student needed help , making change with money, initiating interaction with his peers and safety awareness in the community. (T 316-319)

Student displays certain behaviors . (T 320)

Student did not require a BIP for the 2011-2012 school year, and does not presently have a BIP. (T 324-325)

At the time of the February 14, 2012 IEP meeting the student needed verbal reminders, had a written schedule, needed breaks throughout the day and at times required . (T 325-326)

IEP contains goals the student was working on in February of 2012. (T 329332, Ex 1-3 through 1-5)

considers the goals appropriate for the student. (T 337)

PARENT WITNESS

) described her professional and educational background and testified as a certified in DIR Floortime. . (T 343-346)

“DIR stands for Developmental Individual Relationships, and our school is based on this philosophy, this method, and it looks at each child where they are developmentally. It looks at their individual profile, so how is their sensory system working, what their differences are, and the relationships, so forming relationships with the children and tailor interactions to their individual needs.” (T 344)

has been the student’s speech therapist since 2010. (T 350)

collaborates with other staff including the student’s teacher. (T 351)

treats the student three times weekly. One is individual and two are in a group. (T 352)

believes her therapies to be sufficient for the student: “I believe they are sufficient…I am also spending time with him when he is with his occupational therapist when we are sharing that space when she'll see him also. I'm also consistently collaborating with his teacher and his occupational therapist, other people who work with him, so we are all aware of each other's goals. They are aware of my speech goals, and

I'm able to support them in implementing those types of things throughout the day so while he's not directly working with me, other people on his team are carrying over what I am doing throughout the day.” (T 353)

was responsible for section of the Interdisciplinary Report, which includes goals. (T 354-355, Ex I 9-14)

believes the student is appropriately placed at . “He has formed relationships here because of our methodology… that relationships are important and we're taking…individual differences into account, he is in an environment where he feels comfortable and where we're honoring his needs and tailoring interactions to support him.

He has made progress because of that level of support, and because we're acknowledging and supporting his individual differences. He has made progress in his ability to initiate with--to be part of a group with peers, to initiate with peers, express his ideas more.” (T 367)

Goals include circles of communication which involve a back and forth interaction. (T 369, Ex 1-5 & 1-6)

PARENT WITNESS

( ) testified as a licensed ( ), certified in DIR Floortime, employed by since October 2010. (T 379-380)

has provided therapy to the student since October 2010. (T 382)

OT was provided three times weekly for thirty minute sessions for the 20112012 and continues for the current school year. (T 382)

Student is seen twice in a group and once individually each week. (T 382)

Student is seen individually due to “…significant needs in his ability to process sensory information and work on activities of daily living and increasing his independence, so he still needs that one-to-one individual attention.” (T 383)

described the group therapy. Student “…is part of the Transitions Program, so one of the main goals of the Transitions Program is to foster peer relationships and increase their independence and autonomy in a variety of contexts therefore preparing them for life after the …and we can have a successful interaction almost all of the time that I see him. However working with peers, it's more challenging because he has to pick up on different types of social cues and work off of their sensory processing difficulties as well. So there is more information for him to take in and try and make sense of.” (T 383-384)

believes she is providing an appropriate amount of OT for the student. (T 384)

believes additional therapy is not needed as reflected in the IEP, due to the team approach provided at which enables the goal and interventions to be worked on throughout the day. (T 384-385)

collaborates with other staff so lessons can be carried over in the classroom. (T 386)

to his learning. Student is “… ; so , very . It's challenging for him to move his body into different positions because of his vestibular system; it's hard for him to process all of . So when an and attend to the classroom activities, so things such as taking a break or giving him something that might be regulating, listening to calm music prior to or during the classroom activity helps him better focus and attend.“ (T 387-388)

goals are intended to be worked on individually and in a group setting. (T 389)

PARENT WITNESS

) testified as the student’s mother.

Her son is and she agrees with the current . (T 391)

testified to her son’s early development and concerns regarding . (T 391392)

acted to obtain . (T 393)

Her son is in his seventh year at . (T 395)

was at the IEP meeting of February 14, 2013. (T 398)

did not agree with the Public special education school was recommendation. (T 400)

advised the individual she believed was running the meeting “..that I am remaining hopeful that there will be a public program that will be appropriate for my son. Every year, I get a recommendation and every year, I look at it. And I said to Mr. , this is an extremely . I'm trying to limit stress, and if you can show me a program that is appropriate for my son, I will be skipping out of there. Up until now, the only appropriate program that has been available to my son is the . If there's something else, I will look at it and hope for the best.” (T 401-402)

spoke at the meeting about what she felt was an appropriate placement at has tackled…(student’s)…unique needs, meaning that he has extreme ; so visual could be describing me.” (T 403)

described how she sees addressing the needs of her son. “ has utilized different things to help…From the , using therapeutic listening to help his brain process sounds, to , whether it's physical or sports; they start the day with yoga. The help augment his understanding of everything in his world.” (T 403-404)

“From the relationship model, the understanding that just because he's autistic, which on the outside because he's so generally quiet, looks like he might not want to be with another human being, when in fact he desperately wants to be with another human being. And because of their understanding and the level of training these people get, they have a window into how my son actually does work that they can reach him and pull him out and help him be the person he really wants to be, rather than what looks like on the surface.” (T 404)

described her son’s condition as it relates to ).

