Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 1, 2013

March 14, 2013

April 11, 2013

May 7, 2013

Actual Record Closed Date: July 18, 2013

Hearing Officer: Rona Feinberg, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 1, 2013

Esq. Attorney Department of Education

Esq. Attorney Mother Father School Psychologist Department of — Parents

(via telephone) Education Educational Administrator Department of

(via telephone) Education

NAMES AND TITLES OF PERSONS WHO APPEAREDON MARCH 14, 2013

Esq. Attorney Department of Education

Esq. Attorney Mother Father School Psychologist Department of — Parents

(via telephone) Education

Unit Coordinator Department of

(via telephone) Education

Dr. Head of School — Parents

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 11, 2013

Esq. Attorney Department of Education

Esq. Attorney Mother Father — Parents

Teacher — Parents

(via telephone)

Dr. Psychologist — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 7, 2013

Esq. Attorney Department of Education

Esq. Attorney Mother Father — Parents

Dr. Psychologist — Parents

(via telephone)

INTRODUCTION

On March 1, 2013, March 14, 2013, April 11, 2013 and May 7, 2013 this hearing officer conducted an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, . (“the child”). The hearing commenced at 10:09 a.m. 10:00 a.m., 9:10 a.m. and 10:00 a.m. respectively, and was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

The child, who is classified as having , is months old and is independently placed at the ”). In a letter dated August 27, 2012, the child’s parents by their advocate , filed a due process request (“Request”) for an impartial hearing. In that Request the parents maintained that the Department of Education did not offer the child a Free and Appropriate Public Education (“FAPE”) for the 2012-2013 school year. It alleged that that the Individualized Education Program (IEP) was procedurally and substantively flawed and that the program recommendation was not adequate to meet the child’s needs. The Request also alleged that the Committee on Special Education (CSE) failed to make a timely or appropriate placement by June 15, 2012 as evidenced by the Nickerson Letter dated August 13, 2013 that the parents received in the mail with the final notice of recommendation (FNR) (Parents’ Ex. A). The parents asked that the Department of Education be ordered to reimburse them for the portion of tuition they paid thus far for the 2012-2013 school year and to pay the outstanding amount of the tuition directly to Cooke. They also requested that the Department of Education be ordered to reimburse them for the cost of an independent evaluation by Dr. . In addition they asked for reimbursement for any related services they had to provide to the child during the 20122013 school year and for bus transportation to and from ; both of these requests were withdrawn at the impartial hearing (Parents’ Ex. A; Hearing: 423).

The Department of Education did not file a response to the impartial hearing request.

This hearing officer was appointed as the Impartial Hearing Officer in this case on November 28, 2013. The original compliance date was February 11, 2013. On January 7 2013, at the request of both parties due the availability of witnesses the compliance date was extended to March 6, 2013 and a hearing was scheduled for March 1, 2013. A prehearing conference was held on January 15, 2013. At the conclusion of the hearing March 6, 2013 and at the request of both parties due to the availability of witnesses the compliance date was extended April 5, 2013 and a hearing was scheduled for March 14, 2013. At the conclusion of the hearing on that date and at the request of both parties due to extensive testimony and issues the compliance date was extended to May 5, 2013 and a hearing was scheduled for April 11, 2013. At the conclusion of the hearing on that date and at the request of both parties due to the availability of witnesses the compliance date was extended to June 4, 2013 and a hearing date was scheduled for May 7, 2013. At the conclusion of the hearing on that date and at the request of both parties for the receipt of the transcript and the preparation of briefs the compliance date was extended to July 4, 2013. On June 5, 2013 at the request of the parents for review of the briefs and the issuance of a Decision and Order the compliance date was extended to August 4, 1013.

All of the extensions in this case were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations.

THE PARENTS’ POSITION

The parents were represented at the hearing by their attorney, , Esq. The parents alleged that the Department of Education did not provide a placement for the child in a timely manner by June 15, 2013 and that they did not receive a Nickerson Letter until on or about August 15, 2013. They also alleged that the Department of Education did not provide the child with a FAPE for the 2012-2013 school year, was an appropriate placement for the child and that the equities support the parents. In addition, the parents maintained that the Department of Education was required to pay for the independent evaluation by Dr. because it did not conduct its own evaluation during the process.

THE DEPARTMENT OF EDUCATION’S POSITION

The Department of Education was represented , Esq. The Department of Education maintained that it provided the child with a FAPE for the 2012-2013 school year, that was not appropriate for the child and that the equities of the case favor the Department of Education. The Department of Education also maintained that it was not responsible for the cost of Dr. ’s evaluation.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Findings of Fact indicated below are based on relevant testimony of the witnesses who appeared at the hearing.

The Department of Education presented four witnesses. has a Master’s Degree in school psychology and is a bilingual school psychologist. She is a certified school psychologist (Garcia-Dailey: 85). has an undergraduate degree in psychology and Master’s Degrees and licenses in both special education and school supervisory and district administration. She is currently works for the Department of Education as an educational administrator for the Central Based Support Team (“CBST”) ( : 15-16). ). , Ph.D., has a Master’s Degree in educational psychology with a specialty in “psycho educational and reading disabilities.” She has a six year certificate in school psychology and an advanced degree in administration and supervision with certification in teaching the ” administration for . She also has a doctorate in : 32). Dr. has state certification as a special education teacher, a school psychologist, a reading specialist, a teacher of children with and is a New York State licensed psychologist ( : 32-33). has a Master’s Degree in special education and has certification in special education ( : 156-157).

The parents presented five witnesses. is the child’s mother. psychologist in New York State ( : 282-283). , Ph.D, has Master’s Degrees in special education and school psychology and a doctorate in psychology. She has New York State certifications as a school psychologist and as a teacher for grades pre-K through six ( : 174). has a Master’s Degree in early childhood general and special education ( : 211; : 228). He had completed all of the requirements for state certification in early childhood special education but the “paperwork” has not yet been completed ( : 212; : 229). is a New York State licensed clinical psychologist ( : 334-335). THE DEPARTMENT

OF EDUCATION’S CASE

Last year the child was child on caseload. On January 2, 2011 she observed the child in his in his preschool classroom. The child had a 1:1 paraprofessional. He was doing an Applied Behavior Analysis (ABA) type lesson that used a reward system when the child responded correctly. During that lesson the child was easily distracted and required a lot of redirection and prompting. The child also needed someone to “sort of touch his shoulder” during a movement activity to keep him focused. ( : 87-90; Department of Education (DOE) Ex. 2). The child’s teacher told Ms. that the child had a lot of . The child was not engaging in spontaneous conversation in the classroom and was using phrases that he had learned. Ms. testified that the teacher told her that that she believed the child would need a District program for children with - 91-92; DOE Ex. 2).

Ms. did a social history update on March 22, 2012 ( : 87-88, 92; DOE Ex. 8). At that time told Ms. that she was having a neuropsychological evaluation conducted. After reviewing the neuropsychological evaluation Ms. determined that no further testing was required and the Department of Education did not conduct any of its own evaluations ( : 99, 122-123). Ms. testified that a setting would be too large for the child and acknowledged that a program without an additional one-to-one paraprofessional would not provide enough support for the child ( : 147-148).

Ms. conducted an IEP meeting for the child on April 25, 2013 ( : 93; DOE Ex. 15). The child’s parents participated in the IEP meeting as did the child’s teacher, the psychologist at the preschool, the special education supervisor at the preschool and the parents’ advocate ( : 95-96). The parents provided a neuropsychological report. Ms. prepared a “draft IEP” based on that report, the observation, her discussion with the child’s teacher and the progress reports from the child’s providers; she showed her copy of the draft IEP to the child’s parents but did not provide a copy of the IEP to the parents or any of the other participants at the IEP meeting ( : 93-94, 99, 101-103, 122-124; DOE Exs. 12, 13, 14).1 ). The parents were not provided with a copy of Ms. observation and neither the parents nor the other members of the CSE team were given copies of the progress reports ( : 139-140). Ms. did not provide a copy of the neuropsychological report to the members of the IEP team and she did not know if those members were aware of the report ( : 125).

