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: October 24, 2012

January 3, 2013

January 23, 2013

January 31, 2013

February 6, 2013

February 28, 2013

Actual Record Closed Date: March 25, 2013

Hearing Officer: Michael Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 24, 2012

Parents' Attorney (Via Telephone) — Student

District Representative (Via Telephone) — DOE

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

Attorney (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JAUNUARY 23, 2013

Attorney — Student

Father — Student

Mother — Student

DOE Attorney — DOE

School Psychologist (Via Telephone) — DOE

Parent Coordinator (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JAUNUARY 31, 2013

Attorney — Student

Parents

Parents

DOE Attorney — DOE

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

Attorney — Student

Parents

Special Education Teacher (Via Telephone) — Student

Therapist — Student

Attorney — DOE

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

Attorney — Student

(Via Telephone) — Student

Parents

DR., Educational Consultant — Student

Attorney — DOE

By Amended Due Process Complaint dated October 22, 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. This Impartial Hearing Officer (IHO) was appointed on October 16, 2012, after the recusal of 1 other IHO.

A prehearing conference was held on October 24, 2012, during which the parties discussed the issues and the amendment. (IHO Exh. 1) This IHO allowed the amendment and the District did not indicate any issues with the Complaint. (Exh. 1, at 10)

The matter proceeded to a second resolution period. The amended Complaint alleges that the District denied the Student a free appropriate public education (FAPE) through its Committee on Special Education (CSE) meeting dated May 30, 2012 which:

1) was not based on an observation; 2) did not include the appropriate team members; 3) was not based on a triennial evaluation; 4) did not adequately discuss the Student’s ; 5) produced an IEP that did not contain the location of the school; 6) produced an IEP that did not adequately address the Student’s ) produced an IEP that did not address accommodations required to manage the Student’s need for integration, including an environment 8) produced an IEP that had goals and objectives that had already been achieved and does not address all educational, social and management needs, including regulation and social needs; 9) produced an IEP that did not include a transition or vocational program for the Student; 10) produced an IEP that did not include parent training; 11) that the designated placement for the Student, , is a school that is too large for the Student and cannot accommodate the Student’s or her need throughout the day.

Upon the application of both parties on the 21st of December, 2012, the decision date in this matter was ordered to be reset to January 20, 2013. The reasons were witness availability. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. Though the Student was not attending school at the time, the issues in the complaint were complicated and 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. The parties were notified via written notice. (IHO Exh. 2)

After the second resolution period, another prehearing conference resulted on January 3, 2013. (IHO Exh. 3)

Upon the application of the parent on the 21st of January, 2013, the decision date in this matter was ordered to be reset to February 21, 2013. The reasons were witness availability. The parties were notified by email and written notice. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) 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. (IHO Exh. 4)

Hearing dates followed on January 23, 2013, January 31, 2013, and February 6, 2013.

Upon the application of the District on the 6th of February, 2013, the decision date in this matter was ordered to be reset to March 21, 2013. The reasons were witness availability and extensive testimony and issues. The parties were notified by email and by written notice. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) 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 wellbeing. There was no showing of any prejudice to the District. (IHO Exh. 5)

A final hearing date was held on February 28, 2013. The parties asked to submit written briefs and the parent sought to reply. Both sides were given an opportunity to reply.

Upon the application of both sides on the 18th of March, 2013, the decision date in this matter was ordered to be reset to April 20, 2013. The reasons were the need for the parties to submit briefs in this complex matter. The parties were notified by email and by written notice. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) 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 wellbeing. There was no showing of any prejudice to the District. (IHO Exh. 6)

The parties presented briefs on March 21, 2013. (IHO Exhs. 7, 8) The parent presented a reply on March 25, 2013. (IHO Exh. 9)

FINDINGS OF FACT

The Student is a . (Exh. 3) She does not present as . (369) She is related, more with adults. (369)

Her learning has a lot to do with how she (289-291) She has “ (292) She has a limited ability to express . (290) Academically, the Student’s skill . (Exh. 3) The Student recognizes letters and her name and some sight words. (Exh. 3) She can answer who, what, where questions in familiar stories. (Exh. F) She needs to work in small groups or in dyads. (Exh. F) She has

When regulated, the Student will . (Exh. 3) When the Student will display . (Exh. 3) When ” for (Exh. 3)

The Student seeks out . (Exh. 3, 329-330) She is and will hen there are loud noises. (209)

The Student has a and needs time to . (Exh. 3) happen frequently. (Exh. 6) .

