New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: January 15, 2013

February 6, 2013

February 26, 2013

March 6, 2013

March 19, 2013

Actual Record Closed Date: May 6, 2013

Hearing Officer: Elise B. Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 15, 2013

Esq. Attorney for Parents — Student

Dr. District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 6, 2013

Esq. Attorney for Parents — Student

Dr. District Representative — DOE

IEP Coordinator — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 26, 2013

Esq. Attorney for Parents — Student

Mother — Student

Director (via telephone) — Student

Dr. District Representative — DOE

Dr. School Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 6, 2013

Esq. Attorney for Parents — Student

Mother — Student

Speech Therapist (via telephone) — Student

Speech and Language Pathologist (via telephone) — Student

Occupational Therapist (via telephone) — Student

Dr. District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 19, 2013

Esq. Attorney for Parents (via telephone) — Student

Dr. District Representative — DOE

INTRODUCTION: — DOE

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by the Parents (“Parents”) on behalf of ., the student (“Student”), through their attorney, , Esq. by filing a Due Process Complaint dated November 7, 2012.

The Parents are alleging that their daughter, , was denied a free and appropriate public education (“FAPE”) for the 2012-13 school year and are seeking tuition reimbursement or prospective payment for her unilateral placement at the (also known as “ ) for said year and reimbursement for the costs of the summer program

There were five days of hearings in this matter. Hearings were conducted on January 15, 2013; February 6, 2013; February 26, 2013; March 6, 2013; and March 19, 2013. Extensions were granted in this case making the final compliance date May 20, 2013. A list of Exhibits is attached as Exhibit A. The Parents and the District submitted exhibits.

BACKGROUND

This case involves a . During the 2012-13 school year, . attended where the Student was unilaterally placed by the Parents.

With respect to the 2012-13 school year, an Individualized Education Program (“IEP”) was developed on March 14, 2012. Pursuant to the March 14th IEP, the following recommendations were made:

1. Special Class, ELA, + (3:1), 15 times per week;

2. Special Class, Math, + (3:1), 15 times per week;

3. Speech-Language Therapy, , six times per week, 30 minutes each time;

4. Physical Therapy, , five times per week, 45 minutes each time;

5. Occupational Therapy, , three times per week, 45 minutes each time; and

6. Health Paraprofessional for . P-C

The District issued a Final Notice of Recommendation dated June 6, 2012. D-6. It stated that the offered school shall be , which is located , and that she would receive a special class in a specialized school, , and related services that include a health paraprofessional, Occupational therapy – individual, Physical therapy – individual, and Speech therapy – individual. D-6.

The Parents entered into an Enrollment Contract for the 2012-13 school year with on September 4, 2012. P-E.

POSITION OF THE PARTIES

District’s Case

The District called two witnesses, and placed seven (7) documents in evidence.D1—D-7.

The first witness was . She has both a Bachelor’s degree and a Master’s degree in special education and has both New York City and New York State certification in special education. She works at School ( ). Tr. 20. She is retired but held the position of unit coordinator for nine years and prior to that served as a classroom teacher. Tr. 21. Her present position is assistant to the administrator. Tr. 21. is a special education school with students from age 14 to 21. Tr. 25. As , there are the following special education programs: and and two inclusion classes at the local high school. Tr. 22. All teachers are licensed and are supervised by the assistant principals, principal and additional support staff. Ter. 23. The related services available at the school are and all related service providers are licensed. Tr. 24-25. In addition, parent training is offered. Tr. 27. All of the students have goals based on the common core curriculum for New York State. Tr. 26.