About four years ago her son had strep three times in one winter. After his last round of antibiotics received a call from her son’s teacher that he's step out of the room smoothly, retreating more, and is more anxious. (T 407)

A blood test confirmed which does not go away once diagnosed. (T 407)

raised these concerns at the IEP that still affects his learning, sometimes appearing as . (T 408-409)

does not believe her concerns relating were reflected on the IEP properly.

(T 410)

Her son has not , though it is still a concern. (T 412)

At the IEP meeting raised a need for her son to have a climate controlled bus to reduce . (T 413)

IEP listed parent concern as appropriate placement for the 2012-2013 school year. (Ex 1-11)

states that she was also concerned about “…limited time traveling in a controlled-climate bus, controlled-climate environmental school, physical size of the building, types of students he was going to work with, safety of the building.“ (T 415)

also raised a concern for an FM system embedded in a classroom so her son would not remove the unit. (T 415-416)

did not feel it mattered what she said at the IEP meeting. (T 418)

asked the IEP team how they would address a transition from to a potentially appropriate DOE public school placement and was told “…the school will take care of that.” (T 419)

does not feel the measurable post secondary goals are specific enough. (T 421, Ex 1-2)

What was meant by maximum adult support was not made clear to her. (T 421-422, Ex 1-2)

wanted the IEP to address self advocacy skills. (T 422)

When left the meeting she was told it had to get typed up and she would receive it in the mail. When it was not received she called the DOE and picked it up in August. (T 423-424)

did not receive a copy of the IEP prior to picking it up. (T 424)

identified letter of June 15, 2012, which indicated her son was not offered an appropriate placement for the upcoming school year. No response was received. (T 425, Ex G)

If an appropriate placement was offered her son would have went to such a placement. (T 426)

identified letter of June 25, 2012, whereby she raised concerns over her child’s IEP meeting and proposed placement. (T 427-429, Ex F)

No response was received regarding this letter. (T 431)

wanted to visit the proposed placement but could not receive an appointment until July 10, 2012. (T 431-432)

would have taken her son out , even in July, if an appropriate DOE placement was available. (T 432-433)

identified a letter, dated July 17, 2012, describing her concerns with the proposed DOE placement. No response was received regarding this letter. (T 434 -435, Ex E)

would have attended another IEP meeting, if offered. (T 435)

identified letter to the DOE dated August 16, 2012 which received no response. (T 436, Ex D)

again confirmed that she would accept an appropriate DOE placement for her son. (T 437)

identified the enrollment contract signed June 01, 2012. states that she signed on that date to ensure a back up placement in case the DOE did not make an appropriate placement offer. (T 438, Ex O)

did not just wait for the DOE offer of placement upon past inappropriate offers. (T 439)

GB does not have the funds to make any , besides the initial $5,000.00. (T 441)

It is her understanding that if tuition is not reimbursed by DOE she will have to pay the balance if she wants her son to continue . (T 441-442)

identified tax returns which reflect over $170,000.00 in income. (T 443-444, Ex S)

seeks reimbursement of the $5,000.00 and direct payment of the balance of tuition. Though there is an income of $170,000.00 the family expenses do not leav e funds for payment of the tuition and reimbursement. Rent is $2,400.00 monthly.

Family does take vacations. (T 444-447)

states that there are no other assets available upon which to pay the tuition directly. (T 445-446)

feels her son is making progress and it remains an appropriate placement.

(T 447)

“I would have to say because of the interventions they have put in place every step of the way for this child; for example, during bout, . He was not available for doesn't even describe him then. And because of their expertise, their abilities and their compassion, and their understanding of him, they moved him to a place where now he can learn.” (T 447)

notes progress in that her son was able to attend sleep away camp and voted and understood the election. (T 447-448)

described information she obtained during her visit to the proposed placement. Teachers use the TEACHH method, students are grouped by disability and chronological age range of two or three years, testing is done from September to December to better understand the students and then students are grouped according to functioning levels. (T 452-453)

described some of her son’s including , in being able to visually scan. (T 461)

received a copy of the notes at the IEP meeting. (T 463, Ex 4)

DEPARTMENT OF EDUCATION POSITION

( ), attorney for the DOE, presented the DOE case, seeking dismissal of the parent’s request for private school funding. (T 34)

In his opening statement states that an IEP meeting was held on February 14, 2012 for the student. Student was classified . A twelve month, program was recommended for the 2012-2013 school year, related services were recommended, goals and objectives were created, student needs were addressed, and the Co mmittee on Special Education (CSE) relied on a variety of reports and assessments, classroom teacher and the parents. (T 32-33, Ex 1,2 & 3)

Placement offered provided a FAPE for the 2012-2013 school year as indicated on Final Notice of Recommendation, dated June 21, 2012. (T 33-34, Ex 5)

DOE WITNESS

) reviewed her professional and educational background, and testified as a CSE 9 social worker, having attended the February 14, 2012 IEP meeting. (T 37-38, Ex 1-13)

progress report was reviewed at the meeting. (T 41-42, Ex 2)

Academic achievement was discussed. (T 42)

referred to her minutes of the meeting which indicated major strengths in literacy, more independent math work in addition and subtraction, student uses manipulative and can tell time. (T 43, Ex 4)