The neuropsychological evaluation showed that the child’s current level of intellectual functioning was in the “borderline” range (functioning at least three years below his chronological age) and that the “more verbally laden subjects were more difficult for him.” The evaluation also indicated that the child was “ ” even in a situation, that he was , that he did not engage in creative play and that interacting with others “outside his own circle” was difficult. His visual-spatial skills and his quantitative reasoning were areas of strength ( : 100-101Parent’s Ex. F). The report indicated that the child would no longer benefit from ABA instruction ( : 145-146; Parents’ Ex. F at 13-14).

wanted to know the kind of programs that were available. She stated that she was looking at private schools and that she submitted an application for the program but had not heard back ( : 97-98, 115, 153). The is for children on the autism spectrum but is not a District program. observes children and if it thinks a child would benefit from the program the program issues an “invitation” for the child to participate ( ” 115).

The goals on the IEP were “basically” developed from the goals on the child’s Committee on Preschool Special Education (CPSE) IEP, the progress reports and the neuropsychological evaluation. If the child did not meet a particular goal on the CPSE IEP that goal was “carried over.” The parents asked about parent support programs, looked over the IEP and asked if speech services could be increased to the five times a week individually which was what the child was receiving at his preschool. Ms. testified that she “discussed” the IEP goals at the meeting ( : 108-109, 123). On crossexamination Ms. acknowledged that she did not review each of the goals on the IEP by reading them and having a discussion about each specific goal ( : 148).

Ms. believed that the child met the qualifications for a District school because he has an and all of the behaviors and interventions he needs are part of the services that

Citations to pages 122-152 refer to Ms. ’s cross-examination of Ms. could be provided within that setting. However, the child’s parents, teacher and preschool staff believed that a private school setting would be more appropriate for the child ( : 109-110-111, 129, 137-138).

No minutes were taken at the meeting ( : 138-139). At the conclusion of the meeting and after a discussion with her supervisor Ms. deferred the case to the CBST for a non-public school placement ( : 113-114, 125-127; : 18). The recommended related services were individual speech and language therapy five times a week for 30 minutes, individual physical therapy twice a week for 30 minutes and occupational therapy three times a week for 30 minutes ( : 118-119; DOE Ex. 15 at 13). The program recommendation on the IEP was for a class “to leave it open” in case the child was accepted into the . She “believed” that the was but was not sure, which is way the IEP remained in draft form ( : 126-127; DOE Ex. 15 at 13).

Some time in June 2012 Ms. contacted to request that the program send someone to observe the child. She did not know whether the program ultimately observed the child but knew that the parents had visited the program ( 135). Ms. Garciadid not know whether the sent a letter to the parents accepting the child she never received formal notification of an acceptance ( : 136,150). However, she testified that someone from the Department of Education involved in the Horizon program told her at “the end of June” that notified the parents that it was accepting the child but that the parents rejected the offer because they did not believe it was an appropriate setting for the child; Ms. did not ask that person if someone from had observed the child ( - 116, 134136, 142-1445). She also testified that she “believed” she spoke to the child’s father who said that the parents did not believe that could meet the child’s needs ( : 144).

The CBST received the child’s file in May 2012. reviewed the file and concluded that the child did not require a non-public school setting in that his needs could appropriately be met in a District program for children . On May 14, 2012 she informed the CSE that she would not be accepting the case ( : 129-131, 149; Carducci: 20-21; DOE Ex. 16).

In June Ms. submitted the case to be reviewed by the CSE during the summer session ( : 151). Ms. was aware that must be placed by June 15th and that the child was not placed by that date ( : 140-141). She explained that the case was not submitted earlier because she was waiting to hear whether the child was accepted into the program; if accepted, she would have reconvened the CSE to offer Horizon on the IEP ( - 141, 149).

In July 2012 Dr. was assigned to reconvene the IEP meeting in order to change the program recommendation and find an appropriate placement within the Department of Education that would provide the child with a FAPE ( : 34-35, 46, 48, 54; : 149).2 The meeting was held on July 11, 2012 (DOE Ex. 19). The participants at the meeting were an IEP teacher, a general education teacher, and a special education teacher all from the Department of Education, advocate ( : 36). Dr. did not recall whether she reviewed any of the goals on the April 25th IEP or whether she reviewed any reports or the neuropsychological evaluation ( : 47-50). KM brought updated progress reports but they were “not really different” from the April 25th IEP ( : 55-56).

and her advocate did not think ABA was appropriate for the child; an IEP does not recommend a particular methodology. Rather the methodology used for a particular child would be “highly individual” depending on the child’s needs and the placement ( : 44-45, 50-51). The District program does not use ABA but uses TEACCH , which is different from ABA and does not use a “token economy.” TEACCH is “highly tailored” to the individual child ( : 51).

There was a general discussion about the child’s needs at the meeting and Dr. explained why the recommended 6:1:1 program in a District met his needs ( : 37-38, 43-44, 49; DOE Ex. 19). The program is specialized and “highly structured” and the “people” who work in the program are trained to work with children on the autism spectrum ( : 37-38). No one at the meeting objected to the recommended program ( : 38). stated that she did not object to a Department of Education program but that she wanted to make sure the other students in the class has similar needs and were not “acting out” ( : 38-39).

Citations to pages 46-60 refer to Ms. ’s cross-examination of Dr. .

’s advocate asked that the “alternate assessment” recommendation on the April 25th IEP be removed. Dr. went into SESSIS and changed the assessment to “standardized measures.” At that point all of the short term goals on the IEP were removed as well since short term goals relate only to alternate assessments ( : 41-42). After a “lengthy discussion” with about the child’s social emotional needs and after “looking” at the IEP, Dr. added counseling to the child’s IEP in order to provide the child with “more assistance and some socialization” ( : 42-43). Dr. also added a goal to the child’s IEP that was centered on socialization and the use of language ( : 43; DOE Ex. 19 at 9-10).

The parent was not given a copy of the IEP at the end of the meeting. Dr. took and her advocate to the supervisor and explained that the IEP would have to be mailed to her the next day because the meeting was held at P.S. 104 and there was a logistical problem with the printers. discussed her concerns about placement with Dr. and she spoke to the supervisor as well ( : 59). The clerical person who sends out the IEPs told Dr. that it had been sent out ( : 59-60).

The FNR dated August 13, 2012 recommended a placement for the child at has been the unit coordinator at the school for five years ( : 158-159; DOE Ex. 20). For the 2012-2013 school year the only program offered at the site was a for students on the . The program is in six classrooms on the fifth floor of a general education elementary school building (Root: 159, 161-164). The rest of the fifth floor classrooms are for the general education students. The general education program has six or seven hundred students in all (Root: 162, 164).3 The program shares the lunchroom with the general population for breakfast but it has its own designated lunch period (Root: 165). There were three kindergarten classes for the 2012-2013 school year, one class for grades one and two, one class for grades three and four and one fifth grade graduating class (Root: 161-163).

Each class has a teacher and a paraprofessional and if there are students with aides there would be additional adults in the room. The program uses the TEACCH

Citations to pages 162-168 refer to Ms. ’s cross-examination of Mr. methodology in which the students are instructed in a group or individually and the children are able to go on their own as they progress into work stations where they would also be able to work on their skills” (Root: 160). The program has two speech teachers, two occupational therapists, two physical therapists and a part-time guidance counselor (Root: 160-161, 167).

THE PARENTS’CASE

is the child’s mother. At the time of the hearing the child was five years-old; he has an older brother and lives with both of his parents. The child was evaluated by Early Intervention (“EI”) in January or February 2010 and there was a follow-up classroom observation in about May 2010 ( : 393, 416-417). He was subsequently diagnosed as having PDD-NOS ( : 367). The child had a CPSE IEP and he attended for the 20112012 school year. The school used ABA methodology and the program ratio was 8:1:2 although at “some point” there was an additional paraprofessional. The child has a lot of sensory issues and there did not seem to be any sensory input in the child’s classroom. The staff did not seem to understand the child’s need for sensory input and the type of sensory input that would help the child “focus and attend.” The child was not assigned a paraprofessional but one of the classroom paraprofessionals was always with him either touching him, holding him or placing him where they wanted him to go. The child kept to himself with a paraprofessional and did not interact with his peers. Nor did he do well with the related service providers. Rather, he seemed to “connect better” with his outside : 367-370). The child did not ; rather his language at the time ” such as “I want X, please” ( : 369).