Ms. is not familiar with . however reviewed her IEP. Tr. 28. She indicated that the Student was recommended for the program and that there are a number of students in that program “who need transfers to the wheelchair and out and have some physical needs”. Tr. 29. She said there are students in the class with similar type needs. Tr. 29. Based upon .’s IEP, Ms. stated that her strengths are that she likes music and enjoys books and those are integrated into the classroom. Tr. 31. She stated that her weaknesses are on a cognitive level. Tr. 31. She indicated . does not have a mandated communication device on her IEP, however it is also noted that she has made progress using her Big Mac communication device. Tr. 32. Ms. testified that if . attended she would have been placed in a based upon her age and functional grouping and the number of paraprofessionals and wheelchairs that would be in the room. Tr. 32. She stated that if students have , they try to keep students safe according to their needs, but cannot . If they are , “they will not have them in…those kinds of situations”. Tr. 34. She also testified that she believed the was the least restrictive environment because the Student’s needs are adult driven in terms of activities of daily living and with four to five adults, she would get the assistance she needs. Tr. 36.

On cross, Ms. stated that there were four classes . could have been placed in and that there was a seat open in September but she cannot testify with respect to the specific class . would have been placed in. Tr. 41. Ms. also indicated that she based her determination of the appropriateness of the program on the evaluation results of the Vineland Adaptive Behavior Scales Two. Tr. 48. Ms. testified that whether she has a mandated device is based on the evaluation and whether she can manipulate a device enough to have one dedicated to her. Tr. 51. She testified that an assistive technology evaluation would be done in a situation like this to assess whether a communication device is needed, and one wasn’t done. Tr. 53.

The next witness was Dr. . She has a Master’s Degree in Education with a certification in school psychology and a doctorate in school psychology. She is a N.Y.S. licensed Tr. 78. She works for the District at the CSE Region and has been working for the District for six years. Tr. 79. She does approximately eight to ten CSE reviews a week. Tr. 79.

Dr. is familiar with since she was present at her March 14, 2012 CSE meeting. Tr. 80. She has never met the student. Tr. 88. The people who knew the student at the IEP meeting were the Parent, the Student’s classroom teacher and the director Tr. 81. The Student was classified as a child with and was recommended for a classroom setting with a health paraprofessional and related services and . Tr. 82-83. The paraprofessional designated for is there for which include , and . Tr. 84. Dr. doesn’t recall any disagreements regarding the placement recommendations. Tr. 85. The mandates on the IEP were driven by the related service providers. Tr. 86. The academic goals were provided by the classroom teacher. Tr. 87. Dr. testified that she believed that the setting was within the least restrictive environment since . has significant deficits in all areas – cognitive, academic, social, fine motor, gross motor, and self-care needs and requires the supervision program that will be able to assist her with all these deficits and improve her skills. Tr. 89. No other recommendations were considered for . at the CSE meeting. Tr. 90.

On cross, Dr. stated that she hasn’t been in a program in six years and is not sure whether it is comprised of all students. Tr. 93. She stated that, at the CSE meeting, they relied on the Evaluation conducted on January 3, 2012 (D-2), the Educational Progress report dated May 8, 2011 (D-2), the Progress Report dated January 8, 2012 (D3); and the Occupational Therapy Progress Report dated December 2, 2011 (D-4). They also had the folder of previous records like previous IEPs and other information. Tr. 96. They conducted a Evaluation prior to the meeting because the CSE review was a triennial. Tr. 97. They did not do an observation but considered the report as an observation. She was not sure whether they discussed that noise and the relationship between . Tr. 116. . She did not recall if the school provided modifications to address her inability , however, none were on the IEP. Tr. 122-123. There was also nothing reported on the IEP vis-à-vis and how long it takes her to get back on track after a seizure. Tr. 124. Dr. agreed that if the Student’s environment is not conducive to her seizures, this could affect her availability to learn. Tr. 125.

Dr. stated that the teachers reported that she communicated with and with the use of . Tr. 126; P-C. Based on this, she believed needed as assistive technology device. Although it was not on the IEP, Dr. indicated that it might not program to the classroom and they might need to see what particular device would be beneficial once the school year started. Tr. 129. She testified that there was no indication on the IEP as to what device might need, whether an assistive technology device was needed and whether a consultant teacher service was required to oversee the use of the communication device. Tr. 137. Parents’ Case The Parents called five (5) witnesses, , the Parent, and and placed seventeen

(17) documents in evidence. P-A – P-Q.