Student was working below grade level and IEP reflects a instructional and functional level in reading and math for the student. (T 44-47, Ex 1-10)

Levels were based upon information obtained by the teacher at the meeting which included that the student had strengths in literacy skills, as indicated in the minutes. Level was also based on experience of the DOE special education teacher (Ms. at the meeting of what a second grade student can do. (T 50-52, Ex 4)

states that she relied on Ms. for the current functioning level of the student, but could not recall if it was presented as such at the meeting. (T 52 -53)

progress report was reviewed at the meeting. (T 55, Ex 2)

Goals were reviewed at the meeting but not written up at the meeting. (T 5556 & 80)

does not recall if the instructional level was reviewed at the meeting. (T 5)

Instructional goals were developed when the IEP was written “post meeting”. (T 56)

does not recall a discussion of instructional goals at the meeting. (T 56)

Student community outings were discussed. (T 58)

does not recall a discussion regarding books the student was reading at the time, though information was included in the report. (T 58, Ex 2)

Student social development was discussed and obtained from the teacher. (T 62-63)

Social development was reflected on the IEP as obtained from teacher report. (Ex 1-1 & 2)

reviewed minutes and IEP. (T 66-69)

states that the student needs a 12 month school year so he can have all his activities reviewed and reinforced. (T 69)

recalls the student teacher said the 12 month school year was needed for the student to be consistent. (T 70)

There was no indication that interfered with the student learning. (T 71)

Goals were created by the school teacher and therapists. (T 72) does not recall how the measurable post secondary goals were created. (T 74)

states that every goal was reviewed with the parents and the teacher. (T 75)

The teacher modified some goals. (T 75)

A 12 month District 75, placement was made for the student. (T 79)

This class would offer more adult support in academic and social areas. (T 76)

IEPs are mailed to the parents usually within two or three weeks of the meeting. (T 85-86, & 90)

does not know when the IEP was completed, and does not know when the IEP was mailed out to the parent. (T 93-94)

Student is and would need which may involve leaving the room. (T 110)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and

(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A student is offered a FAPE 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]).

While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student'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 student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, but school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). A school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; ^[8] NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2];

Boards of Education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parent's claim (School Committee of the Town of Burlington v, Department of Education, Massachusetts, 471 U.S. 359 [1985]; Application of a Child with a Disability, Appeal No. 01-052). Further, the fact that the facility selected by the Parent to provide special education services to the Child had not been approved as a school for children with disabilities by the State Education Department of the State of New York is not dispositive. (Florence Co. School District Four v. Carter by Carter, 510 U.S. 7 [1993]).

The parent bears the burden of proof concerning the appropriateness of their unilateral placement. A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]). 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. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]; see also Educ. Law § 4404[1][c]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010]).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-

65).

Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that 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. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373

F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167

F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-079; Application of the Dep’t of Educ., Appeal No. 07-032).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement 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 offered the student a FAPE (Burlington, 471 U.S. at 370-71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).

PARENT RECEIPT OF IEP

A school district must ensure that the parents are provided a copy of their child’s IEP at no cost. 34 CFR § 300.322(f); 8 NYCRR § 200.4(e)(3)(iv). No statutory provision or regulation requires that an IEP be produced at the time parents demand…instead, school districts must only ensure that a child's IEP is in effect by the beginning of the school year and that the parents are provided a copy. Cerra v. Pawling Cent. School Dist., 427 F.3d 186 (2nd Cir., 2005). “In order for the system to function properly, parents must have sufficient information about the IEP to make an informed decision as to its adequacy prior to making a placement decision.” RE v. New York City Dept. of Educ. 694 F.3d at 186 (2012). Parents may get relief under the IDEA only if the evidence proves that the delayed delivery of the IEP “impeded the student’s right to a FAPE, significantly impeded the parents’ meaningful participation in the CSE process, or caused a deprivation of educational benefit. Cerra, 427 at 194 (2012).

Parents raise an issue in that a copy of the IEP was not received and parent had to take action to obtain a copy from the CSE. (T 423-434) DOE concedes that IEP, if received, was received by the parent after the first day of the 2012-2013 school year. (Ex II-5)

DOE contends this does not deny FAPE as parent received the minutes of the meeting which contained the recommended program for the 2012-2013 school year and contained related services, classification, goals, transition plan and considered programs. (Ex II-5)

DOE contends that the parent was familiar with the recommended program due to past DOE offerings and parent visits to similar programs. (Ex II-6)

DOE also asserts that the parent failed to mention the alleged lack of IEP receipt in any of their correspondences to the CSE. (Ex II-6, D, E, F & G)

I find that providing the parent with the minutes is not sufficient as to meet the burden of providing an actual copy of the IEP. The minutes do not contain all of the information contained in the IEP, and contain incorrect information regarding the recommended related services of therapy. Therefore, the parent lacked sufficient information about the IEP to make an informed decision as to its adequacy prior to making a placement decision. I note that it is not clear if the DOE had a complete copy of the IEP upon which to base their proposed placement recommendation, as the DOE could not present evidence confirming a date on which the IEP was actually completed. (T 55-56, 80, 85-86, 90, 93-94)

While the minutes indicate the intended appropriate delivery of services to be in part individually and in part in group, this is not reflected in the IEP. The IEP only contains individual therapy services for . Minutes also include several abbreviations and references to goals that are not in the minutes. (Ex 4-1, 1-7 & 1-8)

