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: December 27, 2012

April 12, 2013

May 10, 2013

May 30, 2013

Actual Record Closed Date: July 22, 2013

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 27,

2012

Advocate (Via Telephone) — Student

District Representative — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 12, 2013

Attorney — Student

Parents

DOE Attorney — DOE

DOE Psychologist (Via Telephone) — DOE

Assistant Principal (Via Telephone) — DOE

NAMES AND TITLES OF PERSON WHO APPEARED ON MAY 10, 2013

Attorney — Student

Parents

Intake Coordinator — Student

Occupational Therapist — Student

(Via Telephone) — Student

Social Worker (Via Telephone) — Student

Attorney — DOE

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

Attorney — Student

Parents

Teacher, (Via Telephone) — Student

DOE Attorney — DOE

Parent Coordinator (Via Telephone) — DOE

On October 5, 2012, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), Part 200 of the Regulations of the Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a (8) year old student and the New York City Department of Education (“DOE”) - District 02, concerning the student’s special education program. After an amended “Due Process Complaint” (“DPC”) was filed on or about January 2, 2013, a “resolution period” was had and adjournments were granted either for good cause of on consent of the parties, the impartial hearing was held on December 27, 2012 (pre-hearing conference), April 12, 2013, May 10, 2013 and May 30, 2013. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

The student in this case is classified as .” (DPC) At an annual review that was conducted in March 0f 2011, the student was recommended for a placement for the 2012-2013 school year. (Id.) The Parent asserts that the resulting Individualized Education Program (“IEP”) is procedurally and substantively flawed under law. (Id.) As a result, the Parent unilaterally placed the student in his current private school for the 2012-2013 school year and is seeking an order requiring the DOE to pay the student’s tuition thereat directly to the private school and or reimburse the Parent for the same. (Id.) The Parent also requests that the DOE provide the student with bus transportation to and from the private school for the 2012-2013 school year. (Id.)

THE DOE’S CASE

The DOE argues that the student’s “autism classification” is not disputed. (T-30) On March 28, 2012, the Committee on Special Education (“CSE”) conducted an “annual review” and produced an IEP for the student. (T-30-1) The CSE recommended that the student attend a “ ” special education class at a specialized school in “District .” (T-31) The CSE also recommended that the student receive related services of , occupational therapy and crisis paraprofessional. (Id.) The CSE team reviewed the student’s most recent school reports and evaluations and made a recommendation consistent with the ruling at last year’s impartial hearing which found a “ placement appropriate for the student. (Id.) On June 11, 2012, the DOE issued a “Final Notice of Recommendation” (“FNR”) to the Parent. (T-32) The contests the services that is available at the recommended DOE school. (Id.) The Parent’s allegations regarding the recommended DOE school are speculative. (Id.) On June 18, 2012, the Parent through her advocate at the time rejected the recommended DOE placement. (Id.) The Parent’s “notice’ in this regard did not provide any information on why the recommended DOE IEP and/or placement was inappropriate. (T-33)

The DOE called (2) witnesses to testify on its behalf and submitted (9) documents in evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

The Parent argues that the impartial hearing decision from last year has no bearing on the current school year. (T-37) The DOE’s IEP was mirrored after the student’s program which uses a different methodology and is a completely different setting. (T-38) The Parent, together with a representative from , visited the recommended DOE school and they believe that the school would not be able to implement the IEP. (T-39) The private school does not use a “Behavior Intervention Plan” (“BIP”) because they base their program on a comprehensive , supports and services. (Id.) The student cannot really form an understanding between the desired behaviors and the consequences, the positive rewards and services. (Id.) Accordingly, the have to be addressed by comprehensive sensory integration services. (Id.) The CSE developed its own “Functional Behavior Assessment” (“FBA”) and BIP in order the support the student’s program at the DOE school. (T-39-40) If the DOE school could truly implement the private school program, then the student obviously would not need a FBA or BIP. (T-40)

The Parent called (5) witnesses to testify on her behalf and submitted (1) document in evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 (2005)) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2nd Cir. 2005))

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 (2nd Cir. 2000)) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 (1982)) 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. § 300.550(b), 8 NYCRR §200.6(a)(1))

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 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"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-

102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-

049).