(380) It is difficult to determine . (Exh. 6, 214) There can be per day. (121) The Student will . (122) She takes during the morning, during lunch, and evening. (122) When she has a certain kind of , diastat is needed. (122)

Transitions can be a challenge for the Student. (Exh. 7) The Student transitions better when she is not in a large group and when she has a lot of space around her. (Exh. 7)

The Student gets . (Exh. F) She can engage in , . (Exh. F)

for the Student at home and at school. (Exh. F)

The Student has received DIR Floortime instruction from a young age and has responded to this instruction. (125-126)

The Student attended , which uses a structured teaching method for the Student in addition to DIR Floortime. (122-123) This program began , for the 2007-2008 school year. (131) The Student had a hard time dealing with the structure. (133, 371-372) New and she (383-384) The more they used structured teaching, the more she needed to be restrained. (384) when the structured teaching went down. (391) The Student was pulled out on this program in April, 2009. (133)

The Student was for a portion of the 2009-2010 school year and was there until the 2011-2012 school year. (139-140) At the , the Student has made good progress in terms of listening to stories that are read to her. (Exh. 3) She made good progress in terms of reading comprehension and was very proud of her work. (Exh. 6) Handwriting had become more legible and organized. (Exh. 6, 143) The Student loved to share at school, enjoys homework. (Exh. 3, 144) The school staff were trained in best practices when the Student has . (Exh. 3) had decreased at the school. (Exh. 6) There was progress in terms of peer relationships. (230) She was staying in the classroom for a longer period of time. (230) There was progress in counting, writing her name, typing, reading comprehension. (232)

The classroom ratio was . (Exh. 7) Routine included morning meeting, literacy, math, science, social studies. (Exh. 7) . (Exh. 7)

Related services are provided at the school, including therapy,

The uses the DIR model, which focuses on the Student’s development. (Exh. 7, 225-228) They will take into consideration (228) DIR gives students many choices and they move up from one skill to another skill. (36 teaches reading, writing, math, science, health and social studies. (208) There are also classes in home economics, life science skills. (208) The school materials available in a sensory gym and in the classroom. (210) An would come into the classroom and help the teacher keep the students as regulated as possible. (211) Within the classroom there were brushes, lotion, a beanbag chair, a ceiling swing, a weighted blanket. (211) The Student benefitted from these interventions daily. (211-213)

If the Student had a , the school would safely get the Student to the floor because her body . (215) would last for . (215) When they got , they would make sure her to make sure she . (216) Then they would take her to and have a recovery. (216) Recovery could last for several hours. (219)

She would also have , where the staff and she was “ .” (215) A nurse would check in on her during . (217-218) Other students were taken out of the classroom during . (217)

The school had a protocol on the wall, and the school nurse trained the staff to know how to . (216, 218) They had to make sure that so she . (259) They had to make sure the Student was on her side. (259) They had to for safety. (259) They had to make sure there 260)

The Student was staying in the classroom more during 2011-2012 and was becoming more tolerant of her peers. (Exh. 7) She needed outside the classroom less. (263-264) Moments of occurred less frequently and were less intense. (Exh. 7) She was becoming more independent. (Exh. 7) There would be 10-20 within the classroom daily. (266)

The Student was in the Transition Program , which is designed to promote Student autonomy through ongoing academic and social activities. (Exh. 7; 235-236) The Students are exposed to literature, with comprehension at the heart of the program. (Exh.

7) There is math, which practices work in the real world. (Exh. 7) There is Science, Social Studies, community outings. (Exh. 7)

The CSE met on May 30, 2012 to review the Student’s program. (220) Attending the review were worker, the parents, a social worker from , and the Student’s former teacher at the . (65-66, 220, Exh. 3) They reviewed a written progress report from the school, and asked the teacher if the report was an accurate description of the child’s functioning at the school. (69) The parents were invited to share concerns and questions.