New York law provides a presumption of mailing and receipt by the addressee where there is proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829 (1978); News Syndicate Co. v. Gatti Paper Stock Corp., 256 N.Y. 211, 214 (1931)(stating that the presumption is founded on the probability that the officers of the government will do their duty and the usual course of business). As long as there is adequate testimony by one with personal knowledge of the regular course of business, it is not necessary to solicit testimony from the actual employee in charge of the mailing Nassau Ins. Co., 46 N.Y.2d at 829-30; In re Lumbermens Mutual Casualty Co. v. Collins, 135 A.D.2d 373, 374 (1st Dep't 1987); Gardam & Son v. Batterson, 198 N.Y. 175, 178-79 (1910)(stating that "the rule upon the subject requires… in the absence of any evidence as to its being deposited with the post office authorities, that the proof shall establish the existence of a course of business, or of office practice, according to which it naturally would have been done"); State Review Officer Appeal No. 12-052.

DOE contends that the witness MF had sufficient knowledge of DOE mailing practices to meet any presumption of mailing burden regarding the IEP. However, the witness indicated that she sometimes mails out the IEP and that in the instance case she did not know when the IEP was created and available to be mailed, nor did she know when the mailing actually took place, if at all. No actual policy was established relative to the case at hand. (T 85-86, & 90, 93-94)

The parent rebutted, to some degree, the presumption of mailing by her actions of actually going to pick up a copy of the IEP.

If the DOE had responded to any of the parents correspondence they may also have realized the IEP had not been received by the parent.

DOE had the opportunity to provide any cover letter or correspondence that may have been sent with an IEP, and it failed to do so.

Failure to provide the parent with an IEP impacts the ability of the parent to evaluate the appropriateness of the IEP or any recommended placement.

I find the DOE failed to provide the parent with an copy of the IEP in a timely and appropriate manner. This failure affects the parents ability to take part in the creation of the IEP itself and any resulting program offer. Without the IEP in hand the ability of the parent to agree or inquire about any proposed placement is greatly hindered.

DOE PROPOSED IEP AND FAPE

Parties appeared and took part in the meeting, each to a varying degree, and the Interdisciplinary Transition Program Report of Progress Update dated December 2011 from the was reviewed and included in creating the IEP of 02/14/2012. (Ex & 2)

DOE contends that since the child is not currently suffering from actual seizures and the condition was treated with antibiotics, they do not need to be addressed in the IEP, despite parent concerns. (Ex 2-7, T 112)

DOE contends that the goals are appropriate since they were taken in large part from the report, and seen as appropriate by the student’s teacher, Mr. Rich. (T 337, Ex II 8)

Regarding the DOE contends the recommendations, though incorrectly reflected in the IEP, does not result in a denial of FAPE. Goals and minutes of the meeting reflect the intention of the CSE to include group therapy for the student. It is evident that the CSE intended to recommend both therapies on an individual and group basis. (T 85, Ex 4 & II-9)

DOE contends that academic functional levels reflected on the IEP are accurate and were taken from report and confirmed as accurate by Mr. . (T 309-314, Ex II-9 & 10)

Parent contends that the IEP in question was not base upon sufficient evaluative data and the only information reviewed at the CSE meeting was an unidentified IEP and report. Parent contends that this resulted in the report as the sole source of any data used to create the IEP. As this report is not an assessment tool, it is not sufficient as the sole basis for creation of the IEP (II 5, T 42 & 82)

Parent contends the IEP fails to include any meaningful academic achievement levels. Parent witness pointed to perceived flaws in the IEP and its failure to be used appropriately for instruction. And DOE witness was unclear as to how or when portions of the IEP were actually created. (Ex II 6-7, T 198-203, 229-230, 56-57)

Parent contends the IEP does not include any baseline levels in non academic areas and instead includes general statements regarding improvements which “doesn’t give enough information about his current level of functioning, the ways he can be successful, and how you can move him ahead without having prior knowledge of him.”

(Ex II 7, T 210)

Parent contends that the IEP is deficient in that it fails to describe the student’s sensory processing disorder nor any management strategies or techniques noting: “overall functioning is greatly influenced and impacted by significant .” (T 161-163, 202-203, 383, Ex N-3 & Ex II-8)

Parent also contends that the failure to conduct an FBA and create a BIP relates to the failure of the DOE to address the of the student. Since the IEP contained so little information regarding the of the student that would interfere , the DOE was required to prepare an FBA and a BIP. This is particularly necessary since the DOE was proposing a change in placement for the student , where he has been since 2006. (Ex 9-10)

Parent contends the failure of the IEP to include meaningful information regarding student medical needs and management implications also resulted in a denial of

FAPE. (Ex 10-11)

Parent contends goals are inappropriate due to a failure to include any benchmarks for beginning instruction, lack meaningful information as to how they should be measured, and lack information on when they should be considered to be achieved.

(Ex II-12, T 205-208)

Parent contends the IEP failed to include necessary transitional support services or parent training. (Ex II 16-17)

In examining the IEP and evidence presented I make the following findings.

The academic achievement, functional performance and learning characteristics and academic characteristics are insufficient and inappropriate. No grade level is reflected on the IEP nor are any noted items specific enough to relate to the needs of this particular student.