As stated above, the DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents were appropriate, and equitable considerations support the Parents' claim. (Carter and Burlington, supra)

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA. (Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

I first turn to the question of whether the DOE offered the student a FAPE for the 2012-2013 school year. A FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) 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]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.

Here, the record shows that the student’s March 28, 2012 CSE team was composed of a related service provider/special education teacher, the Parent, the school psychologist acting as the district representative, a parent member, the student’s private school teacher, the student’s private school social worker, the parent’s advocate and a DOE social worker. (D-1) Accordingly, I find that the student’s CSE team on March 28, 2012 was duly composed under law.

As stated above, “an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs.” (Supra) Here the DOE submitted in evidence a dated January 25, 2011. (D-5) The agency further argues that the student’s CSE meeting on March 28, 2012 was an annual review, where there are no particularly mandated documents or evaluations which the District must consider. (D-10, citing 8 NYCRR § 200.4(b)(4) & (5) and In Re: Student with a Disability, Appeal No. 10-099) The CSE team also had the student’s private school progress report for December, 2011. (D-4)

A CSE is required to review the IEP of each student with a disability at least once every year. (See 8 NYCRR 200.4[f]) A CSE is also required to arrange for an appropriate reevaluation of each student with a disability if conditions warrant, but at least every three years. (See 8 NYCRR 200.4[b][4])

In determining what additional data are needed, the CSE, and other qualified professionals as appropriate, must review existing evaluation data. (See 8 NYCRR 200.4[b][5][i]) On the basis of that review, and input from the parents, the group must determine what additional evaluation data, if any, are needed. (See 8 NYCRR 200.4[b][5][ii]) The group may conduct its review without a meeting. (See 8 NYCRR 200.4[b][5][i])

As a general rule, prior to conducting a reevaluation, parental consent is not required before reviewing existing data. (See 8 NYCRR 200.5[b][1][i]) When a CSE conducts a reevaluation beyond reviewing existing data, it must obtain written consent from a parent prior to conducting additional assessments as part of the reevaluation, unless it has taken reasonable steps to obtain consent and the parents failed to respond. (See 8 NYCRR 200.5[b][1][i]) If the parents of a student with a disability refuse to consent to a reevaluation, the school district may continue to pursue the additional assessments or evaluations through the impartial hearing process. (See 8 NYCRR 200.5[b][2])

In the instant case, the most recent evaluation was less than three years old (D-5), and neither the Parent, the Parent’s advocate, nor the student’s private school teacher, requested updated evaluations. (T-60) The Final Notice of Recommendation (“FNR”), containing the Parent’s handwritten notes rejecting the offered DOE placement, does not argue that additional evaluations of the student were needed. (P-D) Neither does the Parent’s “10-Day Notice Latter” dated June 18, 2012 and written by her advocate on her behalf, indicate the student’s evaluations were old or faulty. (P-E) While asserting that the Notice Letter should not be construed as a DPC, the letter only claims that the proposed DOE placement is inappropriate for the student. (Id.) The DOE psychologist who acted as the District Representative at the meeting testified that he was confident that the student’s private school progress report contained sufficient information for educational planning purposes and that a formal speech and language evaluation was not needed for the same reason. (T-170-1)

The DOE did not pursue an impartial hearing, nor did the CSE conduct an annual review in this case. As noted previously, the most recent evaluations were less than three years old. The law allows the CSE to convene to develop an IEP if the existing evaluations are found to be sufficient to determine the student's current needs. (SRO No. 03-066) Based on the record before me, I find that the DOE properly proceeded to conduct the student’s CSE meeting on March 28, 2012 with the evaluative information it had.

The student’s private school progress report is comprehensive and consist of (13) pages. (D-4) The report states that the student was at that time in a ” classroom with children ranging in age from (5) to (8). (Id.) The report notes that the student still seeks out “visually stimulating input” and struggles to stay calm when limits are set. (Id.) The student is said to communicate through sign approximations, gestures, eye gaze, facial expressions and picture symbols. (Id.) A major focus in the classroom is fostering the student’s initiation. (Id.) As a “Science/Exploration” goal, the private school progress report states that the student will attend to a sensory or science activity of interest with less adult support. (Id.)