In October 2011 contacted who runs for the Department of Education. The parents spoke to the social worker at where s other son attends and went on “multiple tours” of the charter . In February and March of 2012 the child’s father went on four tours of District schools in Brooklyn that are listed on the Department of Education website. The child’s father reported that he schools varied in terms of facilities, students and staff ( 389-390, 414). The visits were purely informational since the child had not been assigned to any of them ( : 390). The parents also sent an application to the ( 388).

In early February 2012 attended a information session presented by the Department of Education. asked how the placement for a child is determined and whether there would be an updated evaluation if the child’s prior evaluation was outdated. The Department of Education representative at the meeting told that in “most cases” new evaluations are not done and that the “Department of Education would have to think that something very significant had changed in the case to allow for a new evaluation” ( : 393-394, 415-416). That person also that the Turning 5 person assigned to the child would contact the parents. The parents received a letter in late February with a medical form for the child’s doctor to complete. The child had made “significant gains” did not think the 2012 evaluation was still valid. In February 2012 the parents took the child to Dr. for a neuropsychological evaluation ( : 392-393,419; : 285-286; Parents’ Ex. F). When Ms. contacted the parents in March the evaluation process with Dr. was in process ( 419).

A neuropsychological evaluation is “diagnostic in nature” and includes a developmental history from the parents, a classroom observations and testing sessions that encompass language tasks and IQ tasks and “looked” at the child’s executive functioning, verbal and non-verbal reasoning and an assessment of his social functioning. A psycho educational evaluation is not diagnostic and usually entails only an IQ and academic or pre-academic information ( : 285-286). A psychological evaluation looks at emotional functioning and is typically administered when a child is reported to have : 308-309).

The child’s parents brought the child to Dr. evaluation (Parents’ Ex. F). When Dr. met the child he presented ” when he was well rested and not being “pressed,” but could become “ ” when demands were placed on him ( : 285, 321).

Dr. observed the child at his preschool and spoke to his teacher. Dr. noted that the child required a “very high level of one-on-one support” in his class ( 291, 3220323). Based on her observation Dr. determined that ABA instruction was no longer appropriate for the child in that it was counterproductive to the child’s development of spontaneous language ( : 289-290, 309-310).^[4] The testing revealed that academic abilities are the child’s strength. He has a “nice foundation” in counting, letters and spatial relationships in terms of language and his ability to put puzzles together ( : 292-293, 34-325). When the child is engaged in a task he enjoys he is “quite happy” and “tends to be self directed.” However, the child exhibits a “severe degree of distractibility” which can be aggravated when he . The child’s “thinking level is much higher than his ability to express what he knows and he becomes frustrated when he cannot verbalize the things he is thinking about (Nightingale: 294). If one were to make a judgment about the child’s functioning simply by one’s interaction with him that person would not understood that the child has “really good to really great potential” ( : 293-294).

The child has significant sensory needs ( : 298). During the evaluation he could work for short periods of time but benefited from movement breaks such as going up and down the stairs, get a “squeeze or a squish” from his father or push a pillow into his body. That type of input is important for the child to reorient himself to a task. Dr. s evaluation reconfirmed the prior diagnosis of ( 299-300). Based on Dr. ’s evaluation she concluded that it is very important for the child to be in a small, calm class with students who are at his level intellectually and teachers who are experts in working with children . The child needs a small student-to-teacher ratio where he can get one-on-one interaction with a teacher who understands his needs and can help guide him, with a paraprofessional. He also requires a class that has social skills intervention integrated into the classroom and a flexible environment to address the child’s sensory needs ( : 302-303, 311, 316, 319; Parents’ Ex. F).^[5] The child would benefit from role models in the class who have stronger social skills than he does and can “pull him in’ ( : 321).^[6]

attended a CSE meeting on April 25, 2012. Her husband, also attended as did their parent advocate, the child’s teacher, the preschool school psychologist and the educational director of the preschool. Ms. appeared for the Department of Education. The meeting lasted about one hour. They discussed the child’s classification, the IEP process, the District program and the classroom observation ( : 408-409).

discussed which is a Department of Education program in a community school for children with a diagnosis ( : 375). told Ms. that the parents had applied to the Horizon program in December 2011 but that the program never came to observe the child at his preschool. told Ms. that she was interested in touring the program 377).

Ms. gave the parent her copy of the draft IEP so that she could review the goals which had already been drafted on the IEP. She was not permitted to keep the draft and she had about one minute to review the goals ( : 374, 408). believed that Ms. thought she had been involved in writing those goals or that the goals were based on a prior CPSE IEP that the parents had “gone over with the CPSE.” Ms. asked if the goals seemed “reasonable” and thought, in that “quick glance” that they seemed reasonable. Ms. also said that the parents could “always reconvene” an IEP meeting if they needed to change the goals ( : 409-410). At that time believed that she noted the child was already “potty trained” and so that goal should be updated. was not given a copy of the IEP to keep and the IEP was never sent to her ( 374, 408-409).7 Ms. suggested a District 75 placement but the representatives from the child’s school disagreed because of the child’s many sensory issues and his need for one-on-one support and constant prompting ( : 371). Ultimately Ms. suspended the meeting to ask her supervisor’s permission to defer the case to the CBST; subsequently the case was deferred ( : 372-373).

On May 9, 2012 wrote a letter to the CPSE administrator who had worked on the child’s case. In that letter noted that she felt “time was running” out because she was concerned that the child would not have a placement for September. She also asked for the administrator’s input as to what she thought might be an appropriate program for the

Citations to pages 409-421 refer to Ms. Stewart’s cross-examination of KM. child (KM: 391-392; Parents’ Ex. O). never received a response ( : 392). During about the third week of May Ms. told that the CBST had rejected the child’s case (KM: 374).

In late May 2012 took the child to visit : 421). In an email dated May 24, 2012 Ms. sent the notification from the CBST indicating that the child was not appropriate for an non-public school (“NPS”) recommendation. Ms. asked if would be able to meet the following Friday to discuss the type of program that would best meet the child’s needs (Parents’ Ex. P).

In June 2012 observed a classroom at the , which, according to the Department of Education website has an 8:1:1 ratio. After speaking to the teacher the parents determined that the child did not have the level of language necessary to be part of the program. never sent anyone to observe the child ( : 377, 407). On June 20, 2012 the parents signed a contract for the child to attend Cooke for the 20122013 school year. recalled that under the terms of the contract if the parents accepted a public school placement they would not be liable for the “entire $45,500.00 contract (KM: 395-396; Parents’ Ex. G at 2).

On June 27, 2012 KM wrote a letter to Ms. , the CPSE administrator and the CSE Chairperson stating that she was told the child was not appropriate candidate for the Horizon program and that if an appropriate placement was not provided in a timely manner she would have “no alternative’ but to place the child the 2012-2013 school year; she did not receive a response to that letter ( 394; Parents’ Ex. D).

There was another CSE meeting held on July 11, 2012 with different team members from those at the April meeting. Dr. led the meeting. All of the participants were from the Department of Education. The child’s teacher told that no one from the child’s school had been notified to attend. attended with her advocate ( : 379-380, 410, 412; DOE Ex. 19 at 15). The team did not review any documents at the meeting and did not discuss the observation; knew that Ms. had observed the child but she never received a copy of that observation although she requested it after the April meeting ( 380-381).

The program recommended at the meeting was a class in a District school. The members of the CSE told that there were some “really great” District schools and they named some of them. However, they told that she would not be able to “have a say” in the specific class that would be recommended for the child ( : 379, 421). Rather, Dr. explained that the child’s name, birth date, address and the fact that he was “ would be placed in the computer which would generate the school closest to his home ( : 379, 414). No one from the child’s school participated in the July meeting; the child’s teacher told that the school had not been notified about the meeting ( : 379-380). received a copy of the IEP in the mail ( : 382, 410).

