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 31, 2013

February 19, 2013

March 22, 2013

April 26, 2013

May 17, 2013

May 28, 2013

Actual Record Closed Date: June 19, 2013

Hearing Officer: Sharyn Finkelstein, Esq.

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

Attorney — Student

District Representative — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 19,

2013

NO APPEARANCES

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 22, 2013

Attorney — Student

Legal Intern — Student

CSE 7 Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 26, 2013

Attorney — Student

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2013

ESQ., Attorney — Student

LCSW, Social Worker, Committee on — DOE

Special Education Seven — DOE

Teacher Assigned A, Committee on Special — DOE

Education — DOE

Administrative Coordinator, Jim Thorpe — DOE

School, — DOE

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

ESQ., Attorney — Student

Parents

Educational Director, — Student

Teacher — Student

Speech/Language Pathologist — Student

LCSW, Social Worker, Committee on — DOE

Special Education Seven — DOE

INTRODUCTION

I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of ”) for the 2012-2013 school year. At the request of the parent I held a pendency hearing on January 31, 20013, and issued an interim order on February 15, 2013. (Exhibit IHO I) I held a pre hearing conference on February 19, 2013 after the end of the resolution session. Hearings were held on April 26, 2013, May 17, 2013 and concluded on May 28, 2013. The parent and the District requested several adjournments and extensions of the time line. In considering the request I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution in this matter. Accordingly, the request for extension of the compliance date was granted.

A list of persons in attendance at the hearings and evidence submitted on the various dates are appended to the decision.

BACKGROUND

year old student classified An annual review was held on May 2nd for the 2012-13 school year. His classification remained the same and is not in dispute. The team recommended which means . (Tr. 3, Exhibit 1) The team changed his therapy recommendation from five times a week for 45 minutes individually to one of those sessions to a group of two in order to increase his socialization. (Tr. 38) All other services remained the same including and . (Tr. 38) The parents expressed their concerns in a letter (Exhibit E) A Final Notice of Recommendation was sent to the parents offering (Exhibit 2) The parent who had already seen the placement in the prior year, visited the recommended placement and expressed their concerns and informed the Department would remain at ) for the 2012-13 school year. (Exhibit 7)

The parents, by their attorney, Mr. , requested an impartial hearing seeking funding for their unilateral placement of for the 2012-13 school year. (Exhibit B) It is their position that the Individualized Education Program (IEP) is both procedurally and substantively inappropriate. They maintain among other things, that the goals are inadequate, that there is insufficient Applied Behavioral Analysis (“ABA”) at the recommended placement and would not receive enough individual attention and would be unable to make progress. It is their position is appropriate and that the equities favor the family. They argue that the parents are entitled to full tuition which should be paid directly to the school.

The Department who was represented by Ms. maintain that the IEP is appropriate and that they offered free and appropriate public education (FAPE) for . They argue that the parent's unilateral placement does not provide opportunity for any socialization and independent functioning. They maintain that the parent did not seriously consider public school and signed a contract which they could not afford. They argue that tuition should be denied in its entirety.

MS. has been with the committee on special education (CSE) as a teacher assigned for the past ten years. She took part in the IEP meeting on May 2, 2012 for . The team had an educational progress report from , a report from the speech pathologist, and a classroom observation. She attended as a special education teacher and Mr. attended as school and District Representative. The parent and parent member also attended. The special education teacher from the director of the school and were also in attendance. (Tr. 36) This was an annual review. 's reading is on a first grade level and his math is on a second grade level as reported by his teacher. (Tr. 39) She explained that the checked off on the IEP was ” (Tr. 44) and they did have both a Behavior Intervention (FBA). (Exhibit 8 and 9) They recommended a full time She acknowledged that in a group of children they cannot receive direct intervention at all times. (Tr. 90) She opined that would benefit from the socialization with other children. (Tr. 94)

MS. is the administrative coordinator at the . (Tr. 100) The teachers are certified and they have all related services. (Tr. 101) She opined that would have fit in well. (Tr. 104) Instruction is differentiated depending on the needs of each individual student. In addition to 's crisis there is also a para for the class. (Tr. 105) The would work with the classroom teacher to keep engaged. (Tr. 106) The teacher does the teaching but the does the follow up activities. (Tr. 107) The schedule is coordinated with the teacher and the assigned service providers. (Tr. 110) The teacher does a limited ABA (Tr. 112) The day is divided into eight periods. (Tr. 114) Lunch is not an instructions period. (Tr. 128) She could not say if they use Ipads in the school. (Tr. 129)

is the Educational Director of which is a private school for children diagnosed on the autism spectrum. The school utilizes Applied Behavioral Analysis (“ABA”). They use different components from all of the different disciplines. They work collaboratively between all of the disciplines and utilize the methodologies that are most effective for each child. (Tr. 143-144)