The first witness for the Parents was . She has a Bachelor’s degree in science and education and a Master’s degree in special education. Tr. 145. She was a general education teacher that targeted special education students in grades three through five and is also trained as a child advocate. Tr. 150. She does not have her N.Y.S. certification. Tr. 150. She is presently the principal/founder/director . Tr. 150. She is in charge of 66 staff members, the paraprofessionals, therapists and consultants. Tr. 151. It is a multisensory, very individualized program with 30 students in the whole program. Tr. 152; Tr. 157. Over the past year, the Student has gained a greater understanding of what is going on around her and she is expressing this through smiling, being happy and giggling. The Big Mac has given her both decision making power and communication ability. Tr. 154. They have also made adjustments to her feeding to give her more independence. Tr. 154. She has also improved her ADL skills in motioning for a utensil, or addressing what foods she wants, and utilizing the Big Mac . Tr. 156. Due to her seizures, they have her in the largest classroom with five students. Tr. 155. They have found that needs a very quiet environment in order to learn her skills. Tr. 155. They have a short therapy table in the room to help . go from a sitting to standing position. Tr. 156.

Ms. stated that they don’t really know what but they try to adapt by padding the doors so they don’t slam, opening the windows from the top so they don’t close down, and other modifications like that to keep the room quieter. Tr. 157. They provide therapy to her in the classroom and have her eat in there as well to avoid noise and transition. In addition, the bottom of the chairs have little rubber pieces to avoid scraping. Tr. 158. She also has aqua therapy in the pool with only one other student to accommodate her multiple disabilities and her seizures. Tr. 161. In addition, she also has applied therapy, music therapy, and behavior academic instruction. Tr. 162.

The related services that are provided are those listed on her IEP. Tr. 162. Although she receives set services, the therapists are frequently in the room so she is receiving therapy more than her mandated amounts. Tr. 162. She receives OT, three times a week for 25 minutes each time, , however, because there is always someone in the room for breakfast, snack and lunch, she is always receiving some form of therapy. Tr. 162. She is also receiving PT, five times a week for 45 minutes each time, one to one. Tr. 166. In addition another therapist is coming in and working with the OTs. She is learning to sit independently, can transfer from sitting to standing position, and from a wheelchair to a chair. Tr. 167. There is enough space in the room so that they can position her so that she is not in the wheelchair the entire day. Tr. 167. For , she sees a Speech therapist who is bilingual since . comes from a predominantly Yiddish speaking home. Tr. 167. is not speaking yet, but she is constantly exposed to both languages. The therapist is also working on the Student’s feeding skills. Tr. 168.

There are five students in the room, two co-teachers and each student has their own one-to-one paraprofessional as well as related service providers. Tr. 163.The only time everyone is in the room is during circle time because the students go to the cafeteria for lunch and go to other places for their related services. Tr. 164. One of the co-teachers is licensed, though not in New York and the other is not. There is also a third teacher who is there in the afternoons and she is New York Stated licensed. Tr. 165. All of the paraprofessionals are health paras. Tr. 166.

In terms of tuition, the Parents have not paid tuition and have not been offered any financial assistance. Tr. 168. This is the Student’s fourth year attending the school. Before readmitting a student, the school assesses whether the program continues to be appropriate for the student and whether they have met their tuition commitment. Tr. 168. If the Parents choose the District’s placement, they are given the opportunity to back out of their contract. Tr. 169. At this time, there are no services that are provided that are religious in nature although she is exposed to the holidays and Shabbat and they sing some prayer songs in circle time. Tr. 170.

On cross, Ms. Dembicer stated that she assesses a student . at the beginning and end of the year by reviewing the previous reports and by doing an onsite evaluations. Tr. 171-172. She reviews what the student has mastered and what he/she is still working on. Tr. 172. They have a meeting two or three times a week with the therapists to see where the student is at and what the next steps are. Tr. 173. Ms. stated that all of her providers submit goals at the CSE meetings and also share their progress reports. Tr.