At the private school, the student receives occupational therapy services three times per week individually for (30) minutes each. (Id.) The student is said to be transitioning smoothly. (Id.) He has been able to maintain self-regulation throughout his occupational therapy sessions. (D-4) The student’s states that he primarily - . (Id.) He receives speech and language therapy for (30) minutes per session two times per week individually and one time per week in a group of three. (Id.) Specifically, the report states:

During preferred interactions, [student name] is typically able to remain engaged within one activity for up to ten minutes, and is opening and closing up to ten non-verbal circles of communication, when provided with minimal levels of verbal and tactile cueing. He utilizes a communication book in support of increasing his ability to request desired objects, such as snacks and toys. Overall, sessions focus on improving [student name]

The private school progress reports identifies goals for the student as extending his ability to sustain regulation and share attention, increasing his ability to initiate, increasing his ability to remain in a continuous flow back and forth interaction, improving his academics and his daily living skills. (Id.) The student is said to continue to demonstrate a sensory seeking profile, but after participating in his daily sensory diet, the student can maintain self-regulation for up to (8) minutes. (Id.) The student has shown improvement in motor planning and sequencing for multiple step tasks. (Id.) The student has demonstrated increased engagement and attention with sensory support and his ability to complete and interpret visual spatial tasks have also improved. (Id.) The student is able to remain regulated and engaged throughout each session. (Id.) His are said to have significantly improved since he began working with this therapist in September 2011. (Id.) The student has begun to more frequently initiate one and two word phrases. (Id.) However, he has shown little progress in his ability to request help using gestures. (Id.) The student has also shown little progress producing oral postures when provided tactile feedback with PROMPT, but because he has not shown oral sensory seeking behaviors, oral motor exercises are not deemed necessary. (Id.)

The student’s dated January 25, 2011 notes that the student vocalized spontaneously and no recognizable words were uttered during the evaluation. (D-5) The student’s impulse control and frustration tolerance are said to be noticeably decreased and the student was unable to independently initiate, plan, or organize his behavior in a goal directed manner, and/or complete tasks without noticeable external intervention. (Id.) The student’s cognitive functioning moderately impaired on a composite IQ score, and he is cognitively deficient in all other areas. (Id.) The student could not be evaluated on the “WJIII” because of his (Id.) In summary, the Evaluation states the following:

[Student name] is who was referred for -evaluation to ascertain his current level , and determine his . [Student name] is in a special class, in a special school.

Clinical interview and review of clinical data indicate that [student name] is a friendly, somewhat immature youngster, who and . There was no evidence of . [Student name] which may impact and adjustment including issues with impulse , issues with . In addition , and , and as well as social- also impact his adjustment and functioning.

[Student name] has : he is friendly, via demonstration, has some awareness of self, is .

Recommendations to be made by IEP team. (Id.)

The parties do not dispute that the student is properly classified as (T-30, D-1 & P-

O) The DOE recommended that the student be placed in a special class in a specialized “District 75” school, with student to teacher ratio and with an crisis paraprofessional, for a twelve-month school year. (D-1) The Student also was recommended to receive related services of occupational therapy, five times weekly individually, therapy four times a week individually and once in a group. (Id.) The IEP goals were drafted by the student’s private school teacher and inputted from the private school progress report onto the IEP. (T-530 & D-

4) The private school teacher testified extensively on the appropriateness of these goals and how the student has progressed in these goals. (T-451-69) The IEP recommends services for the student on a 12-month basis. (D-1) The IEP also states that the student will participate in an alternate assessment on a particular State or district-wide assessment of student achievement. (Id.) The student was assigned a BIP. (Id.)