For example, “He has demonstrated an ability to read and write words associated with preferred objects or people.” This statement is vague and essentially meaningless without additional information such as a grade level relative to a skill such as comprehension. (Ex 1-1)

I agree with the parent witness testimony which stated the IEP does not contain enough information to move forward and create a plan for the student. (T 201)

Management needs are unclear and do not address the needs of the student. IEP states “visual and verbal cues; direction and refocusing; use of written schedule; sensory input and breaks.” (Ex 1-2)

This information is too vague to be properly utilized to serve the student’s needs. What is meant by sensory input and breaks is not clear.

Testimony shows that sensory issues are a primary need of the student that needs to be addressed. Witness notes that if sensory processing is not addressed the “…you are going to lose sight of him. He needs that addressed, understood and effectively intervened with, so that he can be an active participant in his world.” (T 202203)

IEP indicates the student is sensitive to but does not address this issue. (Ex 1-2)

Testimony examines the students sensitivity in more detail and the manner is which this issue is addressed. classrooms have an amplification system in place in each classroom, and a ballast in place to reduce fluorescent light flickering and buzzing. also raised a concern for an FM system embedded in a classroom so her son would not remove the unit. (T 415-416, T 148-152)

The also detailed concerns related to learning. Student is “… to certain types of ; so , very . It's challenging for him to move his body into different positions because of his vestibular system; it's hard for him to process all of this sensory information. So when an environment is very loud, it's hard…to maintain his regulation and attend to the classroom activities, so things such as taking a break or giving him something that might be regulating, listening to calm music prior to or during the classroom activity helps him .“ (T 387-388)

The IEP contains measurable postsecondary goals. One goal reads that the student will “…be employed with maximum support.” How this would meet their unique needs of the student and prepare him for further education, employment, and independent living is not clear. Logically, one would expect the goal to be for as little support as is necessary. does not recall how the measurable post secondary goals were created. (T 74, Ex 1-2)

Independent living skills call for maximum adult support. Why this statement is contained in the IEP and how it relates to the student is not clear. (Ex 1-3)

Transition needs are vague and too general to be applied to the particular student. Testimony includes additional clarification regarding the transition needs of the student, employment, and career skills that were left out of the IEP. The IEP fails to address or include information relative to the student regarding his internships. (T 287-288)

Coordinated set of transitional activities are vague and general statements that do not include any particular relationship to the student. (Ex 1-9)

DOE failed to utilize its own Vocational Interview which contained several important pieces of information that should have been used in formulating portions of the IEP. This included parent wanting student to be employed, live on his own, parent pointing out often get in the way of his learning, a need to be in a familiar environment, travel independence, shopping independently and other skills. (Ex 3 -2)

Student is not indicated to have a BIP. The information presented at hearing indicates the student does have behavior issues related to his . has addressed this need by allowing him to have breaks when necessary, and keeping the classroom as quiet as possible. This need is not addressed appropriately in the IEP. states there was no indication that with the student learning. Based on the documents and testimony this does not appear to be an accurate a statement as the sensory issues certainly impact on the student behavior. (Ex 1-2, T 71, 283-284)

An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 CFR 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 CFR 300.320[a][3]). Short-term objectives are required for a student who takes New York State alternate assessments (8 NYCRR 200.4[d][2][iv]).

IEP goals rely upon the Report. (Ex 1 & 2)

This report contained information regarding the student’s current program, and was not an evaluation. Within the context of the IEP the goals are unclear. No baseline exists, or clear current functioning level upon which to measure progress. Outside of the report the short term instructional objective that reads: “Student will participate in a literacy lesson for twenty five minutes with staff redirection on 3 of 4 opportunities.” is unclear and vague as it relates to the student. (Ex 1-3)

Copying goals from the report without proper clarification within the IEP renders many of the goals vague and immeasurable.

The IEP contains goals the student was working on in February of 2012 The teacher considered them appropriate at the time, but no evidence was presented to indicate they would be appropriate for the coming school year. The IEP is more of a progress report than an actual plan for the coming school year. (T 329-332, & 337, Ex 1-3 through 1-5) Why the goals were reviewed at the meeting but not written up at the meeting is unclear. (T 55-56 & 80)

In June of 2012 another report was issued updating student goals, from ’s perspective. Some goals were met, some continued and some new goals were created in the report. This is relevant because the report, of December 2011, relied upon by the CSE was not intended to last through the 2012-2013 school year as is evidenced by the updated report of June 2012. (Ex H-4 & H-50)

states that every goal was reviewed with the parents and the teacher. How this was done without having the goals written up at the meeting is unclear. (T 75)

How any item was reviewed with the parent in a meaningful manner is unclear considering the testimony of the DOE. did not know when the IEP was completed, nor when the IEP was mailed out to the parent. (T 93-94)

goals are do not comport with the related service delivery as indicated in the IEP. Goals are intended to be addressed at times in a group therapy session, though no group therapy is recommended. (Ex 1-5 through 1-8)

Instructional and functional levels are indicated for math and reading as . (Ex 110)

states that she relied on Ms. for the current functioning level of the student, but could not recall if it was presented as such at the meeting. How this level was actually arrived at is unclear. (T 52-53)

does not recall if the instructional level was reviewed or discussed at the meeting. (T 55-56)

The IEP contains no medical alerts, though it does mention and . (Ex 1-1 & 1-2)

The IEP fails to address the implication of these disorders as outlined by the parent. The parent indicates that the IEP should contain some additional information and some degree of monitoring of these issues. In the present placement is alerted immediately to any known potential exposure , so that precautions may be taken to avoid a relapse. (Tr. 409). With respect to his , while careful management both at home and at school has led to him not having in several years, he is still considered to be at risk for , and must avoid situations what would . (Tr. 411-414, Ex. N).