174. All of the related service providers are licensed including the , Occupational therapist, Physical therapist, feeding therapist and aqua therapist. Tr. 177.

The next witness was the Parent. was born as a normally developing child and at the age of four and a half, she became ill. They misdiagnosed her when she had . As a result of her illness, . Tr. 185. They were informed after the surgery that she had . She lost the ability to do everything including . Tr. 187. During 2007 and 2008 she attended The Department of Education funded both programs. Tr. 188.

The Parent testified that when hears a noise . She stated that or just ; she . Tr. 189. She said that any . Tr. 189. To address at home, they prepare her before they make a noise. There are three other children and they are aware .’s sensitivity to noise. Tr. 190. They also put special doors on their cabinets to lessen the noise. Tr. 191. At school they put her in a large classroom with a very small number of students, they pad all the doors, and they prepare her, like the Parents do at home. Tr. 191-192.

The Parent testified that the March 14th CSE meeting took less than ten minutes. Tr. 193. The CSE team was aware that she had a startle reflex and they recognized that she but they did not recommend any accommodations or modifications to address this. Tr. 194. She felt that they simply made the same recommendations as the year before and copied over the details. Tr. 194. They did ask her and the Parent indicated that she was but it wasn’t helping her. Tr. 195. The Parent testified that both Mr. and Ms. objected to the placement. Tr. 196. The Parent visited the recommended placement twice, once in the summer and once in the fall. She stated that in the summer there were two classes and the students were all much higher functioning than her.

The Parent went back in the Fall and went into another classroom setting. During the time she was visiting the classroom, the students were working on a Smart Board, involved in a cooking class and participating in a classroom sale. Tr. 199. She felt that her daughter would not be able to do any of the activities because she was so low functioning. Tr. 200. There was another class where there was one or two lower functioning children but they were doing nothing and receiving no stimulation while the other children were exercising. Tr. 200.

During the summer, attended , a six or seven week program in upstate New York. Tr. 202. Although she is eligible for a 12 month program, her Parents sent her to so she could feel like a “normal child” and be outdoors. Tr. 202. It is a one-to-one setting. Tr. 203. The Parent is slowly paying the camp tuition, $1000 each month for a total of $12,000. P-P; Tr. 204.

The Parent testified that she has seen progress with . in connection with communication since she is consistently using the Big Mac. Tr. 206. The providers have also noted her progress with the Big Mac and she is also using it a home. The Parent visits the program frequently and carries over what is being done in school at home. She stated, “I give a lot of credit , they are just always stimulating her and always providing her different ways that…she can learn”. She has just started standing and wants to stand all the time. Tr. 208. She also can now hold a fork or spoon and eat soft foods with minimal guidance. Tr. 212. Academically, she is at a very low level and is trying to learn numbers, colors and shapes. Tr. 213.

The tuition is $135,400. The Parent indicated that they have not paid the tuition since her husband lost his job and is getting unemployment benefits. Tr. 209.

The next witness was She is a New York State licensed pathologist. She has a Master’s Degree in communication disorders and her clinical competence certificate from the American Association. Tr. 215. She has a bilingual extension in Yiddish. She has taken extended courses in PROMPT, , communication. Tr. 217. She has been for four years and has worked with and also with typical children. Tr. 218.

Ms. testified that she has worked as . for the last four years. Tr. 218. Ms. described , with and and to meet her needs. Tr. 219. The services she provides for her include increasing and maintaining her . She also works with her to try to get her to be able to communicate with those around her. Tr. 219. She times a week and Ms. another Speech pathologist . twice a week. Tr. 219. Ms. communicates with teachers daily. Tr. 220.

Ms. stated that . When this occurs, she becomes unavailable for what is going on around her. Tr. 221. In order to , Ms has padding on her door and keeps the doors closed to . She also tries to make sure they work and that she is engaged because this . Tr. 222.