No one at either meeting advised of her procedural rights or safeguards ( : 382).

received the FNR and the Nickerson Letter on the same day; both were dated August 13, 2012 (KM: 381; DOE Ex. 20; Parents’ Ex. E). The FNR indicated a school and a Department of Education representative to call for a tour. The Nickerson Letter indicated that because a placement was not offered to the child by June 15th he was entitled to attend a state-approved public school ( : 383).

That day began calling the state-approved schools on the Nickerson Letter list that had autism programs and were relatively close to her house ( 383; DOE Ex. 20; Parents’ Ex. E). KM called five schools; none had an opening except for the Block School, which had a single seat available. The director of the to send him the child’s neuropsychological report; however, after reading the report the director told that the child did not meet the profile for the one spot that was left (KM: 384-385).

That same day also contacted , the contact person indicated on the FNR. Ms. told that she had to call the school directly and gave her the school’s phone number. called the school three times that day but no one answered. She called a fourth time and left a message and called the next day and left another voicemail message. No one returned her call ( : 386-387). then drove to the school but the front door was locked; she then realized it was closed for the summer. never received a call in response to her voicemail messages (KM: 387).

On August 16, 2012 wrote a letter to the CSE Chairperson notifying her that she had signed a contract for the child to attend . She explained that she was told at the CSE meeting on July 11th that she would receive a placement letter in the mail prior to August 15th. She noted that she had just received a Nickerson Letter and an FNR, that none of the schools included on the Nickerson Letter had a place for the child and that she was going to unilaterally enroll the child at and seek tuition reimbursement. She also asked that the Department of Education arrange bus transportation for the child ( : 392; Parents’ Ex. C). did not receive a response to the letter but the child began to receive busing about six weeks after the start of the school year (KM: 392).

Dr. is the head of the kindergarten through eighth grade school , a non-profit school accredited by : 175). The school has four floors with approximately four rooms on each floor. There is one kindergarten class. The kindergarten and first grade classes are located on the second floor ( : 176, 185-186). The school has 104 students and 55 staff members. Each class has a head teacher who is certified in special education, an assistant teacher with “at least” a bachelor’s degree or the equivalent thereof and two classroom paraprofessionals ( : 177-178). There are five counselors, four speech and language therapists, three occupational therapists, a physical education teacher for adaptive physical education, an art therapist for art class, a certified yoga instructor who runs a yoga program and a science teacher ( : : 269). All of the related service providers are licensed in New York State ( : 220).

The first two weeks of each school year are dedicated to workshops in conjunction with the which conducted a series of workshops on autism and autism spectrum disorders. There are specialized trainings for different departments throughout the school year, including training for paraprofessionals ( : 178-179; : 230). The school provides monthly parent workshops and there is a parent support group as well as a parent-teacher association ( : 179-180).

The mission of the school is to provide children who have special needs with an education that will increase their adaptive, social-emotional and academic skills and enhance their independence ( : 175-176). The students have a range of classifications and disabilities with a “common thread” of “ and general academic functioning ( : 177).

There were nine students in the kindergarten class for the 2012-2013 school year, including the child. was the head teacher and there was an assistant teacher, Espinosa, and two classroom paraprofessionals ( 187-188, 209, 216; : 229, 231, and 267).^[8] The advantage of having four adults in the classroom is that the two teachers can always provide academic activities and also have the opportunity to work individually with some students in the morning ( : 232). At the beginning of the school year all of the kindergarten students were five years old ( : 230-231). The school uses the common core curriculum in terms of “benchmark skills and levels of development.” However, the curriculum is adapted and modified according to the levels of each student. Most of the curriculum is “within the confines of social learning experiences” in that the application of any academics in the classroom has a “community connection” to the real world ( : 180-181, 184). A literacy specialist works with the kindergarten teacher to develop the activities and the literacy curriculum ( 182-183). The kindergarten math curriculum is mostly numbers and counting and basic developmental activities in the Everyday Math curriculum ( : 183).

The kindergarten room is “large.” There is an area for a sensory table, a rug for the book area, blocks and toys in another area. There is also a dramatic play area with a loft. There are some tables for fine motor work, eating snacks and other activities ( 230).

The kindergarten is “built around the premise of social learning theory and social interactions” and is integrated throughout the day. All of the students in the kindergarten have deficits in interpersonal and social development. A counselor and speech therapist come into the class in the morning for “guided play.” The related services providers sometimes “push in” and sometimes “pull out.” The class also addresses adaptive skills such as “eating out” and “reciprocal speaking” in a restaurant environment ( 184; : 233, 251-252; : 265).

The kindergarten class uses a multi-sensory approach and varied instructional strategies that encompass visual and graphic prompting, graphic organizers, symbols, preferential seating, adaptive seating and adaptive communication devices ( 185-186).

The children use pads for occupational therapy activities, some phonemic awareness and some social skills games and the room has a smartboard ( : 195; : 263-265).

The kindergarten students are grouped so that they can benefit from peer modeling. The admissions director, teachers and other staff choose a balanced group of students for the class in terms of social skills and language and students who have s similar developmental levels ( : 190-191; : 232). 9 The kindergarten schedule also includes science, yoga, adaptive physical education and art ( : 199-200; : 269). For the classes that are not led by the head teacher there are always to or three additional adults in addition to the particular teacher or therapist leading the class ( 200, 207-208).

The child, who on the first day of school in September 2012 ( : 188-189). During the first month of school the teachers administered a formal assessment, the ABAS, and a checklist developed on the common core standards ( 235, 274-276; Parents’ Ex. N at 18-24). The ABAS showed that the child had significant needs in socialization and communication ( : 235-236). It was difficult to assess the child in academic areas because of his very limited language ( : 236-237). During the first month or six weeks of the school year Dr. was in the kindergarten class at least 30 minutes each day. She worked with the child and several other students to facilitate social interactions and do parallel play with the child in order to assess his functioning. ( : 193, 205-206).

The child presented with difficulty for sitting and doing an academic activity for extended period of time and required a high level of one-to-one academic support ( : 252). Sometimes he would throw the cup on pencils on the floor or tear his paper. Without that level of support Mr. did not think the child would be able to make academic progress; he required one-to-one support in that someone had to work with the child to redirect him back to the activity ( : 252-253). In September the child did not interact with other students ( : 254).

The child is very “warm and affectionate” and responds well to direction. It is difficult for the child to maintain attention for a length of time but he has a lot of Dr. was not involved in the child’s admission process ( : 204-206). inferential knowledge in that he could be working in one area but will pick up what is going on in another area at the same time. The child is very interested in sensory materials and has many sensory needs that are addressed in the classroom and the two sensory gyms in the building. Mr. and the occupational therapist for the child and they are working toward finding ways those needs. The school is working to develop the child’s interpersonal skills because he often does not interact with other students and prefers . The child’s language varies from “ , depending on the situation ( : 189-190; : 233, 247-250, 278-278; : 344, 364-365).10

Mr. worked closely with the speech therapist and developed times when the child could use “scripted but consistent among all adults bit of language when, for example, he needed help” with his button when he was in the bathroom ( : 237). The child also required a lot of prompting both with a “little bit of signing” and or saying phrases such as “Help me” or “Button please.” The teachers have slowly been expanding the length of those phrases ( : 237-238).

The type and duration of each child’s related services are derived from the “clinical judgment’ of the staff but begin with the IEP mandates. There were no mandates on the IEP that the school received with the application process. The school provides the child with , counseling, physical therapy and occupational therapy ( : 191192).

Mr. collaborates with the child’s related service providers each week at curriculum and development and planning meetings and also at meetings to talk about specific students and individual issues that come up for a particular child ( : 192; : 250-251; : 361-362).

The level of support that the child requires “varies from activity to activity.” He needs a “tremendous amount of support” to enhance his progress and for socialization skills. The child requires facilitated play provided by a therapist or a counselor and he needs “constant prompting” throughout the day to attend or to finish. He is very complaint at lunch and recess and he follows directions ( : 201).

Citations to pages 364-365 refer to Ms. s cross-examination of Ms.