A chief concern for the Parent is whether the DOE could implement the goals created by the private school, as the private school uses a different methodology, “DIR” (“Developmental Individual-Difference Relationship-Based”) therapy and provides the student with . (T-530-1) The student’s occupational therapist testified that the loss of the sensory supports the student receives at the private school would be very difficult for him and possibly result in an increase of the . (T-329) The student would start to disregulate and become frustrated. (T-538) The Parent also argues that the DOE’s failure to conduct an FBA and a BIP is a serious procedural violation that may result in the denial of FAPE, and that the IEP is also flawed because it does not include “parent training.” (Id.)

Firstly, a CSE team is not required to specify methodology on an IEP. The precise teaching methodology to be used by a student's teacher is usually a matter to be left to the teacher. (Rowley, 458 U.S. at 204, SRO Nos.: 11-058, 11-007, 10-056, 08-075, 07-065, 07-054, 07-052, 06-022, 05-053, 94-26 & 93-46) Whether the DOE could implement the student’s private school goals with a methodology other than DIR amounts to a conflicting viewpoint concerning the best manner in which to deliver services and address the student’s goals. (See, J.A. v. New York City Dep't of Educ., 2012 WL 1075843, *9*10 (S.D.N.Y. Mar. 28, 2012) (resolving conflicting views over the quality and extent of adult support services that must provided to a student), D.S. v. Hawaii, 2011 WL 6819060, at *10 (Dec. 27, 2011) (commenting that the IDEA does not set forth with specificity the level of adult support services to be provided to particular students)

The IEP in this case adopted the private’s school’s goals for the student, which is undisputedly personalized to address the student's needs. Even if DIR is a better method to implement those goals, the law does not require the DOE to maximize the student's potential using a specific methodology. (A.C., 553 F.3d at 173, T.L. v. Dep't of Educ. of City of New York, 2012 WL 1107652, at *15 (E.D.N.Y. Mar. 30, 2012)) Neither is the DOE required to guarantee a specific level of benefit to the student. The DOE is only required to offer an IEP that is designed to offer the opportunity for greater than trivial advancement. (A.C., 553 F.3d at 173, Cerra, 427 F.3d at 195, Walczak, 142 F.3d at 130, Connor v. New York City Dep't of Educ., 2009 WL 3335760, at *5–*6 (S.D.N.Y. 2009)) In this case, the student’s private school progress report dated December of 2011 states that he was in a “ ” classroom with children ranging in age from (5) to (8). (D-4) At the private school, the student receives occupational therapy services three times per week individually for (30) minutes each and for (30) minutes per session two times per week individually and one time per week in a group of three. (Id.)

By contrast, the DOE’s IEP provides the student with a crisis paraprofessional “daily” and “full time” and increases his related services to (5) sessions of speech and language services (4 x 30 individually and 1 x 30 in a group of two) and his occupational therapy services (5 x 30 individually). (D-1) This is reasonable and appropriate in light of the student’s “ .” (D-5) The student’s FBA includes a comprehensive list of sensory support strategies, including but not limited to sensory breaks/movement activities, positive rewards, deep pressure and joint compression and visuals to reduce the student’s frustrations. (D-2) The DOE school psychologist testified that these sensory inputs were reported to the CSE as helpful to the student and as such were adopted by the team. (T-85) It is important to note that the student’s IEP does in fact contain a BIP to address . (D-1)

The IEP in this case is personalized to address the student's needs. The agency is not required under the law to maximize the student's potential. (A.C., 553 F.3d at 173, T.L. v. Dep't of Educ. of City of New York, 2012 WL 1107652, at *15 (E.D.N.Y. Mar. 30, 2012)) The agency is also not required to guarantee a specific level of benefit to the student, but instead, only to offer an IEP that is designed to offer the opportunity for greater than trivial advancement. (A.C., 553 F.3d at 173, Cerra, 427 F.3d at 195, Walczak, 142 F.3d at 130, Connor v. New York City Dep't of Educ., 2009 WL 3335760, at *5–*6 (S.D.N.Y. 2009)) The DOE has satisfied this standard. The record shows that the 6:1:1 special class and 1:1 crisis paraprofessional, utilizing the sensory strategies described above, could have addressed the student's sensory needs. The record is devoid of evidence indicating that the DOE would have deviated from the student's IEP in a material or substantial way. (A.P., 2010 WL 1049297, Van Duyn, 502 F.3d at822, T.L., 2012 WL 1107652, at *14, D.D.-S. v. Southold U.F.S.D., 2011 WL 3919040, at*13 (E.D.N.Y. Sept. 2, 2011) and A.L., 812 F. Supp. 2d at 502-03)