Ms. testified that she utilizes a Big Mac device with ., which is a single message device that she has access to by pressing on it. Tr. 222. She testified that she is initiating movement with her hand to touch the Big Mac and has shown a significant increase in her consistency in using the device. Tr. 223. They give her two choices, and she will touch the button of the item she wants. Tr. 225. They change the buttons throughout the day so she will have different choices. Tr. 226. She has made progress in her consistency and now she has begun to hover her hand near the button she wants. Tr. 228. In the self-care domain, . is making progress with . She is also more . Tr. 230.

Ms. does not feel that a would be appropriate for because of the noise factor and her need for a smaller educational setting and constant one-to-one support. Tr. 232.

The next witness was . She is a certified pathologist and a certified assistive technology practitioner. Tr. 241. She has worked as a for the past two years. Tr. 242.

She is familiar and is presently working with her. Tr. 242. She described her as . She . Tr. 243. . uses two Big Macs. Ms. created a big framework due to ’s so it would be easy for the Student to access a red switch on one side and a yellow switch on the right. The color coding was to help deal since she is . Basically, if she touches one of the Big Macs, it will say a word and they will change the choices based on the activity. It can say “drink”, “eat”, “try”, etc. She has a button for music and the buttons have different textures. The framework was built because it funnels her hand into the right place and with her uncontrolled movements, she wouldn’t be able to access the buttons . Tr. 245. Ms. also has created Tobies or raised photographs which they cut and put on a high contrast background so she can see that she is touching the appropriate item. Tr. 246.Ms. is also working . so that she will associate a texture with food and a texture with music and she is progressing and is getting it correctly eighty percent of the time. Tr. 247.

Ms. works with the Student individually and with the classroom staff, making sure the device gets integrated into her daily use. Tr. 248. She is not a child that can use any classroom device due to her . The device has to be adapted for her. Tr. 248. If she did not have a augmentative system like this, she would have no way of communicating. Tr. 249.

On cross examination, Ms. said that she has worked as pathologist for 36 years and is the person that set up the DOE’s assistive technology teams approximately 14 years ago. Tr. 250. She also said that . might be able to use another single message device, however, the Big Mac has a big platform and the others are smaller. In addition, due to her cognitive issues, she would not be able to manage any of the high end computerized devices. Tr. 252.

The last witness was . He is a New York State certified and licensed Occupational therapist. Tr. 255. He has an Occupational therapy degree, a Master’s degree in education and a school building/district leader degree. He has for four years as Clinical Director and prior to that had varied private school, public school and private practice experience. Tr. 256.

Mr. is the Student’s occupational therapist and has been providing services to her for four years. Tr. 258. He provides services to her three times a week for 45 minutes each time, however, because he is full time he goes into the classroom when there are sensory motor and other activities going on in the classroom. He also provides adaptations, modifications, consultation and/or added therapy on a daily basis as needed. Tr. 259.

Mr. stated that to noise specifically the click of , a , etc. She startles from the noise, then her body goes into extension and that is how presents. Tr. 260. The modifications they have made at for a gentler closing; providing with a separate location in the classroom where she has an environment that has control for noise and/or sound; small class size, large classroom to control for noise; adding cushioning to door jams.

Mr. testified . receives a customized therapeutic listening program which is geared towards improving the perception of sound so . will not have behavioral reactions . Tr. 263. Mr. indicated that she has made progress since she no longer when one of her . Tr. 263. In addition, at school she’s more focused and more tolerant of certain sounds and is able to follow through with the activities at hand. Tr. 263. Prior to the listening program, there was a need for medication when she had a seizure that was beyond five minutes and this is no longer necessary. Tr. 264.