(69) Dr. from the CSE read the goals from the school report aloud and asked the teacher on the status of the goals. (74-75) The parents discussed the Student’s at the meeting and the teacher from also discussed it. (141) The CSE did not discuss any supports for the Student when she . (222) The parties discussed the program at . (141-142) The goals reflect that the Student was attending a DIR program. (143)

The CSE did not perform any assessments prior to this IEP meeting. (71) A computer-related problem made it impossible for the District to conduct the assessments.

(72) The IEP does not reference a psychoeducational assessment. (77-78) No observation was conducted of the Student. (140) None of the District CSE members knew the Student. (141)

The IEP indicates that the Student needs time to recover/process after experiencing a . (Exh. 3) It indicates that the Student needs a small, structured class in a specialized school with related services of therapy, on a 12 month basis. (Exh. 3) The IEP indicates that the Student does not or a BIP. (Exh. 3) Management needs include a clear, structured routine for her to remain regulated, with a great deal of sensory input during the day. (Exh. 3) are recommended, with verbal encouragement and praise. (Exh. 3)

Goals in the IEP relating to financial transactions in the community, literacy skills, math skills, life skills, occupational therapy therapy, counseling. (Exh. 3) Specific objectives are contained within each goal to provide detail. (Exh. 3) Goals are taken from the report. (147) These goals were written for a six month time frame. (223-224) They were expected to be achieved by the end of 2011-2012 school year. (223-224)

As of May, 2012, progress had been made on many of the objectives, and the Student had mastered some. (276-279)

Transition activities include “engaging in a vocational training program, participating in all mandatory related services,” “integrating into the community with maximum supports,” and “becoming employed within a workshop setting.” (Exh. 3)

The is for Students with difficulty with changes in routine. (Exh. K)

The final notice of recommendation indicates placement . (Exh. 4) The recommendation is for a classroom with counseling individually and group, occupation therapy individual and group, speech. (Exh. 4)

The uses the TEACCH methodology, with some ABA methodology. (97-98) There is a sensory corner in the classroom. (98) The TEACCH methodology is very structured, with very specific tasks to be completed. (365-366)

The parents visited the on July 18, 2012. (Exh. 5, H, I, J) They asked questions relating to program, including relating to the Student’s . (Exh. 5, 94-95) The parents were particularly asking about medications that would be dispensed to students in the event of a disorder. (95) They had also visited the school in December, 2011. (92)

There was a student in the classroom they were to be visiting, so the parents were not allowed to view this classroom. (105-106) The school had therapy room that was crowded with equipment. (156, 334) There is no at the school. (335)

There is in the classroom. (336) There was no quiet space for the children. (341)

The Student has been receiving home instruction for the 2012-2013 school year.

(175) Home instruction has been provided from July 1, 2012 by Skip of New York, and has been paid for by Skip. (Exh. P) Home instruction has also been provided through a teacher who has been paid by the parents, for 4-5 hours per week, at $30 per hour. (Exh.

P) has been provided for one hour per week @ $165 per hour from September 18 through October 9, and then from October 23 to date for one hour every two weeks for $165 per hour. (Exh. P)

Ms. has been providing the Student with special education services at home.

(236) They are working on her reading, on her sight word bank, they will go out into the community. (237-238) Progress has been noted in regard to her ability to read. (236) She is a certified teacher for 1-6. (242) She works with her for six hours per week and charges $30 per hour. (246) She usually comes to the family at about 4:30 on Mondays and Thursdays. (248)

has been providing to the Student since September, 2012. (288) They have been working on expanding her ability to express herself. (290) They work on her being , strengthening her problem solving ability. (296-297) They work a lot with the iPad. (299)

The parents do not have the resources to pay for themselves. (137)

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.

1. FAPE Denial.

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)

The District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District 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. 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 CSE has a duty to reevaluate a Student at least once every three years except where the District and the parents agree that the reevaluation is inappropriate. 8 NYCRR Sect. 200.4(b)(4). In such a reevaluation, the District has a duty to assess students in all areas of suspected disability, including, where appropriate, “social and emotional status,” “academic performance,” “communicative status and motor abilities.” 8 NYCRR Sect. 200.4(b)(6)(vii). The evaluation should be sufficiently comprehensive to identify all of the student’s special education needs. 8 NYCRR Sect. 204.(b)(6)(x) No single measure or assessment should be used as the sole criterion for determining an appropriate educational program for the Student. (8 NYCRR Sect. 200.4(b)(6)(v).