IEP also fails to address limited travel time and climate control concerns of parent and as indicated by doctor letter submitted to CSE. (Ex N)

I find the IEP does not afford the student a FAPE as it does not include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability. The IEP indicates a target of maximum adult support rather than progress and independence. (Ex 1-2, 1-3)

Additionally, the IEP deficiencies render the result in an IEP that is not reasonably calculated to enable the student to receive educational benefits.

APPROPRIATENESS OF THE DOE PLACEMENT

DOE contends the placement is appropriate and that any rejection of the proposed placement is based upon speculation regarding class functioning levels, grouping and teacher qualifications. (Ex II-10)

Parent contends the placement is inappropriate due to safety concerns, environmental factors, improper methodology, and instability of the program. (Ex II-2021 & R-1, T 428, 211-12, 405-407, 212-214)

was part of the IEP team which made the 2012-2013 recommendations, which included, a 12 month District , placement was made for the student, with related services. (T 79)

stated that she felt the class would offer more adult support in academic and social areas. Exactly how much and what type of support would be given was not explained, nor was it reflected in the IEP. (T 76)

Parent witnesses testified to their disagreement with the proposed placement. did not feel the placement was appropriate noting: “…the way that they move throughout the day…the size of the school…the size of the Lunchroom…the way that would be an auditory nightmare for him. And as well as the . is done in a room that is not really an room, and there is one swing for all the kids…They did not seem to have a strong sensory program in place to be able to meet his needs.” (T 212)

did not agree with the recommendation of the IEP and told the team of his disagreement. (T 300-301,. Ex 1.7)

told the team he believed the ratio of the 2011-2012 year was appropriate. (T 301)

raised her concerns with the proposed placement which included concerns about “…limited time traveling in a controlled-climate bus, controlled-climate environmental school, physical size of the building, types of students he was going to work with, safety of the building.“ (T 415)

detailed concerns in her correspondences with the DOE which included the following:

On August 16, 2012 notice to DOE that a FAPE had not been offered the student and of continued enrollment for the student. (Ex D)

On July 17, 2012 outlining parent site visit and concerns regarding environment, air conditioning, travel time, seizure risk related to environmental factors, supervision and related services. (Ex E)

On June 25, 2012 parent advised the DOE she was trying to set up a site visit and had basic concerns since she had already visited the proposed site previously, and raising environmental concerns, safety concerns supervision concerns, and concerns with the procedures surrounding the development of the most recent IEP. Letter also requested information regarding the proposed placement such as the physical layout of the school, availability of related services, and how students with sensory processing difficulties are accommodated. (Ex F)

On June 15, 2012 letter to CSE letter notified the DOE of the parent’s position that the recent IEP was procedurally flawed and denied the student a FAPE and that the student would be enrolled again at the . (Ex G)

DOE created a flawed IEP which would not have enabled the student to be provided with a FAPE and did not accurately reflect the results of evaluations to identify the student's needs. Additionally, valid concerns regarding the student’s educational placement, such as transition, sensory and environmental, are not addressed in the IEP or by the proposed placement.

I find the DOE placement recommended for the 2012-2013 school year to be inappropriate for the student .

APPROPRIATENESS OF

DOE contends that the parent failed to establish the appropriateness in that it does not provide educational instruction specially designed to meet the unique needs of a handicapped child, that progress itself is not disparities to show appropriateness, a BIP was not created, and it is too restrictive as there is no opportunity to interact with typically developing peers throughout the day . (Ex II 12-13)

Parent contends that some factors contributing to the appropriateness of include: attendance since 2006, CSE utilization of report for goals, student progress, and parent training. (Ex II-23-25, H, I , J, K & L, T 167-168, 282-283, 296-299, 187-189)

is was detailed throughout witness testimony and reports.

is a school for “…students with which includes children diagnosed on the , but also children not . Currently about 80% of our students are diagnosed on the and the others present with disorders that present with those same core deficits in . We work with students form the aged of four through 21, and we utilize the DIR methodology.” (TY 135-136)

meets the environmental and of the student. is located on five floors of a Manhattan building and includes 15 classrooms, two sensory gyms, an amplification system in place in each classroom, and a ballast in place to reduce fluorescent light flickering and buzzing. are addressed through therapy, a sensory diet, preparation for entering each environment, listening therapy, and narrowing the visual environment. Behaviors are addressed at without a formal BIP. This may be reduced a written plan. (T 148-152, 163-166, 249-251)

teacher described some ways they facilitate student progress: “We've really surrounded the class with things that (the student) enjoys, such as cooking activities, where he's comfortable and confident. We've also kept the classroom as quiet as we could, provided him with breaks when needed, supported him through times when he needed extra support, and allowed him to process what's going on around him.” (T 283-284)

“We tend to narrate what's going on before--like what do you think you're going to see outside? What do you think is going on outside? (Student)…might say, you know, there's cars, and if there's a construction site, we'll say, yeah, there's a construction site, go giving him words for the feelings that he might be feeling. I just want to get back to the internship, one more thing. Last year he was doing an internship at the library. This year the reason he's not doing the library internship, I found that it became too simplistic for him. He's definitely become so comfortable now that he is able to do more advanced internships where there is more asked of him.” (T 287)

Academically the student has made progress this year by being able to correctly fill in the blanks in reading, has mastered single digit addition, has done much better with subtraction, and he engages in activities for a longer period of time.