In her mobility, Mr. uses the Program which is an activity based type of motor exercise regimen. Tr. 264. In terms of self-care, this program has helped to enable . to keep her hands down for functional purposes. Tr. 266. In terms of her ability to self-feed they have given a tremendous amount of attention to helping her participate more independently. The teachers, paras and therapists are all trained in helping her from behind with the motions that are required for bearing techniques by having her sit at the edge of the plinth and also promoting her to have a . Tr. 267. They also utilize the Big Mac with the Student so that she can communicate and make choices. Tr. 269. Mr. testified that she has made progress with the Big Mac and it has enabled her with and to . Tr. 269.

Peer play for the Student involves her communicating through her Big Mac that she wants a ball passed to her and then she will pass it back. Mr. said that in terms of play, she has shown an increased ability to be aware of her body parts and use them to illustrate her awareness. Tr. 271. At the listening center, they may be doing an activity while giving her messages and actively engaging her by asking for her hand, her leg, her head, etc. Tr. 271.

In connection with the March 14, 2012 CSE meeting, Mr. stated that the meeting was brief and he described the level of care that required to be successful. Tr. 273. At the meeting, Mr. asked that certain adaptive equipment be recommended for R.P. including a device to help her sand called an Up-and-Go and a Rifter chair and was told that these could not be put into the IEP because they are considered furniture. Tr. 274. He stated that they use the items . Tr. 277. Mr. was aware that the IEP did not recommend a specific augmentative device, and felt strongly that without the Big Mac or a similar device, . would lose her freedom.

Mr. stated that the recommendation was completely inappropriate due to the level of care she requires and her need for a quieter, smaller classroom environment. He specifically stated that the placement would be a “recipe for failure for her, and I think it’s completely unhealthy. It would send all day long. It’s just - - it’s cruel and it’s unusual, and it’s a punishment rather than an environment for learning”. Tr. 276.

FINDINGS

Two purposes of the 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 individual 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. 1499[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]).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in School Committee of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]). Issue 1-Appropriateness of District Program

The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d at 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 F3d 165, 172 [2d Cir. 2009] Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 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 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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dept of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; 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]).

A school district offers 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). However, 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, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citation omitted]; see, Grim, 346 F.3d at 379). Additionally, 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). Nonetheless, 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, 427 F.3d 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]; Perricelli, 2007 WL 465211, at *15). 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 (20 U.S.C. §1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; 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]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dept. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see, Application of the Dept of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dept of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

I have reviewed all of the testimonial and documentary evidence in this matter. Clearly the central issue is whether the District provided the child with FAPE for the 2012-13 school year when it convened its IEP meeting on March 14, 2012. The CSE recommended a 12:1:4 program with related services and a heath paraprofessional. I find the proposed placement inappropriate for . She has been classified as as a result of a and is to meet her needs. In addition, which results in , which is precipitated by common environmental , etc. Even the District’s psychologist in her January 4, 2012 report stated that “she presents with in all areas of functioning, including cognitive, …and [is] estimated to fall within the Mentally deficient range of intelligence…” D-5.

The District failed to meet its burden to show that the March 14th IEP that was developed for the 2012-13 school year was reasonably calculated to enable R.P. to receive academic benefit. First, although startle reflex and seizures are mentioned in the Physical Development section of the IEP, no modifications or accommodations were provided to deal with this. P-D. Even Dr. , the District’s witness and a member of the March 14th CSE team testified that if the Student’s environment is not conducive to her , this could affect her availability to learn, however, she didn’t recall a discussion of this at the CSE meeting. Tr. 122. It is clear from the record that the District was made aware at the meeting by Dr. and the classroom teacher that a small, non-distracting environment with accommodations for noise is required in order for the Student to be able to receive educational benefit, yet it does not appear that smaller and/or other more restrictive programs were considered. P-C; Tr. 100. The fact that none were considered indicates that ’s individualized needs were not considered in making this placement recommendation. Dr. testified at the hearing that based on the Student’s need for a quieter, smaller classroom environment, that the placement in a class was “a recipe for failure for her” and “would send her .” Tr. 276. Furthermore, in deciding should be in a class rather than a smaller class, Dr. stated that they based it on information they received from the providers and the teachers at the CSE meeting, yet, she was not aware of what her how many students were ’s class at but she said it would be typically something that would be important to consider when making a placement recommendation. Tr. 101-102. Ms. who had never and was not present at her CSE meeting, stated that if the Student is sensitive to noise, they will not “have her in those kinds of situations”. Tr. 36.