Progress in kindergarten is measured by “informal testing” ( : 194). The Progress Reports are a narrative written by the head teacher and a checklist. The narrative focuses on social-emotional development and the checklist is taken from the kindergarten benchmarks of the national common core standards ( : 195-196; Parents’ Ex. N).

At the time of he impartial hearing the child’s ability to sit and attend had increased “dramatically” since the beginning of the 2012-2013 school year, from about five minutes to 15 minutes. In addition, while the child still did not seek out peers, at the time of the hearing the child was sitting as part of the group and his social language increased in the classroom as have his cooperative play experiences. The child also responded “much, much, much better” to another student’s request to play or “any kind of directive” than he did at the beginning of the school year and used more speech generally ( : 193-194, 242, 244; : 253, 255-261). He was having more “back and forth” exchanges with adults and retaining eye contact ( : 246). And, if the child needed help, for example with a button when he went to the bathroom, he was now able to “Help me button please” without any prompt ( : 237, 244). By the end of the year the child was also much more able to follow direction, “go with the flow” of the class and stay with the group if the students were “lining up” ( : 238-239).

The child has also shown a “huge amount of progress” in academic skills such as reading, writing and counting ( : 240, 243, 261-262). The child is now one of the “reading role models” in the class. He knows all of the letter names and most, if not all of the letter sounds. The child is doing many reading activities that are close, if not he same, as a general education kindergarten student ( : 241). In late September or early October the teachers found out that the child could write almost all, of in to all of the upper case letters but would do so only using “hand over hand,” even though the adult would not move the child’s hand. Now the child can write independently ( : 242). By the end of the year the child was on the “high end” of the class academically but still on the lower end in terms of his social-emotional needs ( : 246-247, 277-278).

is the school psychologist and she knows the child since he began at the school in September 2012. She testified that for the most part the child is very cooperative but not socially-related. At times he will become disregulated in that he will shriek or lie on the floor and kick his legs or throw an object he has been playing with when he reaches a point where he is no longer able to engage in a particular activity ( 337, 342-343). At the beginning of the school year she worked with the child on a “push-in” basis so that she could observe him in the class and help him acclimate to the school; in February she changed to pull-out sessions. ( : 340-343). She currently works with him both on a push-in and pull-out basis, individually and within the class group, to facilitate reciprocal interactions with herself and with the child’s peers and to work toward meeting his social/emotional goals using a play therapy approach ( : 342-343, 345-348, 360).

Since the beginning of the school year the child has “developed skill” in cooperative or reciprocal play but it is not yet self-directed. The week prior to Ms. ’s testimony at the impartial hearing the child initiated participation in a class activity on his own. There was music playing because the class was practicing for a performance. The child “immediately” joined a group of students, held hands with them, danced with them and followed movements with them as directed by the staff ( 348-349). The child’s ability to tolerate sustaining participation and attention has increased ( : 350). In addition, at the beginning of the school year the child was not able to ask for breaks when he needed sensory input and now he is able to say, for example, “I need a squeeze, please” ( : 351-352). He has also made progress in terms of using toys appropriately ( : 352-353). The child needs less prompting to participate or to be attentive than he did at the beginning of the school year but because of the high ration of staff to students there is always someone nearby to support him ( : 357).

Dr. and Mr. opined that the child was appropriately grouped with his classmates in that were very similar developmentally. Socially, there were children who initiated conversation and the child had the opportunity for “peer modeling” and academically he was a “great model” for other students in some areas of writing and academics ( : 194-195; : 266-267). The child has the opportunity to engage with typically developing peers from general education schools on off-site locations in the community ( : 216-217, 220-221).

has seen much progress in the child during the 2012-2013 school year. For example, the child and clearer pronunciations and he is making requests such as asking to morning : 401-402). has ‘absolutely” seen academic progress. For example, the child came home about each picture. Without any prompting or help the child wrote, “Is [child’s name] under his own picture and ” because they had seen a play with people dancing. The child’s counting skills have improved, and he knows all of the letters and sounds as well as colors and shapes. He likes to write and enjoys numbers and puzzles (KM: 401-402). attributed the child’s progress to the who understand him and found ways to help him participate and do school activities. She noted that when the child began he would only write “hand over hand” and could not grasp a pencil or a crayon but towards the end of the school year he was writing letters on his own ( : 403-404).

Dr. opined the was meeting the child’s needs in all areas in that the school is able to design a service model for him based on his needs in “very specific areas” ( : 201-202; : 267). Ms. believed me the child’s needs because he has benefited from the integration of services and level of support the school provides. The classroom provides positive role models for the child and he offers his peer group a positive model as well ( : 363). Dr. noted that the child has “great” potential and that he would regress without peer modeling ( : 202-203, 217-218). She did not believe that one teacher with a group of six students would be able to meet the child’s individual needs such as scripted play and social scripting which require direct instruction with groups of one to two students ( : 203-204).

The parents have contact with the child’s teachers about each school day to facilitate communication about the child’s experiences. The teachers provide suggestions to the parents via email and when the parents have a particular problem with the child at home the school “comes up with a plan” and “teaches” the parents how to implement the plan at home (KM: 404-405). believed that met the child’s needs during the 20122013 school year in that he made the” most significant progress he has ever made” in “really meaningful ways”

At the time of the impartial hearing the child’s parents had pad about $14,000 of the $48,500.000 tuition. The parents’ 2011 Tax Return shows an adjusted gross income of $164,352.00; they had not yet filed taxes for 2012. Their income for 2012 would be approximately $20,.000 to $25.000 more than it was in 2011 ( : 396-397). The parents have no savings account but have a 401(k) with a total cash value of about $125.000 but an actual value of about $40,000 because there are two outstanding loans against the account ( 397-398). In order to access those funds the child’s parents would have to pay back the loans, have the money charged as income and pay a penalty ( : 399). The family has “significant” credit card debt of between $90,000 and $95,000. They are enrolled in a “debt management plan” and make a consolidated monthly payment. Their mortgage and maintenance payments are approximately $1,625.00 a month ( : 399-400). If the Department of Education had offered an appropriate public or state approved non-public school the parents would have placed the child in one of those programs : 407-408).

The parents paid the $3,000.00 fee for Dr. Nightingale’s evaluation and were reimbursed by their insurance company in the amount of $1,040.00 (KM: 393; Parents’ Ex .I).

CONCLUSIONS OF LAW AND DECISION

I.

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). 20 U.S.C. § 1400[d][1][A]; see Schaffer v. West, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierre Pont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program. 20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347; Rowley at 181-182. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U. S. at 203.

The legal standard applicable to a request for reimbursement for educational services, such as in this case, is well established. A Board of Education may be required to pay for educational services obtained for a child by the child's parent, if: 1) the services offered by the Board of Education were inadequate or inappropriate; 2) the services selected by the parent were appropriate; and 3) equitable considerations support the Parents’ claim. School Committee of the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 (1985). The Board of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404[1][c]; Application of a Child with a Disability, Appeal No. 11-053.

This Decision is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record and, for the most part, will not be repeated here. Unless otherwise indicated below, I credit the testimony of the witnesses who appeared at the hearing.

A. The Department of Education failed to provide the child with a placement by June 15, 2012.

For the 2011-2012 the child was in preschool pursuant to a CPSE IEP. On January 2, 2012 Ms. observed the child in his preschool class. In February 2012 the Department of Education sent the parents a medical form to complete as part of the Turning 5 process and Ms. contacted the parents in late February. On March 22, 2012 Ms. did a social history update with Following the IEP meeting on April 25, 2012 the CSE deferred the case to the CBST for a non-public school placement. The CBST rejected the case in May but another IEP meeting was not held until July 11, 2012. The parents received the IEP in the mail after the meeting but did not receive an FNR until on or about August 15, 2012; the FNR was dated August 13, 2012. The parents received a Nickerson Letter that same day; the Nickerson Letter was also dated August 13, 2012 (DOE Ex. 20; Parents’ Ex. E).