There are fifteen children enrolled in the school with a staff of over thirty. In addition to parent training they go into the student's home as a team twice a year and contrive a plan for the parents to utilize at home. They want to make the goals that they work on in school effective at home for generalization. She also explained that some behaviors occur only in the home and so they may do more home visits. (Tr. 145-146)

has been a student in the school for the past several years. He is in a program. is always . In groups, each child has their own teacher with them and there is one teacher leading the group. He has capabilities of learning and he does maintain is progress. He has that interfere with and he requires high levels of reinforcement on a set schedule. He needs the components of the lessons being taught broken down into steps.

has a specific written behavior plan that is written based upon each behavior that interferes with learning or interferes with his ability to be part of the classroom. A teacher or therapist is with him at all times. Every person who works with him including , are trained in how to incorporate 's plan throughout the day. His plan is different depending on the situation or setting. The teaching changes depending on the situation. (Tr. 147-148)

has instigation behaviors, . He and cannot complete a task, It is difficult for him to for longer periods of time. to the He has high levels of reinforcement. He is given prompting. The teachers have a specific amount of time for to get reinforcement. He earns points based upon quality of his work and based upon the points he gets to earn bigger and better things. They use his motivational system to teach him. (Tr. 164-167)

MS. is the academic coordinator and is 's lead teacher. There are three students in his classroom with three teachers and a speech pathologist.

She opined that requires a program. They want him not to need a program. As they fade themselves they see an increase in his maladaptive behaviors. She opined that the IEP is not appropriate for this school year.

They use their own IEP and share it with the CSE team (Tr. 190) They have their own behavior plan with goals (Tr. 191) They work on socialization throughout the day. (Tr. 190) receives ABA all day. They work on neatness with his eating . He is learning to ask to go to the bathroom on a schedule. (Tr. 194)

FINDINGS AND CONCLUSIONS

It is well-established that a district may be required to pay for private educational services for a student with a disability, if the services offered by the Department of Education (DOE) are inadequate or inappropriate, the nonpublic school is appropriate to meet the student’s unique educational needs, and there is no equitable bar to recovery. Sch. Comm. of the Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 114 S. Ct. 361 (1993); 20 U.S.C. § 1415(e)(2).

One of the main purposes of the Individuals with Disabilities Education Act IDEA (20 U.S.C. §§1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. §1400[d][1][A]. A free and appropriate public education (FAPE) includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347.

A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. (Application of a Child with a Disability, Appeal No. 04-046;. The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B). In this official interpretation of the regulations, the U.S. Department of Education explains that the special education teacher member “should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher who is, or may be responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child” (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26)

An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability and to enable the student to be involved in and make progress in the general education curriculum. Application of the Board of Education, Appeal No. 11-007, p. 21 (citing 8 NYCRR 200,r[d][2]iii]) Each annual goal should include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal. Id at 21; 8 NYCRR 200.4[d][2][iii][b]). For a student who takes a New York State alternate assessment, the IEP shall also include a description of the short-term instructional objectives and/or benchmarks that are the measurable intermediate steps between the student's present level of performance and the measurable annual goal. 8 NYCRR 200.4[d][2][iv]; Application for the Review of a Determination of a Hearing Officer Appeal No 11-037.

Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.

A school district meets "IDEA's substantive requirements if a student's IEP is 'reasonably calculated to enable the child to receive educational benefit[s].'" Cerra, 427 F.3d at 194 (quotation omitted). The IEP need not be designed to maximize the student's potential, but rather the IDEA represents a "'basic floor of opportunity'" that must likely produce progress more than trivial advancement. See id. at 195 (quotation and other citations omitted)

The parents must show that the educational program met 's special educational needs Burlington supra at 471 M.S. v. Board of Education, 231 F.3d 96, 104-105 (2nd Cir 2000). The private school need not employ certified special education teachers, nor have its own IEP for the student. Application of the New York City Department of Education, Appeal No. 06-037; Application of a Child with a Disability, Appeal No. 02-111. Plaintiff's burden is to show that the program was properly designed for to progress and is not required to show that in fact progressed significantly. G.R. v. New York City Department of Education, 07 CIV 4711 (TPG) (SD NY Decided August 7, 2009).

The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204. While parents are not held as strictly to the least restrictive environment standard as school districts, “the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement.” Application of a Student with a Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with special education services in the LRE”).

The third and final criterion for an award of reimbursement is that the claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA, Burlington supra at 471 U.S. At 374.

Tuition reimbursement may be reduced or denied, if the parents neither inform the CSE of their disagreement with the proposed placement and their intention 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 U.S.C. See,1412[a]]10][C](iii)[l]: Application of the Board of Education, Appeal No. 08-084. The ten day notice should adequately inform the school district of the parent's objections to the IEP. See Wood v. Kingston City School District, 55 IDELR 132 (U.S.D.C.N.D.N.Y.2010) The purpose of the statue is to give the CSE an opportunity to reconsider its recommendation and to correct any alleged deficiencies in the IEP. Application of a Child with a Disability, 03-062.