State regulations require that an IEP indicate the extent to which parent training will be provided to parents, when appropriate. (8 NYCRR 200.4[d][2][v][b][5]) State regulations further provide for the provision of parent counseling and training for the purpose of enabling parents of students with autism to perform appropriate follow-up intervention activities at home. (8 NYCRR 200.13[d]) Parent counseling and training is defined as “assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program." (8 NYCRR 200.1[kk] and 34 C.F.R. § 300.34[c][8]) However, Courts have held that a failure to include parent counseling and training on an IEP does not constitute a denial of a FAPE where a district provided "comprehensive parent training component" that satisfied the requirements of the State regulation. (C.F. v. New York City Dep't of Educ., 2011 WL 5130101, at *10 (S.D.N.Y. Oct.28, 2011), M.N. v. New York City Dep't of Educ., 700 F. Supp. 2d 356, 368 (S.D.N.Y. Mar. 25,2010), or where the district was not unwilling to provide such services at a later date. (M.M. v. New York City Dep't of Educ., 583 F. Supp. 2d 498, 509 (S.D.N.Y. 2008), but c.f., P.K. v. New York City Dep't of Educ., 2011 WL 3625088, at *9 (E.D.N.Y. Mar. 2011), adopted at, 2011WL 3625317 (E.D.N.Y. Aug. 15, 2011), R.K. v. New York City Dep't of Educ., 2011 WL1131492, at *21 (E.D.N.Y. Jan. 21, 2011), adopted at, 2011 WL 1131522 (E.D.N.Y. Mar. 28,2011))

The Second Circuit has held that “because school districts are required by State regulation to provide parent counseling, they remain accountable for their failure to do so no matter the contents of the IEP. Parents can file a complaint at any time if they feel they are not receiving this service.” (See R.E., 2012 WL 4125833) The Court further explained that "[t]hough the failure to include parent counseling in the IEP may, in some cases (particularly when aggregated with other violations), result in a denial of a FAPE, in the ordinary case that failure, standing alone, is not sufficient to warrant reimbursement.” (Id.)

Here, the DOE school psychologist who acted as the District Representative at the CSE meeting testified that “parent training” is “programmatic” to the recommended DOE placement. (T-64) Neither the Parent nor her advocate inquired about parent training at the meeting. (T-70) The Assistant Principal at the recommended DOE school testified that on Wednesday mornings they have “an assigned parent workshop.” (T-200) The speech department generates workshops based on parent’s requests and the “family worker” and “parent coordinator” do surveys of the parents for additional workshop topics. (Id.) Some examples of the workshops are “using the ‘PECS’ system at home”, “summer camp programs” and “Medicaid Funding.” (Id.) It is evident that the DOE school does provide “parent training.” As such, I find that the DOE’s failure to include parent training in the student’s IEP, does not rise to the level of a denial of a FAPE. (See R.E., 694 F.3d at 191; C.F., 2011 WL 5130101, at *10, M.N., 700 F. Supp. 2d at 368, M.M., 583 F. Supp. 2d at 509 and M.W., 2012 WL 2149549, at *13) As noted by the Court, the DOE “remain[s] accountable for its failure to [provide parent counseling and training] no matter the contents of the IEP” as required by State regulations. (See R.E., 2012 WL 4125833)

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] and 34 CFR 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 in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (Greenland, 358 F.3d at 160, Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004), Berger v. Medina City Sch. Dist., 348 F.3d513, 523-24 (6th Cir. 2003), Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 (1st Cir.2002]), Frank G. v. Bd. of Educ., 459 F.3d 356, 376 (2d Cir. 2006), Voluntown, 226 F.3d at 68 and Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007))

Here, the Parent testified that she had concerns “…that since they were using things from his progress report from the [private school name]…was the public school able to give those services as well, such as ….” (T-531) However, she did not state she advised the CSE team about the lack of “parent training” in the IEP. Neither does her “10 day notice” letter, written by the Parent’s advocate and dated June 18, 2012, advise the CSE of its failure to include parent training in the IEP. (P-E) The letter sates as follows:

Dear Chairperson,

This office has been asked to assist the parents of the above mentioned student in the matter of an appropriate placement for their child for the 2012-2013

school year.