The Department of Education follows the timelines based on the July 28, 1988 Stipulation Agreement between the Jose P. plaintiffs and the New York City Department of Education. Jose P. v. Ambach, 669 F.2d 865 (2d Cir. 1982); June 2, 1988 stipulation in Jose P. v. Sobol, 79 Civ. 270, 79 Civ. 560, 79 Civ. 2562 (E.D.N.Y.) (Nickerson, J.) at ¶30. Those timelines identify the dates by which special education students must be offered placements for the following school year. If those timelines are not adhered to, the parents must be sent a Nickerson Letter entitling them to place the child in an appropriate non-public school at public expense. In accordance with New York City Department of Education timelines Turning 5 students are eligible to receive Nickerson Letters if: 1) they will be 4.9 years old by September and are entering school in September; 2) the referral is received by the Committee on Special Education Office prior to March 1st; and 3) the parents have not received an FNR by June 15th. In addition, a student with an IEP that recommends a 12 month school year also must receive a placement by June 15th. Students With Disabilities Transitioning From Preschool to School-Age Programs, New York City Department of Education at 2; Standard Operating Procedures Manual, New York City Department of Education (Feb. 2009) at 32.

In this case the child was 4.9 years old in September 2012, he was already receiving preschool special education services and so was referred to the CSE prior to March 1, 2012 and the parents did not receive an FNR by June 15, 2012. Ms. testimony that she delayed sending the case for a new IEP meeting until the summer because she was waiting to hear whether the child was accepted to program is both not credible and irrelevant. testified that the never came to observe the child because his language was not adequate to be considered for the program. Ms. certainly could have found out that the child was not being considered for the program before the case became fatally delayed. Indeed, if Ms. had explored the requirements for a child entering it would have been immediately apparent that the child would not be accepted because of his . It is not the parents’ responsibility to apprise the Department of Education of the requirements for its own programs. In any event, there are no exceptions to the placement deadlines.

The fact that the Department of Education sent the parents an FNR with the Nickerson Letter did not cure the defect in the placement process. Indeed, the Department of Education acknowledged this fact in a letter it sent the parents along with the Nickerson and FNR. That letter advised the parents that they had the option of sending the child to the school on the FNR if they “would like [the] child to attend the pubic school placement instead of a non-public school” (Parents’ Ex. E at 2). Application of the Department of Education, Appeal No. 12-021, cited by the Department of Education in support of its argument that the issuance of the Nickerson Letter is “not an admission of a denial of FAPE” (DOE Closing Brief at 10), is inapposite. In that case the SRO found that there was no evidence in the record as to why the Nickerson Letter was issued since he found that the IEP and the placement recommendation were timely. Here, however, it is not the issuance of the Nickerson Letter itself that shows a denial of FAPE but rather the fact that the Department of Education did not offer the child a placement until August 13, 2012, two months after the June 15th deadline.

In sum, I find that the Department of Education did not meet its obligation to provide the child with a FAPE in a timely manner.

B. The Nickerson Letter was untimely.

While the failure to meet the June 15th deadline did not confer the parents with a right to a unilateral placement at Department of Education expense, it did obligate the Department of Education to send the Nickerson Letter to the parents along with a list of non-public schools for the parents to explore for the 2012-2013 school year. However, the Department of Education failed to do so in a timely manner. Rather, it sent the Nickerson Letter to the parents in mid-August, two months after the placement deadline had passed and just a few weeks before the beginning of the school year. As testified, she contacted five schools on the list that seemed to be appropriate for the child and that were reasonably close to her home. However, at that point none of the five schools that she called had an available place for the child. Four of the schools had no seats at all and the fifth informed the parents that the child was not appropriate for the one seat it had available. * * *

In sum, I find that the Department of Education did not offer the child a timely placement for the 2012-2013 school year. I also find that the Department of Education should have provided the parents with a Nickerson Letter and list of non-public schools shortly after June 15th so that they could have explored possible placements before the schools had filled all of their available seats. For these reasons I conclude that the Department failed to provide the child with a FAPE for the 2012-2013 school year.

C. In any event, the Department of Education also failed to demonstrate that it offered the child a FAPE in that the IEP was procedurally and substantively defective and the evidence was not sufficient to demonstrate that the proposed placement was appropriate for the child.

1. The IEP

In light of my conclusions of law detailed above this Decision need not address the parents’ complaints about the IEP, the program or the proposed placement. However, I note that in any event the Department of Education failed to meet its burden of demonstrating that the IEP and the proposed placement provided the child with FAPE for the 2012-2013 school year and I will briefly address those issues here.

To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child. Rowley, 458 U.S. at 188189; 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E, v. New York City Dept. of Educ.,, 694 F.3d 167, 175 (2nd Cir. 2012).

In developing an IEP a school district must comply with the procedural requirements set forth in the IDEA and the IEP must be “reasonably calculated to enable the child to receive meaningful educational benefits.” R.E, 694 F.3d at 175,190 citing Rowley, 458 U.S. at 175, 207. While a substantively inadequate IEP automatically entitles a parent to reimbursement, not all procedural violations are considered “material and not all procedural errors render an IEP legally inadequate under the IDEA. Id.; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). 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. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513[a][2]; R.E, 694 F.3d at 190.

Ms. testified that she brought a draft of an IEP to the April 25, 2012 IEP meeting. That draft was based on the Dr. ’s report, the CPSE IEP and the child’s progress reports. Ms. did not provide a copy of the draft IEP to or any of the participants from the child’s school bur rather simply showed the draft IEP , who testified that she was able look at the goals only about a minute. Ms. asked whether there was anything she wanted to add that was not on the CPSE IEP. Ms. testified that the parent declined to add anything but later testified that asked to increase the child’s speech to five times a week, which she did. On direct examination Ms. testified that the CSE team discussed the goals on the CPSE IEP and whether they had been met. However, on cross-examination she testified that she did not read each of the goals on the IEP or have a specific discussion about each goal at the meeting (Garcia-Dailey: 148).

At the meeting that the parents had applied to the Horizon program. Ms. testified that she believed that a program in a District school was appropriate but that the class would not be sufficient for the child without a paraprofessional; however no paraprofessional was included on the IEP. Despite her acknowledgement of the child’s need for individual help and small class, Ms. Garcia-Dailey recommended a program in case the child was accepted into the Horizon program, although she was not sure whether the ratio for that program was

After listening to the child’s parents and his teacher and reviewing the neuropsychological report and conferring with her supervisor Ms. deferred the case to the CBST. The parents were never given a copy of that “draft” IEP. In June 2012 Ms. contacted someone to see if they would look into the child’s eligibility for the program. Ms. did not know whether the observation had taken place. She testified that she was notified in June by a Department of Education administrator for and by the child’s father that the child was accepted but that the parents rejected the placement. In fact, Ms. recollection on this account was not credible never even observed the child because his language deficits were too severe for the program.

After the case was rejected by the CBST in May Ms. did not schedule the reconvene until July and it was held on July 11, 2012, presumably because Ms. was waiting to hear whether the child was . The July IEP meeting was conducted by Dr. and all of the participants except for the child’s mother and her advocate were from the Department of Education. No one from the child’s school was invited to participate and thus the only person at the meeting who knew the child Dr. did not recall whether any of the goals were reviewed at the meeting or whether she reviewed any reports or Dr. Nightingale’s evaluation. The program recommendation was in a District school with specified related services. No paraprofessional was mandated on the July 11, 2012 IEP.

I find that the procedural violations in the IEP process deprived the child of a FAPE in that the process significantly impeded ’s opportunity to participate in the decision making process regarding the provision of a FAPE to the child. Ms. ’s testimony as recounted above supports a conclusion that she did not provide the parents, the parents’ advocate, or any of the participants from the child’s school with a copy of the draft IEP at the April 25th meeting so that they could review the goals together. And, I find that Ms. Garcia-Dailey’s own testimony established she did not review each of the IEP goals and discuss them at the meeting. Rather, I credit ’s testimony that she only looked at the draft IEP for about a “minute.”

In its Closing Brief the Department of Education asserts that ’s testimony that Ms. did not review the goals on the IEP is not credible because was accompanied by an advocate and that the advocate would have made sure that the goals were reviewed (DOE Closing Brief at 15-16). However, it is not only who testified that the goals were not reviewed. As explained above although Ms. testified on direct examination that she “discussed” the goals she conceded on cross-examination that she did not discuss and review each goal separately. In any event even if I found that the goals were reviewed at the meeting, which I do not, the fact that none of the participants were given a copy of the draft IEP to review at the meeting while the goals were “discussed” in itself significantly deprived the parents of the right to participate in the decision making process.