The record indicates, and I find, that the District did not do any assessments for this Student because of a computer-related issue. The District chose to rely on a single measure, i.e., the reports from the to formulate the Student’s IEP. From this, the District determined that the Student requires a structured environment. The IEP particularly indicates that the Student needs a “clear, structured, routine daily plan to best remain regulated.”

There is nothing to this effect, however, in the reports. Moreover, the Student’s earlier history at indicates that the Student does not respond to structure and instead requires an environment that is more flexible and responsive to her wants and needs. The record indicates that the District did not consider the Student’s history at Imagine Academy when creating an IEP for this Student.

Instead, the record reflects, and I find, that a structured program and then from the Student.^[1] This Student has a particularly . There can be between per day. With , the Student that the Student during these . With , the manifestations are more subtle, such as eye blinking. The Student for the on a , and during certain , is needed for the Student.

The IEP provides no information on how to recognize and no specific protocol on how to address a except for the general statement that the Student needs time to recover after having a . The District points out that language in the IEP indicates that “staff has been trained in best practices to employ has one of her frequent including removing her to a separate, quiet room.” However, this is a reference to staff at , not to staff at a District site. (222) There is nothing in the record to establish that staff at a District site are trained in best practices to employ when the Student has . Further, the District’s IEP includes a “Management Needs” section which “describes the nature

(type) and degree (extent) to which environmental and human or material resources are needed to address needs.” This section contains no language relating to the Student’s needs as relating to . It is noted that Districts have a duty to address safety concerns in the IEP. Lillbask v. State of Connecticut, 397 F.3d 77, 93-94 (2d Cir. 2005); cf. Application of a Student with a Disability, Appeal No. 12-006 (District should train all staff in recognizing signs of student and in protocols once a exists).

The record also indicates that the goals in the IEP were taken from report from December, 2011. These goals were written for a six month time frame. They were expected to be achieved by the end of 2011-2012 school year. As of May, 2012, progress had been made on many of the objectives, and the Student had mastered some. IEP goals should not be “recycled” from last year’s goals on the IEP. E.S. v. Katonah-Lewisboro Sch. Dist., 742 F. Supp.2d 417 (S.D.N.Y. 2010), aff’d, 487 Fed. App’x 619 (2d Cir. 2012). The Circuit recently underscored the importance of having appropriate goals and objectives in a Student’s IEP. M.H. v. New York City Dep’t of Educ., 685 F.3d 217 (2d Cir. 2012)(where goals not measurable and too advanced for Student, FAPE denial resulted). Moreover, a review of the goals in the IEP indicates such objectives as “ will engage and sustain in continuous back and forth interactions for 35-40 circles of communication across a variety of activities and contexts with a therapist in 5 consecutive sessions.” The record makes clear that this is terminology that relates to the DIR Floortime methodology. However, the District’s program recommendations do not recommend a DIR Floortime model for this Student.

Additionally, the IEP should contain a transition services plan for this Student. Specifically, the IDEA requires every IEP, beginning no later than the one that will be in effect when the child is old, to include "appropriate measurable postsecondary goals based on age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills," and to describe the "transition services (including courses of study) needed to assist the child in reaching those goals." 20 U.S.C. Sect. 1414(d)(1)(A)(i)(VIII)(aa)-(bb)); see also 34 C.F.R. § 300.320(b).

As recently stated by a federal court:

Congress in the IDEA placed "added emphasis on transition services so that special education students leave the system ready to be full productive citizens, whether they choose to go on to college or a job."

150 Cong. Rec. S11653-01, S11656 (Nov. 19, 2004) (Conf. Rep.

accompanying H.R. 1350) (Statement of Sen. Dodd). Among its many changes, the IDEIA is supposed to "enhance[ ] planning and transition services for children with disabilities," id. at S11655 (statement of

Sen. Reed), and "significantly improve[ ] transition services to ensure that students with disabilities are prepared for postsecondary education or employment." Id. at S11659 (statement of Sen. Bingaman).