In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FREE Appropriate Public Education (“FAPE”) Bettinger V. New York City Board of Education. 2007WL. 4208560 [S.D.N.Y. Nov. 20, 2007]

The mere fact that parents may enroll their child in a private school while the IEP process is underway. . . is not by itself proof of bad faith on their part...so long as parents participate in the development of an IEP and placement in the public school system, they are not barred from tuition reimbursement. Kitchelt v. Weast, 341 F. Supp.2d 553, 557 n.1

(D. Md. 2004); see also, M.H., 09 CV 3657 at 91-92; Application of a Child with a Disability, Appeal 05-087 (holding that the equities do not prohibit a parent from entering into a contract with a private school prior to the date of the relevant CSE meeting).

In this case counsel for parents points out that there was no one present at the meeting who would have implemented the IEP in the recommended program. The meeting included a general education teacher, a special education teacher, providers, and several people including 's mother and staff who knew . I find that the team included people who had familiarity with the recommended program and more importantly who were familiar with . I find that the lack of an additional person who would have implemented the IEP in the recommended program is not a denial of FAPE.

Counsel for the parents point out that it would not be possible to implement the IEP at the proposed program because it mandates 35 sessions and 13 pull out related services. I am not persuaded by this argument. I find that the 13 pull out services are included in the 35 sessions. However, I find that the amount of pull outs would result in missing at least some important subjects. . (Tr. 198) Ms. stated that it seemed to be a lot of therapy sessions scheduled for a single week for a child of his age. Ms. acknowledged that removing him from his classroom 13 times a week would result in his missing subjects that are being taught. (Tr. 130) They attempt not to remove students during major subjects. Ms. acknowledge that students at this age level do not usually have that many period of certain related services. (Tr. 123) Ms. stated that they can modify mandates to meet the needs of the child. (Tr. 75) I find that the ability to modify mandates is irrelevant and is not a consideration in determining if FAPE was provided.

Ms. explained that some of the goals and objectives were They do progress reports in December and the end of May. She had an updated IEP for but no IEP had yet been projected for the following year. They would have written an appropriate IEP in the middle of June for 's current educational year. The documents she gave the DOE were the documents current to that date. The only new goals would have been goals because he had acquired some of those goals. The IEP was created from the IEP from the school year 2011-2012. for . She did not recall them going over goals at the meeting. They did not discuss the current IEP to say that they were working on and the did not discuss the projected goals. (Tr. 157-163) I find that the goals were not based on current information. I find that the goals are not relevant for the year for which IEP is going to be written I find that the goals are insufficient and result in a failure to provide a FAPE.

Ms. pointed out that here are no daily living goals and not a lot of functional goals. There are no goals with respect to There are no community goals, no manding goals and no behavior goals. I find that the lack of sufficient goals results in a denial of FAPE.

MS. is a pathologist 's articulation is very severely impaired and it affects his communication with others (Tr. 197) There are no articulation goals. The team recommend in a group for 45 minutes. (Tr. 198) She opined that is not appropriate because requires . The behaviors in a group and they would not be able to provide speech services in that kind of setting. She opined that requires the 60 minutes. (Tr. 198-199)

Ms. opined that a class with the addition of a crisis management paraprofessional would be too large for to learn his goals as written on his IEP. He needs to be taught goals specifically based upon his needs. He has communication breakdowns and the inability to be He has and being unattended exacerbates his behavior. She explained that a teacher can break concepts down and teach it to him, requires earning reinforcement on schedule. He is not able to stay on task that long and for long. She opined that if he is in a group he would miss too much of what was going on if the para had to take him out. He requires repetition. She explained that some goals take him days to meet the requirement. She explained that a para does not have the background of the ability to teach in that setting. (Tr. 151-153) She voiced her concerns at the IEP meeting. (Tr. 155) Positive reinforcement helps to reduce . His highest rate of maladaptive behaviors occurs when he is not receiving full attention or . She explained that help to make sure is making accurate decisions with some of the self monitoring , that he is following rules and earning reinforcement from them.

Ms. opined that would not be able to learn in the proposed setting. He requires things to be broken down for him. She opined that when he was not receiving individual attention they would see high rates of maladaptive behaviors such as throwing things, and falling on the floor. Witness for the parent who had worked with opined that without an Ipad he would resort to maladaptive behaviors. (Tr. 201)

I find that the evidence indicates that requires full time 1:1 instruction and I find that the DOE made the recommendation not based on his individual needs but based on the fact that they had no such placement in the DOE. I find that this resulted in a failure to provide a FAPE.