In addition, the only participant at the July 11, 2012 IEP meeting that knew the child was the child’s mother. Thus, there was no input at the meeting from anyone who knew the child in an educational setting. And, as noted above, Dr. had no recollection of reviewing the goals with the parent or of reading Dr. s report or the progress reports. Dr. did testify that she discussed the and that she then added counseling to the IEP and also added a socialization goal DOE Ex. 15 at 12-13, Ex. 19 at 9-10). That additional goal reflects only Dr. ’s discussion with the mother and in no way supports a conclusion that Dr. reviewed each of the IEP goals at the meeting. Moreover, by itself that discussion fails to support a finding that the parent’s right to participate in the IEP decision-making process was not significantly impeded by the IEP process in this case.

Finally, the program recommendation on the July 11th IEP was not sufficient to meet the child’s unique educational needs. Ms. observation report indicates that the child required “physical prompts to complete most tasks” and that “[m]uch support is necessary” for the child “to remain engaged in a short group activity or to follow through on a 2 step unrelated direction” (DOE Ex. 5 at 3). And, she testified that even though the child was with a paraprofessional during the observation he was easily distracted and required a lot of redirection and prompting to keep him focused even with assistance ( : 87-90). As noted above she also testified that a program would not be sufficient to meet he child’s needs without : 147-148). Nevertheless and significantly, neither the April 25th draft IEP nor the final July 11, IEP mandates a paraprofessional for the child.

2. The Proposed Placement

Mr. the unit coordinator of the District program a testified that for the 20122013 school year there were three kindergarten classes. When asked on direct examination whether, for the 2012-2013 school year the school had space for a child who was born on December 20, 2007, Mr. replied, “Yes. We have several kindergarten classes ( 162). The question posed to Mr. about whether there was space in a kindergarten class for a student with the child’s birthday was general, as was his response, in that it did not specify a particular time frame that the spaces were available. I find that the testimony on that issue was not sufficient to support a conclusion that there was a space for the child available on the first day of the school year

All of the classes were located on the fifth floor of a general education school building; there was no evidence that the school had an elevator. The child’s May 6, 2011, Physical Therapy Evaluation indicates that the child’s has “ and and pattern when using safety (DOE Ex. 7 at 2-3). The July 11th IEP indicates that the child and negotiating that he requires “minimum assistance and verbal cues safely” (DOE Ex. 19 at 3).

A school district denies a student the benefits guaranteed by the IDEA if it proposes a placement that threatens a student’s health in a manner that undermines his or her ability to learn. See Lillbask v. Conn. Dept. of Education, 397 F.3d 77, 93 (2d Cir. 2005); Application of the Department of Education, Appeal No. 12-021. In light of the information on the Physical Therapy Evaluation and on the July 11th IEP about the child’s , placement in a program located on the of a general education school building was not appropriate for the child. At the very least the child would have of stairs twice a day. While there was no testimony about where in the building the cafeteria was located, if it was not on the fifth floor the child would have had to make that trip four times a day. For these reasons, too, I find that the Department of Education failed to provide the child with a FAPE for the 2012-2013 school year. II. The parents met their burden of demonstrating that Cooke was an appropriate placement for the child for the 2012-2013 school year.

Under the second criterion of the legal standard, the child's parent bears the burden of proof with regard to the appropriateness of the services that the parent obtained for the child for the current school year. N.Y. Educ. Law §4404[1][c]; M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 11-053. In order to meet that burden, the parent must show that the educational services were "proper under the act" [IDEA]. Burlington, 471 U.S. at 370, i.e., that educational program is one which met the child's special education needs. To qualify for reimbursement under the IDEA, parent need not show that a private placement furnishes every special service necessary to maximize their child's potential. Parent cannot be denied reimbursement because a private school does not meet the standards required for a state educational agency such as the developing IEPs or employing faculty members that are not state certified. Rather, the parent 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." Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G., 459 F.3d at 364. While parent are not held as strictly to the standard of placement in the LRE as school Districts are, the restrictiveness of the parental placement may be considered in determining whether the parent are entitled to an award of tuition reimbursement. Rafferty v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S., 231 F.3d at 96.

With respect to this criterion, as detailed above with citations to the record, I find that the testimony by parents’ witnesses clearly demonstrated that Cooke is “reasonably calculated to enable the child to receive an educational benefit,” that it is not too restrictive for the child and that it provides the child with “education instruction specifically designed to meet” his unique needs. Rowley, 458 U.S. at 188-189, 207; Frank G., 459 F.3d at 364. In making that determination I find that the child’s issues were addressed by his teachers and related service providers including a speech and language therapist, an occupational therapist, a physical therapist and a guidance counselor, all of whom worked together to develop appropriate educational strategies to meet the child’s needs. The teachers also conferred with the child’s parents so that strategies used in school can be implemented at home.

The child’s class had a total of nine students with a teacher, an assistant teacher and two paraprofessionals. In addition, the school psychologist, Ms. , pushed into the class at various times thereby providing another adult in the classroom. The testimony demonstrated that the child receives attention as necessary. The child’s teacher, Mr. , left no doubt that the child’s academic needs are being . Specifically, Mr. detailed the “huge amount progress” the child made over the course of the school year in reading, writing and counting and he testified that the child was doing many reading activities that are close to, if not on, the level of a general education kindergarten student. The teacher also noted that the child has become an “academic role model” for the class. The evidence demonstrates that the school has met the child’s particular needs in that it recognized his cognitive potential and worked with the child to maximize that potential in spite of his severe language deficits.

The testimony also demonstrated that the needs were . At the beginning of the school year the child had difficulty sitting and attending to an activity for an extended period of time and he required a high level of one-on-one support; he also did not interact with other students.. Both Mr. and Dr. , the , testified that the child’s ability to sit and attend increased “dramatically” since the beginning of the school year. Ms. described how the child’s cooperative and reciprocal play skills developed over the course of the school year. When Ms. testified at the hearing in May the child had initiated participation in a group activity, something he would not have done at the beginning of the school year. The testimony also explained how the child was using more speech and having more “back and forth” exchanges with adults while maintaining eye contact. He was also now able to ask for help with a task when he needed it. The occupational therapist developed a sensory diet for the child and towards the end of the school year he was able to ask for sensory breaks when he recognized his need for them.

also recognized the progress the child has , both socially and academically and gave specific examples of that progress as detailed in the Findings of Fact detailed above. For example, she noted that since the beginning of the school year the child has shown increased eye contact, more attempts at parallel play and increased spontaneous speech. She also noted that when the child began he could not and would only write using “hand over hand” with an adult, but now can write on this own. testified that during the 2012-2013 school year the child had made significant progress in “really meaningful ways.”

The Department of Education’s asserts in its Closing Brief was not appropriate because it provided the child with only one therapy a week while the parents had asked for five individual sessions and Dr. ’s report indicated that the child required intensive speech therapy (Department of Education Closing Brief at 21). This claim is without merit. While the Progress Report indicates that the child receives one period of speech therapy a week (Parents’ Ex. L at 1), testimony by Dr. and Mr. made clear that speech is an integral part of the child’s program and that the were addressed throughout the day. Dr. testified that is addressed “pretty much on a daily basis” and that a speech therapist who is assigned to the child’s class is in the classroom every day for “facilitated play” ( : 192). And, Mr. testified about his close collaboration with the speech therapist on strategies to deal with the child’s speech and language issues on an ongoing basis ( : 244). In addition, the testimony by all of the parents’ witnesses about the child’s progress in the area leaves no doubt met the child’s needs in that area.

In sum, I find that the evidence presented by the parents as presented in detail in the Findings of Fact supports a conclusion provided the child with teaching and a level of support to meet his academic and social/emotional needs in the LRE for the 2012-2013 school year. III. The Equities of the Case Favor the Parents

The third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded.