Although it is clear on the IEP . is using a communication device called the Big Mac, she is not mandated to receive this device on her IEP. Based on the testimony and the information regarding the Big Mac, it is clear that other than facial expressions and gestures, the Big Mac is her only means of communicating. Ms. testified that she is not a child that can use any device due to her motor, visual and cognitive needs, and the specific device must be further adapted to meet her needs or she wouldn’t be able to use it and would have no means of communicating. Tr. 248-249. In this regard, Ms. indicated that in order to mandate a particular device, an assistive technology evaluation would need to be done and none was conducted in this circumstance. Tr. 53. In addition, although other adaptive equipment was requested to enable her to have some mobility, and give her the ability to stand, now were included in the IEP, nor were they mentioned. Tr. 274.

In terms of the site, Ms. did not know what class . would have been placed in if had attended , however, she would be placed based on her functional grouping and age and the number of paraprofessionals and wheel chairs in the room. Tr. 32. The Parent indicated that the and functional levels of most of the students she observed in the classrooms were . and the activities that they were engaged in, were not appropriate for R.P. Tr. 200.

For all of the foregoing reasons, I find that the District did not provide FAPE to R.P. for the 2012-13 school year. Hence it is necessary to consider Prongs 2 and 3. Issue 11-Appropriateness of Parental Placement

Under the second prong of Burlington, the Parents bear the burden of proving the appropriateness of the services they seek In order to meet that burden, the Parents must show that the offered an educational program designed to .’s special education needs. Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112. “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). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010). . It should be noted, however, that while evidence of progress is relevant, it does not in and of itself establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”])

The Parents have met their burden in showing that was an appropriate placement . and is designed to meet her individualized needs. Testimony has been provided to indicate that the small class size and large classroom allows for her to be able to adapt to , etc. Tr. 157. These accommodations are mandatory in order to meaningfully . In addition, the Student does most of her therapy in the classroom and has lunch there as well in order to and transition . The program involves intensive and involvement of therapists, teachers and staff has enabled the Student to make progress. There are five students, two co-teachers and a paraprofessional for each student. Tr. 163. The therapists and the teachers meet two or three times a week formally to assess progress, however, informally communicate on a daily basis. The Big Mac has both decision making power and communication ability and she is using the device with more consistency. She is also able to enter into peer play situations with the other students in her class through the use of the device and is able to engage in activities like circle time with the one on one support. Tr. 271. She has also improved her ADL skills and is able to use utensils with support to feed herself. In this regard, through , she has increased her . Tr. 158. Through physical therapy, she is able to sit independently and is learning to transfer from a sitting to a standing position. Tr. 167. Since she comes from a bilingual home, she is exposed to both English and Yiddish. Tr. 167. She is also receiving a therapeutic listening program which is geared towards improving her perception of sound so that she will not have these maladaptive behavioral reactions. Tr. 263. Mr. indicated that she has made progress with this program and this tolerance for sound has enabled her to follow through with her school activities. Tr. 263. In addition, he is using an exercise program with her which has enabled her to keep her hands down for functional purposes and the weight bearing techniques have enabled her to have a sustained grasp on utensils Tr. 267.In music therapy, she is localize sound and swat at musical instruments with less assistance. P-I. The aqua therapy also helps her with her mobility issues. The Parent testified is constantly . and finding ways in which she can learn. She is presently working on learning numbers, shapes, and colors. Tr. 213. It should be noted that she does not receive religious instruction at this time, however songs and prayers are sung in circle time and Jewish holidays are celebrated. Tr. 170.

The District offered no evidence to rebut the Parents’ testimony in regard to the appropriateness .