Please be advised of the following: [student’s name] parent just received a placement letter and will visit this week to determine if it is an appropriate placement for [student name]. In the event that the program is not appropriate he will be attending the [private school name].

This will serve as a 10 day notice letter as mandated by Federal Law. The parent will enroll their child for the 2012-2013 school year in the [private school name].

They will notify the committee if the program placement is appropriate; and if they intend to enroll the child in the recommended placement.

If the recommended placement is not appropriate, an Impartial Hearing will be requested in order to secure reimbursement and/or direct payment for the child's tuition for the 2012-2013 school year at the above mentioned school.

This letter, however, is a 10 day notice and should not be treated as the Impartial Hearing request. We reserve the right to submit such Impartial Hearing requests as further circumstances necessitate.

Thank you. (Id.)

It is clear that the Parent’s “notice” letter does not raise the issue of “parent training.” Neither do her handwritten notes on the FNR address the issue. (P-D) It is only in the DPC complaint that the Parent raises the issue of parent training. Accordingly, I must find that the DOE did not receive proper notice of the Parent’s concern in this regard. What’s more, I find the Parent’s “10 Day Notice” letter deficient in that it discusses a potential “future” concern, and not the Parent’s concerns with the IEP or its development.

The Parent also asserts that the DOE’s “Positive Behavior Intervention System” (“PBIS”), a reward system, would not be understood by the student. (T-550) The private school social worker stated that “…behavioral rewards consequences have not proved to be sufficiently motivating…” for the student. (T-422) However, the PBIS is not the only behavior strategy to be employed by the DOE. The student’s behavior strategies and goals were largely adopted from his private school, where the student has progressed. (Supra) Additionally, the DOE recommended that the student be assigned a full time 1:1 crisis paraprofessional. (D-1) The law only requires the CSE to develop an IEP that is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) Based on the record before, I find that the DOE has complied with the requirements of the law and offered the student a FAPE for the 2012-2013 school year.

Having found that the DOE offered the student a FAPE for the 2012-2013 school year, the necessary inquiry is at an end and I need not determine whether the student’s private school placement is appropriate or whether equitable considerations bar an award on behalf of the Parent. (Burlington, 471 U.S. at 370).

NOW therefore, it is hereby

ORDERED that the Parent’s request for relief in her DPC and amended DPC is DENIED. DATED: August 2, 2013

_____________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer EDL;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

Number/Letter Title Dated For # of Pages

01 IEP 03/28/12 DOE 13

02 CSE FBA 03/28/12 DOE 02

03 CSE Review Minutes 03/28/12 DOE 06 04 School Progress Report 12/2011 DOE 13 05 Evaluation 01/25/11 DOE 05

06 DPC 10/03/12 DOE 04

07 Amended DPC 01/02/13 DOE 05

08 DPR 10/10/12 DOE 04

09 Amended DPR 01/09/13 DOE 04 10 Closing Statement 06/28/13 DOE 28 A Impartial Hearing Request 12/31/12 PARENT 06 B Program Description undated PARENT 03 C Mission Statement undated PARENT 01 D Final Notice of Recommendation 06/11/12 PARENT 02 E Ten Day Notice 06/18/12 PARENT 02 F Class Schedule 2012-2013 PARENT 01 G Progress Report 12/12 PARENT 08 H Progress Report 06/12 PARENT 14 I Summer Attendance Record 12/13 PARENT 01 J Attendance Record 12/13 PARENT 01 K Affidavit of Payment 02/06/13 PARENT 01 L Contract 06/06/12 PARENT 06 O Closing Statement 06/30/13 PARENT 28