(T 298-299)

believes the student is appropriately placed at . “ He has formed relationships here because of our methodology… that relationships are important and we're taking…individual differences into account, he is in an environment where he feels comfortable and where we're honoring his needs and tailoring interactions to support him.

He has made progress because of that level of support, and because we're acknowledging and supporting his individual differences. He has made progress in his ability to initiate with--to be part of a group with peers, to initiate with peers, express his ideas more.” (T 367)

described how she sees addressing the needs of her son. “ School has utilized different things to help…From the , using therapeutic listening to help his brain process sounds, to sensory inputs, whether it's physical or sports; they start the day with yoga. The who understands he needs visual aids, or he's a visual and kinesthetic learner to help augment his understanding of everything in his world.” (T 403-404)

I find the program and services selected by the Parent are appropriate.

offered and provides an educational program which meets the student's special education needs and is reasonably calculated to enable the student to receive educational benefits.

EQUITABLE CONSIDERATIONS

DOE contends equities do not favor the parent as the parent never informed the CSE that she did not receive an IEP and the DOE was not offered proper notice. (EX II 14)

Parent contends the equities favor the parent as the parent has cooperated with any DOE request, provided information to the DOE, attended requested meetings, visited the recommended placement and corresponded with the DOE periodically. Additionally, parent made it clear she was open to her child attending an appropriate DOE placement. (Ex II-25 & 26, Ex 1, A through G, T 401-402)

I find equities favor the parent.

Parent communicated with the CSE, attended meeting as requested, met any DOE request, visited the proposed placement, and even facilitated delivery of the IEP by picking it up from the CSE herself.

Parent is familiar with her child’s needs and has been appropriately advocating and implementing needed services for her child. Parent testimony indicates her ability to impart important information to the CSE team which should have been addressed.

Some concerns the parent raised which were not addressed included: still affects her , sometimes appearing as , “…limited time traveling in a , environmental school, physical size of the building, types of students he was going to work with, safety of the building.“ (T 408-409, 415)

Additionally, the DOE failed to respond to any parent notice or request for additional information, or address any concerns raised in her correspondences regarding the IEP and placement. (Ex D, E, F &G)

Parent reflected several times on her willingness to attend an appropriate DOE placement. (T 437)

AMOUNT OF TUITION FUNDING

identified the contract, and twelve month tuition as $97,700.00. (T 189, Ex O)

Parents are responsible for open balance of over $90,000.00, and if unsuccessful at hearing the school would issue a payment plan. (T 190)

Parents are responsible for tuition payment and the school would enforce the tuition contract. (T 190-191)

identified the enrollment contract signed June 01, 2012 to ensure a back up placement in case the DOE did not make an appropriate placement offer. (T 438, Ex O)

does not have the funds to make any payments to , besides the initial $5,000.00. (T 441)

It is her understanding that if tuition is not reimbursed by DOE she will have to pay the balance if she wants her son to continue at . (T 441-442)

identified tax returns which reflect over $170,000.00 in income. (T 443-444, Ex S)

seeks reimbursement of the $5,000.00 and direct payment of the balance of tuition. Though there is an income of $170,000.00 the family expenses do not leave funds for payment of the tuition and reimbursement. Rent is $2,400.00 monthly. Family does take vacations. (T 444-447)

Parent did not provide any financial information relative to expenses beside rent.

Without more detailed financial information a determination cannot be made that the parent cannot afford to outlay the tuition and receive reimbursement, either in one full payment, or over the course of time via a payment plan.

In the instant case the student tuition should be paid during the pendency of this proceeding by DOE directly. (Ex I)

I find for the remaining tuition that is or will become due that the parent can be reimbursed as detailed herein.

Parent has already paid $5,000.00 that shall be reimbursed immediately upon issuance of the order contained herein.

Tuition of $97,700.00 is $8,142.00 monthly.

Parent shall be responsible for four months tuition, $32,568.00. Parent shall be reimbursed for any tuition paid up the $32,968.00, for the 2012-2013 school year.

Any other funds due to for the 2012-2013 school year shall be paid directly by DOE to . This amounts is up to $65,132.00 for the 2012-2013 school year.

REMAINING RELIEF SOUGHT

The IDEA and State and federal regulations guarantee parents the right to obtain an Independent Educational Evaluation (IEE) (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]). IEEs are defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]). In addition to having an IEE considered by the CSE, parents have the right to have one IEE conducted at public expense if the parent disagrees

Additionally, an IHO is vested with the authority to direct that a student be evaluated at district expense (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]). IHOs are "granted broad authority in their handling of the hearing process and to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA" (Warren Consolidated Schs., 106 LRP 70659 [LEA MI 2000]).