Addressing this legal criterion for reimbursement I conclude that the equities support the parent. There is no evidence or testimony to suggest that the child’s parents failed to cooperate with the Department of Education in any way. Rather, the evidence shows that the parents provided the CSE with their evaluation and attended the IEP meetings. They also provided the Department of Education with a timely 10-day notice that they were placing the child and would be asking for reimbursement.

The evidence shows that the parents explored District on their own prior to the first IEP meeting in April 2012 and toured . They also explored but were told that the child did not have sufficient language to be admitted. The parents did not sign the contract until June 20, 2012, after the June 15th deadline expired. And, even then the contract provided that the parents would be released from the contract “without financial penalty or continuing responsibility for tuition payments” if they chose to send the child to a placement recommended by the Department of Education and they of that decision prior to October 31, 2012 (Parents’ Ex. G at 2).

Moreover, even though the Department of Education failed to offer the child a placement by the June 15th deadline and the parties did not receive the FNR until on or about August 15th, tried called the recommended school several times and left messages. When she did not receive a response she went over to the school in person only to find that it was closed for the summer; the school never returned her voicemails. Similarly, the child’s parents contacted five of the schools on the list that accompanied the Nickerson letter in spite of the fact that they did not receive the Nickerson until on or about August 15th. By then, however, none of the schools had a place for the child.

The Department of Education argues in its Closing Brief that the equities favor the Department of Education because the parents had “no true intent” to place the child in a pubic school (DOE Closing Brief at 21). This claim is totally without merit as is belied by the parents’ significant attempts to learn about and to visit various public school programs as recounted above.

In sum, the equities of the case favor the parents. IV. The parents are not entitled to reimbursement for Dr. ’s independent evaluation.

Federal and state regulations provide that under certain conditions, a parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency. 34. C.F.R.300.502 (b)(1)(2); 8 NYCRR 200.5[g]; Application of a Child with a Disability, Appeal No. 11-074; Application of a Child with a Disability, Appeal No. 11-001.

The parents maintain that the last evaluation by the Department of Education was conducted in 2010. They state in their brief that child had made significant gains between that time and the Turning 5 process and thus that the Department of Education was required to administer new evaluations and tests prior to the April 25, 2012 IEP meeting (Parents’ Closing Brief at 23).

At the impartial hearing testified that in early February 2012 she attended an information session about the Turning 5 process. It was a general meeting not specifically related to any particular child. recounted that in response to an inquiry the Department of Education representative told her that in “most cases” new evaluations are not done and that the “Department of Education would have to think that something very significant had changed in the case” to allow for a new evaluation That person also told that the Turning 5 person assigned to the child would contact the parents” (KM: 393-394, 415-416).

In late February the parents received a letter from the Department of Education with a medical form. The parents, without contacting the Department of Education to find out whether the child would be evaluated during the Turning 5 process, took it upon themselves to take the child to Dr. for a , something they were clearly entitled to do. When Ms. contacted the parents in March 2012 the child was in the process of that evaluation. Ms. testified that after reviewing Dr. ’s report she deemed that no further evaluations were necessary and the findings of Dr. ’s evaluation were included in the development of the child’s IEP.

At the time the parents took the child to Dr. in February 2012 they were aware that they would be contacted about the Turning 5 process and did not yet know whether the Department of Education was going to arrange for an evaluation. Thus, at that time the Department of Education had neither denied the parents’ request for an evaluation nor conducted an evaluation that the parents disagreed with. Thus, under the circumstances recited above I find that the parents are not entitled to reimbursement for Dr. ’s evaluation. The fact the Department of Education subsequently relied on Dr. ’s evaluation (Parents’ Closing Brief at 23) does not, by itself, entitle the parents to reimbursement.

ORDER

In light of the above findings of fact, it is hereby Ordered that: Within 30 days of receiving a copy of the tuition contract for the 2012-2013 school year, proof of payment by the child’s parents and proof of the child’s attendance, the Department of Education is to reimburse the parents for the amount of the tuition they paid to the school. The Department of Education is to pay the outstanding balance of the tuition directly to the . The total amount of reimbursement is not to exceed $48,500.00. Dated: August 2, 2013

______________________

RONA FEINBERG, ESQ.

Impartial Hearing Officer RF;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

Department of Education:

Exhibit 1 Assessment Planning to Parent dated February 13, 2012, 1 page

Exhibit 2 OMITTED (duplicative)

Exhibit 3 Child Outcomes Summary Form dated April 25, 2012, 1 page

Exhibit 4 Health Examination Form dated August 9, 2011, 1 page

Exhibit 5 Teacher Observation dated January 2, 2012, 3 pages

Exhibit 6 Evaluation dated May 3, 2011, 3 pages

Exhibit 7 Evaluation dated May 6, 2011, 3 pages

Exhibit 8 Social History Update dated March 22, 2012, 2 pages

Exhibit 9 Observation in Childhood Arena dated March 8, 2012, 3 pages

Exhibit 10 Turning 5 Teacher Report dated March 8, 2012, 4 pages

Exhibit 11 Report dated November 2011, 1 page

Exhibit 12 dated November 2011, 1 page

Exhibit 13 Report dated November 2011, 1 page

Exhibit 14 Therapy Report dated November 2011, 1 page

Exhibit 15 Individualized Education Program dated April 25, 2012, 18 pages

Exhibit 16 Central Response dated May 14, 2012, 1 page

Exhibit 17 Individualized Education Program Meeting Notice dated July 2, 2012, 1

page

Exhibit 18 Report dated July 10, 2012, 1 page

Exhibit 19 Individualized Education Program dated July 11, 2012, 15 pages

Exhibit 20 Final Notice of Recommendation dated August 13, 2012, 1 page

Parents:

Exhibit A Impartial Hearing Request dated

November 27, 2012, 12 pages

Exhibit B Department of Education Individualized Education Program dated July 11,

2012, 12 pages

Exhibit C Parent’s correspondence w/proof of mailing dated August 16, 2012, 3

pages

Exhibit D Parent’s correspondence w/proof of mailing dated June 27, 2012, 3 pages

Exhibit E “Nickerson Letter” from Department of Education dated August 13, 2012,

6 pages

Exhibit F Evaluation by Dr. dated March 17, 2013, 18 pages

Exhibit G Enrollment Contract dated Jun 20, 2012, 2 pages

Exhibit H Parent proofs of payment 2012 various dates, 5 pages

Exhibit I Invoice and proofs of payment for Evaluation by Dr. dated February and March 2012, 5 pages

Exhibit J Parent 2011 Tax Return, 2 pages

Exhibit K Grammar School Program Description undated, 4 pages

Exhibit L Progress Report, dated November 2012, 20 pages

Exhibit M Class Schedule 2012-2013, 1 page

Exhibit N Progress Report, , March 2013, 24 pages

Exhibit O Parent’s correspondence w/proof of mailing dated May 9. 2012, 3 pages

Exhibit P Email to Parent from Ms. dated May 24, 2012, 2 pages

Exhibit Q Notice of Individualized Education Program meeting dated July 3, 2012, 1

page

Exhibit R Individualized Education Program dated May 9, 2011, 20 pages

Hearing Officer

Exhibit I Closing Brief for the Department of Education, 22 pages

Exhibit II Parents’ Memorandum of Law and Closing Statement, 28 pages

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Footnotes

[4] Citations to pages 309-327 refer to Ms. Stewart’s cross-examination of Dr.

[5] Dr. testified about her observations of District 75 classes. The programs Dr. observed did not include those in the school recommended on the FNR. Ms. objected to that testimony on the ground that it was not relevant to this particular case (Hearing: 306). I agree and I am not considering that testimony in my Decision.

[6] The evaluation, including the intake with the parents, the observation, the sessions with the child and the feedback with the family, totaled ten hours ( : 292).

[8] Ms. has college credits from Belize that she did not “transfer over” and had college courses in special education and early childhood. She has been an assistant teacher for 24 years ( 187-188). Both paraprofessionals have child care experience ( 188). Citations to pages 204-218 and 221 refer to Ms. Stewart’s cross-examination of Dr. Citations to pages 268-327 refer to Ms cross-examination of Dr.