Carrie I. v. Department of Educ., 869 F. Supp.2d 1225 (D. Haw. 2012)(while noting that a violation of transition services rules is a procedural violation, where a transition services plan that was “essentially nonexistent,” FAPE denial resulted)

A review of the transition activities section in the IEP indicates that the District provided no services in this connection and no specifics in regard to this plan. In terms of instruction, the service/activity is only “ will engage in a vocational training program.” No particular program is mentioned. In terms of related services, the service/activity is only “ will participate in all mandated “Related Services.” No specifics are mentioned. In terms of community experiences, the service/activity is only “ will integrate into the community with maximum supports.

I also agree with the parent that the IEP does not adequately provide for the Student’s The IEP does indicate that the Student requires a great deal of during the day. However, the IEP is not clear on how that input would be provided to the Student during the school day. Additionally, the IEP does not provide for any “ ” in the classroom. The December, 2011 Progress Report from the does mention this need. (Exh. 7) Indeed, there is testimony to the effect, and I find, that the Student requires to be able to function in school. Moreover, there is testimony to the effect, and I find, that this Student is Modifications must be made to this Student’s environment to accommodate the Student’s . However, the IEP does not provide for any interventions in this connection. Instead, the IEP provides that the Student’s sensory needs are to be addressed through a structured class in a Specialized school.

Finally, the IEP also does not provide for parent training for this Student, as is required under the regulations. 8 NYCRR Sects. 200.13(d); see R.E., 694 F.3d at 194. Given the above, this IHO is of the view that the parents were justified in not relying on the May, 2012 IEP for 2012-2013. I find that the cumulative impact of the above violations denied this Student a FAPE for 2012-2013. R.E., 694 F.3d at 191.^[2]

2. Relief.

The parents seek three forms of relief: 1) payment for services rendered for the duration of the 2012-2013 school year to present; 2) tuition payment for for the remainder of the school year; 3) compensatory education.

A. Home Instruction.

Here, 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 placement should be “proper under the act.” Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). Parents may be accordingly reimbursed for tutoring expenses during the time period during which their child was denied a FAPE. Solomon-Lane v. District of Columbia, 2005 WL 763533 (D.D.C. 2005); Anchorage School District v. M.P., 2011 WL 5149140 (9th Cir. 2011); Application of A Student with a Disability, Appeal No. 09-068.

The record shows that the parents has provided the Student with a appropriate home instruction program given their resources. has been provided for one hour per week @ $165 per hour from September 18 through October 9, and then from October 23 to date for one hour every two weeks for $165 per hour. The counselor has been working on expanding the Student’s ability to express herself, on getting the Student to be “less rigid,” on strengthening the Student’s problem solving ability. A teacher from the , Ms. , has also been providing the Student with special education services at home. Ms. has been working on the Student’s reading, on her sight word bank, and has been taking the Student out into the community. (237-238) Ms noted that the Student has made some progress in reading and charges $30 hour for her services. I find that the Student’s home program is “proper under the Act.”

B. Placement.

In regard to the parent’s request to fund the for the remainder of the school year, the Impartial Hearing Officer has “broad discretion” to order relief to insure that a child receives the FAPE that they are entitled to. Application of the New York City Department of Education, Appeal No. 05-113. There is authority within this Circuit that awards direct payment to parents who have enrolled their children at a private school but have not paid any tuition. Mr. And Mrs. A v. New York City Dep’t of Educ., 769 F.Supp.2d 403 (S.D.N.Y. 2011)(payment ordered to Rebecca School). There is also authority that affords hearing officers and courts the right to direct payment to a particular school to insure that Students receive FAPE. Branham ex rel Branham v. District of Columbia, 427 F.3d 7 (D.C. Cir. 2005); Application of a Student with a Disability, Appeal No. 08-103 n.9.

The record establishes that was providing the Student an appropriate environment in 2011-2012 and would provide the Student with an appropriate environment for the remainder of this school year. In particular, the record indicates that the school employs a safe, clear protocol when the Student has . G.B. and L.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp.2d 552 (S.D.N.Y. 2010)(private placement cannot be regarded as proper under the IDEA when it does not, at a minimum, provide some element of special education services in which the public school placement was deficient). In 2011-2012, when the Student had a “ ” , the school would safely get the Student to the floor because . When they got her to make They would also notice if the Student had “subclinical” , where the staff would notice that the Student was blinking and she was “kind of out of it.” A nurse would check in on her during every , and Other students were taken out of the classroom during the . The school had a protocol on the wall, and the school nurse trained the staff to know how to handle the . They knew to get behind the Student so she . They had to make sure there were no objects around that she would be able to hit her head on.