Parent seeks evaluations in any areas in which it is determined the DOE did not appropriately evaluate the student. I do not find the need to order additional evaluations at this time as it will not impact the 2012-2013 school year, and the parent and school are able to provide information to the DOE, if requested, which could be used to adequately formulate an IEP, assuming the CSE team acts appropriately. Presently testimony indicates can and is delivering appropriate services to the Compensatory relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see Newington, 546 F.3d at 123 [stating that the "IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a" FAPE]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *23 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd of Educ., 108 LRP 49659, [S.D.N.Y. March 6, 2008], adopted at 50 IDELR 225 [July 7, 2008]). Likewise, SROs have awarded compensatory "additional services" to students who remain eligible under the IDEA and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for services under the IDEA by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; see, e.g., Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091.

I do not find an adequate claim has been established for compensatory or additional educational services as the student has not suffered the loss of any service, as has continued to serve and meet the student’s needs. Though DOE did not offer a FAPE, the student was not denied appropriate services which could be remedied through the provision of additional services.

A "Nickerson letter" is a remedy for a systemic denial of FAPE that was imposed by the U.S. District Court based upon a class action lawsuit, and this remedy is available to parents and students who are class members in accordance with the terms of a consent order (see R.E. v. New York City Dept. of Educ., 785 F.Supp.2d 28, 44 [S.D.N.Y. 2011]). The Nickerson letter remedy authorizes a parent to immediately place the student in an appropriate special education program in a State-approved nonpublic school at no cost to the parent (see Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]). The remedy provided by the Jose P. decision is intended to address those situations in which a student has not been evaluated within 30 days or placed within 60 days of referral to the CSE (id.; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 279 [E.D.N.Y. Aug. 25, 2010]; see Application of the Bd. of Educ., Appeal No. 03110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092; see also Tr. pp. 146-47).

The request for a Nickerson Letter is not justified in this case as relief has been otherwise addressed by placement at . Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

Student has shown the need for reasonable accommodations including limited travel time, climate controlled round trip transportation. (T 415, Ex N)

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2012-2013 school year.

2. I find the provided an appropriate educational placement for the student for the 2012-2013 school year.

3. The parent shall be reimbursed for placement at the $5,000.00 already paid for tuition and student attendance for the 2012-2013 school year. Parent shall also be reimbursed for any payment of tuition made for the remainder of the 2012-2013 school year, up to $32,568.00. Any balance beyond this amount, up to $65,132.00, shall be paid directly to by the DOE.

4. DOE shall provide parent with any forms required to complete the reimbursement process within ten days of receipt of this Order.

5. DOE shall reimburse parent within 30 days of receipt of any required documents and proof of payment by parent of the 2012-2013 tuition or part thereof, until entire reimbursement amount has been received by parent.

6. DOE shall provide transportation to the student, which includes limited travel time, climate controlled round trip transportation, for the 2012-2013 school year.

7. Demand for additional evaluations is denied.

8. Demand for a Nickerson letter is denied.

9. Demand for compensatory education is denied.

10. This decision is subject to appeal and review by the State Review Officer.

DATED: MARCH 8, 2013

_______________________

DANIEL AJELLO, ESQ.

Impartial Hearing Officer DA;mv

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A 9/10/12 Impartial Hearing Request, 21 pages B 1/8/07 Findings of Fact and Decision, Case # , 17 pages C Dated 9/19/12, Email to Dr. 2 pages D Dated 8/16/12, Letter to , 3 pages E Dated 7/17/12, Letter to w/proof of transmission, 4 pages F Dated 6/25/12, Letter to w/proof of transition, 5 pages G Dated 6/15/12, Letter to w/proof of transmission, 3 pages H June 2012, Interdisciplinary Transitions Program Report of Progress Update, 17 pages I Dated December 2011, Inter-disciplinary Transitions Program Report of Progress Update, 15 pages J December 2011, Interdisciplinary Transitions Program Report of Progress Update, 14 pages K December 2010 Interdisciplinary Transitions Program Report of Progress Update, 10 pages L Dated 5/2010, Interdisciplinary Progress Report Update, 12 pages M Dated 4/11/11, Fax to w/ Evaluation Report & proof of transmission, 13 pages N Dated 4/10, Fax to w/ various reports, 8 pages O 2012-2013 Contract, Attendance Report, Affidavit Reflecting Payment and check, 9 pages P Undated, School information materials, 16 pages Q 2012-2013 School Curriculum, Mission Statement and Vision Statement, 5 pages R 7/10/12 Social Workers Notes on Site Visit, 2 pages S 2011 Tax Returns, 8 pages

DEPARTMENT OF EDUCATION

1 Dated 2/14/12, IEP, 13 pages 2 Dated 12/2012, School Progress Report, 15 pages 3 Dated July 2011, Vocational Assessment, 3 pages 4 CSE Minutes, dated 02/14/2012, 5 pages 5 Final Notice of Recommendation, dated 06/21/2012, 1 page

HEARING OFFFICER

I Pendency Order, dated 09/27/2012, 8 pages II DOE Closing Brief, dated 02/25/2013, 15 pages III Parent Closing Brief, dated 02/25/2013, 27 pages

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Footnotes

[8] NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059. Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a child with a Disability, Appeal No. 08-087). The burden of proof is on the school district of demonstrating the appropriateness of the program recommended by the CSE. A parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).