With respect to prong provides with instruction at all times from special education teachers and related service providers. There was undisputed evidence that he in fact did make progress not only academically but with his daily living skills such as toileting. The school not only demonstrated success in their setting but went into the home as a team and helped to improve 's n that environment especially towards his baby sister. Prior to coming to their home was violent towards his sister. This is in addition to their customary parent training. Ms. who is 's and testified that he has improved in pretty much a lot of the areas of language, receptive, expressive and as well as in his articulation. (Tr. 202) Ms. opined that has made a nice amount of progress. (Tr. 171) They targeted his non compliance and now he requires much less direction. 's mother explained that the use of an Ipad which is used in school, has made things a lot easier because now can type what he wants and everyone understands him. He is now with the use of a timer. Ms. was impressed with 's ability to interact in the classroom with one to one staffing ratio. (Tr. 84) He was focused on what was going on and interested in taking part and new answer. (Tr. 89) She saw him able to participate in science and in music.

She acknowledged that he benefited from the Ipad. (Tr. 90)

The Department questions the lack of opportunity to socialize but there are times when is in a group setting. Ms. acknowledged that during her observation, was involved in small group lessons which were examples of socialization. (Tr. 96) I find that the parents have demonstrated is appropriate and designed to meet 's unique educational needs.

In this case the parents signed a contract in in July which was after the IEP meeting, after they had sent letters about their concern with the program, after visiting the recommended placement and after informing the Department of their intent to unilaterally place for the 2012-13 school year. They have not paid any of the tuition and there was testimony from 's mother that if they do not prevail at the hearing, they will . I find the parent were not financially able to pay the tuition (Exhibit K) . I find that this does not bar them from relief. I find that contract is legally binding. I find that the parents are entitled to direct funding.

One of the issues that was raised at the hearing was that last year tuition reimbursement was denied by fifty per cent because the parents did not inform the CSE of their concerns with the proposed placement and IEP. Counsel for the parents point out that this is not the case this year. However, the prior hearing officer was very specific in pointing out that the parents did not voice objections to the goals either at the CSE meeting or when hey submitted their 10 day notice which resulted in a lack of opportunity for the CSE to address these concerns. (Exhibit A, page 19) I have read both letters to the Department (Exhibit 7 and Exhibit E) and still do not find any mention of their concerns with goals for this year. However, unlike the prior hearing officer, I find that there were other problems with the recommendation that were clearly articulated in the letter that resulted in the denial of a FAPE. I find no reason to reduce the award for this reason.

I did consider the fact that RFTS did not and would not provide a copy of their behavior plan for whatever reason. (Tr. 46) The Department did provide their own plan and inasmuch as there is no allegations from the Department of how not having the plan hindered their ability to provide a FAPE, I find no reason to reduce the award in this instance.

The parents did attend the meetings, send the required notices, visited the recommended placement for the second time. I find that they did cooperate and that the equities favor the parents.

In summary, I find that the Department did not offer a FAPE for for the 2012-

13 school year. I find that the parents selected an appropriate unilateral placement and nothing in the equities would bar them from full relief. I find that they were unable to pay the tuition. I find that they are entitled to direct funding.

ORDER

The Department shall fund the tuition for the 2012-13 school year by making direct payment to the school upon receipt of contract and proof of attendance. Dated: July 1, 2013

____________________________

SHARYN FINKELSTEIN, ESQ.

Impartial Hearing Officer SF;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

1 IEP May 2, 2012 30pages 2 FNR June 8, 2012 1 page 3 Progress Report December 6, 2011 3 pages 4 Progress Report December 21, 2011 7 pages 5 Report June 1, 2011 8 pages 6 Classroom Observation January 31, 2012 3 pages 7 Parent Letter June 25, 2012 2 pages 8 Functional Behavioral Assessment May 1, 2012 2 pages 9 Behavior Intervention Plan May 1, 2012 1 page

PARENT

AA 1Findings of Fact and Decision August 22, 2012 23 pgs. BB Impartial Hearing Request January 15, 2013 2 pgs A Email from school to CSE representative April 30, 2012 1 page B Progress

Report and Evaluation Results May 2012 7 pages C Educational Progress Report June 1, 2012 4 pages D Occupational Therapy Eval June 22, 2012 10 pages E Letter from Parent to CSE June 7, 2012 1 page F Enrollment Contract July 11, 2012 4 pages G Affidavit October 19, 2012 1 page H Attendance Letter October 2012 1 page I 's class schedule undated 1 page J Program description undated 1 page K Parent 1040 Income Tax Return undated 2 pages

IHO

I Pendency Decision February 15, 2013 5 pages II Email from Ms June 17, 2013 1 page III Email from Mr. June 19, 2013 1 page

I re-labeled these documents as AA and BB to avoid duplication of lettering (Tr. 27)