The record also indicates that the Student has responded to the DIR/Floortime approach at the school, which is provided in a small class with an ratio. The school uses the DIR model, which focuses on the Student’s emotional functional emotional developmental growth, processing skills, and social development. This is not a structured approach which would cause the ; instead, it is an approach which will take into consideration the Student’s passions. DIR gives students many choices and they move up from one skill to another skill. There are classes in reading, writing, math, science, health and social studies. There are also classes in home economics, life science skills. The Student has made good progress with this approach, including in terms of listening to stories that are read to her, reading comprehension, handwriting, behavior, peer relationships, staying in the classroom, writing, typing. The school would provide the Student with a significant amount of sensory input and provides her with “sensory breaks” as needed. The school would provide the Student with related services of speech and language therapy, occupational therapy . Routine included morning meeting, literacy, math, science, social studies. occurs throughout the week. Related services are provided at the school, including , occupational therapy, .

The District argues that the parents have not presented enough information about the setting, and have provided only general information about the school. However, I find that the parent’s presentation was sufficiently detailed in the description of the methodology, the description of the classes, the description of the protocols to address , and the description of the sensory interventions at the school. It is noted that the District’s IEP specifically notes that the Student made progress at in terms of letter recognition, reading comprehension, and enjoyed the school. The progress report before the CSE also thoroughly describes the curriculum at the school, including related services. The June, 2012 progress reports submitted by the District has similar reports of progress. Cases indicate that where there is testimony from special education professionals and documentary evidence indicating progress, parents can receive tuition awards. G.B. and L.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp.2d 552 (S.D.N.Y.

2010) I find that would provide the Student with special education services to meet her special education needs for the remainder of the school year. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

C. Compensatory Education.

The parents indicate that they are seeking compensatory education in the form of speech and language therapy for services missed during the time period the Student was out of school.

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 free and appropriate public education. P. v. Newington Bd. of Educ., 546 F.3d 111 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990); see also Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005)(cited in Newington). The remedy should provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place. Id., 401 F. 3d at 524; see also Friendship Edison Public Charter School v. Nesbitt, 532 F. Supp. 2d 121, 125 (D.D.C. 2008) (compensatory award must be based on a "'qualitative, fact-intensive' inquiry used to craft an award 'tailored to the unique needs of the disabled student"). A Petitioner need not "have a perfect case” to be entitled to a compensatory education award." Stanton v. District of Columbia, 680 F. Supp. 201 (D.D.C. 2011)

The parents do not specifically indicate what compensatory education services they seek. In the parent’s brief, the parents suggest that they are seeking compensatory education in the form of therapy. However, the parents do not indicate how much therapy they are seeking, do not explain who would be providing such services, and do not explain how these services would make up for the FAPE deprivation that occurred in this case. No witness was called to support this contention. The Student will now be in an appropriate placement. Wheaten v. District of Columbia, 2010 WL 2990282 (D.D.C. 2010). Moreover, the parents have already received reimbursement for services obtained during the time period that the Student was denied FAPE. See Breanne C. v. Southern York County School Dist., 732 F. Supp.2d 474, 488 (M.D. Pa. 2010). Accordingly, I will deny the parent’s request for relief in this connection.

D. Equities.

In terms of equitable considerations, this is not a case where the parents have unilaterally placed the Student in a school program. Still, equity must be considered here, both with respect to the parent’s request for reimbursement and with respect to the parent’s request for placement.^[3]

The record indicates that the parents gave the District fair notice of their position at the CSE meeting, where they raised concerns about the . The parents also wrote several letters to the District expressing concern that the District had not accommodated the Student’s . Moreover, the parents also tried to resolve this case through the resolution process. No resolution was reached and the District did not modify its IEP at that time. Moreover, the District has not suggested a placement within its system to provide a program that would meet the Student’s educational needs at this time.