Based on the foregoing, it is clear that is providing with instruction specially designed to meet her unique needs and she is benefitting from the instruction and receiving educational benefit. Therefore, I find the Parents have met their burden in proving the appropriateness of

With respect to the summer program , Inc. for the summer of 2012, no evidence was provided to indicate that it was appropriate to meet ’s needs, and no evidence was provided with respect to the therapies that . would receive at the program. In fact, the Parent testified that although . is eligible for a 12 month program, they sent her so that she can experience camping like a normal child and be outdoors. Therefore, reimbursement for program is hereby denied. P-Q; Tr. 202. Issue III-Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents never inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 USC 1412 (a)(10)(C) (ii).

In New York, the award of tuition may be made prospectively if the family cannot afford to pay and seek reimbursement. Connors v. Mills, 34 F Supp. 2d 795 (NDNY

1998) and 20 USC 1412 (a)(10) along with all costs and fees. I have reviewed the family income tax return for 2010 and the testimony of the Parents with respect to their financial circumstances and it’s clear that the Parents are entitled to prospective payment

I find that the Parents participated in the March 14th 2012 CSE meetings . They included the staff from Ezra into the CSE meeting. After receiving a Final Notice of Recommendation, the Parent visited the program on two separate occasions and expressed her concerns and notified the District of her intention to place Based upon their actions, in terms of equitable considerations, I find that the Parent cooperated with the District and analysis of equitable considerations offers no basis to rule against them.

Based upon the foregoing, I find that the District did not provide FAPE to the 2012-13 school year (Prong 1), the Parents placement of is appropriate ( Prong 2) and the Parents cooperated with the District and analysis of equitable considerations offers no basis for ruling against them (Prong 3). Accordingly, the District shall continue to make payments to for the remainder of the 2012-13 school year so that the tuition in the amount of $135,400 for the 2012-13 school year which represents the full tuition, related and additional services plus costs and fees associated with placement shall be paid in full. For the summer of 2012, the Parent is not entitled to reimbursement for the summer program .

ORDER

Based upon the foregoing, it is hereby

ORDERED, that:

The District shall continue to make payments for the remainder of the 2012-13 school year so that the tuition in the amount of $135,400 for the 2012-13 school year which represents the full tuition, related and additional services plus costs and fees associated with ’s placement shall be paid in full. Dated: May 20, 2013

_______________________________

ELISE B. KESTENBAUM, ESQ.

Impartial Hearing Officer

EBK: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 IN TO THE RECORD ON JANUARY 15, 2013

PARENT

No. Date Document Pages A 2/14/2012 B 11/7/2012 Impartial Hearing Request 6 C 3/09/01 SRO Decision 4 D 8/16/12 Notice of Rejection 4

DOCUMENTATION ENTERED IN TO THE RECORD ON FEBRUARY 6, 26, MARCH 6,

AND 19, 2013)

A 8/16/2012 Notice of Rejection 4 B 11/7/2012 Impartial Hearing Request 6

C 2012-13 IEP 16

D 2/14/2012 E 9/4/2012 Tuition Contract 4 F 2012-13 Attendance Record 1 G 2012-13 Description of Program 2 H 11/21/2012 Assistive Technology Progress Report 4 I 11/28/2012 Music Therapist Report 1 J 11/21/2012 Progress Report 3 K 12/10/2012 Progress Report 2 L 12/10//2012 Physical Therapy Report 3 M 1/9/2013 Letter to CSE 6 4 N undated Subpoena 3 O 5/3/2012 2010 Tax Form 2 P 1/30/2012 Tuition Contract 1 Q 3/2012 Itemized Invoice 1

DISTRICT

No. Date Document Pages

1. 11/4/2011 Three Year Re-evaluation Letter 1

2. 5/8/2011 Educational Progress Report 4

3. 1/8/2012 Progress Report 2

4. 12/2/2011 Progress Report 3

5. 1/4/2012 Evaluation 4

6. 6/6/2012 Final Notice of Recommendation 1

7. 3/14/2012 Recommendation of Deferred Placement 1