The District suggests that the parents were “going through the motions” and were not genuinely considering a public school placement here. This IHO cannot agree. This is not a case where the parents have feigned interest in a District placement to further litigation interests. The record indicates, and I find, that the parents were ready to resolve this case through resolution and were genuinely interested in visiting the proposed school. The District also suggests that the parents did not present sufficient information about their financial situation to merit an award of tuition payment. While the parents were not specific in terms of their finances, the parents stated that they do not have the resources to pay . Moreover, the facts in this case dictate that parents do not have the resources to pay for the school. The Student is not currently enrolled at the school and sits at home. There is no testimony or evidence in the record to rebut the parents’ contention that they cannot afford the school, and the District does not suggest that the parents can possibly pay for this school’s tuition up front. In Mr. And Mrs. A. v. New York City Dep’t of Educ., 769 F. Supp.2d 403 (S.D.N.Y. 2011), the Court did not describe the evidence and testimony needed to secure an order directing payment to a school. Under the circumstances, it would be inappropriate to order that these parents pay and then be reimbursed for tuition for the remainder of the school year. Accordingly, I will order that the parents be reimbursed for expenses through the date of this decision and that the District place the Student for the remainder of the 2012-2013 school year. Dated: April 8, 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 Original Complaint 9/10/12, 3 pages C Consent form to Evaluate 9/26/11, 10/3/11, 1 page E IEP 5/30/12, 16 pages F CSE Meeting Minutes 5/30/12, 4 pages G Final Notice 6/18/12, 2 pages H Letter to DOE 7/19/12, 2 pages I Letter to DOE 8/6/12, 2 pages J Letters to DOE 8/29/12, 3 pages K Description of Programs from DOE Website, 4 pages L Email Correspondence, 3 pages M Resolution Request 11/26/12, 2 pages N Letter to Hearing Officer 11/28/12, 2 pages O Email Correspondence 11/29/12, 11/30/12, 1 page P Email to DOE counsel 11/30/12, 2 pages Q Letters from Child Protective Services 11/30/12, 4 pages R Email to 12/3/12, 1 page S Letter of Intent 12/14/12, 2 pages T Cancelled Checks 8 pages U SKIP Annual Plan 10/18/12, 3 pages

DEPARTMENT OF EDUCATION

1 Complaint 10/22, 3 pages 2 Amended Complaint 11/15/12, 3 pages 3 IEP 5/30/12, 13 pages 4 Final Notice of Recommendation 6/18/12, 1 page 5 Notes from Visit to Placement 7/18/12, 3 pages 6 Special Education Teacher Notes 5/30/12, 2 pages 7 Progress Report 12/11/12, 14 pages 8 Chancellor's Regulation A701, 08/15/12, 10 pages 9 Progress Report Update, June 2012, 14 pages

IMPARTIAL HEARING OFFICER

1. Pre-hearing Conference Transcript, 10/24/12

2. IHO Timelines Notice, 1 page 3 Pre-hearing Conference Transcript, 13/13 4 Timeline Notice, 1 page 5 Timeline Notice, 1 page 6 Timeline Notice, 1 page 7 Brief of Parents, 3/21/13, 30 page 8 Brief of District, 3/21/13, 29 pages 9 Reply of Parents, 3/25/13, 7 pages

Footnotes

[1] As stated in the comments to the 1999 IDEA regulations: In light of the legislative history and case law, it is clear that in developing an individualized education there are circumstances in which the particular teaching methodology that will be used is an integral part of what is ‘‘individualized’’ about a student’s education and, in those circumstances will need to be discussed at the IEP meeting and incorporated into the student’s IEP. For example, for a child with a learning disability who has not learned to read using traditional instructional methods, an appropriate education may require some other instructional strategy. Fed. Reg. Vol. 64, No. 48 (March 12, 1999) at 12552.

[2] I have considered the parents’ other allegations in the Complaint, and find that I need not reach them given my determinations herein. Application of a Student with a Disability, Appeal No. 09-072.

[3] In reimbursement cases, 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 parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if 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 stating their concerns and their intent with remove the child within ten business days before such removal. 34 CFR Sect. 148(d)(i), (ii). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary.