Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: May 15, 2014

May 29, 2014

Actual Record Closed Date: August 29, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 15, 2014

Esq. Attorney — Parents

Attorney Impartial Hearing Department of Representative Education Mother Father Assistant Principal Department of — Parents

(via telephone) Education

School Psychologist Department of

(via telephone) Education Special Education Teacher Department

(via telephone) Education

Registered Nurse — Parents

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 29, 2014

Esq. Attorney — Parents

Attorney Impartial Hearing Department of Representative Education Mother Father — Parents

INTRODUCTION

On May 15, 2014 and May 29, 2014 I held 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 ”). The hearing commenced at 10:00 a.m. and 10:05 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

old and is classified as a He attended until September 10, 2013. Due to his health issues he currently receives home instruction. In a letter dated January 29, 2014, , by her attorney filed a due process request for an impartial hearing “Complaint.” In her Complaint maintained, among other things, that the Department of Education did not offer ER a Free and Appropriate Public Education (“FAPE”) for the 2012-2013 and 2013-2014 school years in that the Individualized Education Programs (“IEPs”) dated June 1, 2012 and May 16, 2013 were substantially and procedurally flawed and that the placement recommendations were not appropriate . (DOE Ex. 1). The parents asked for various remedies to address the issues raised. The Department of Education filed a response on February 5, 2014.

I was appointed as the Impartial Hearing Officer on January 29, 2014. The original compliance date was April 14, 2014. On March 17, 2014, at the request of both parties for the availability of witnesses the compliance date was extended to May 13, 2014. On May 9, 2014 at the request of both parties for the availability of witnesses the compliance date was extended to June 12, 2014. At the conclusion of the hearing on May 29, 2014, at the request of both parties for the receipt of the transcript and the submission of closing briefs, the compliance date was extended to July 12, 2014. On July 10, 2014 at the request of both parties for additional time to submit closing briefs the compliance date was extended to August 13, 2014. On August 6, 2014 pursuant to a request by the parents and without objection by the District the parents’ the compliance date was extended to September 12, 2014 to have this hearing officer review the transcript and review and consider the closing statements of the parties before filing this Decision and Order.

The extensions 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. Specifically, (a) the child was and and thus there was no negative impact on the child’s educational interest or (b) in accordance with due process the parents were entitled to the opportunity to secure witnesses to appear at the hearing in support of their position and the parties were entitled to issue closing statements based on the transcript and have this hearing officer review the transcript and consider the evidence and the closing briefs prior to the issuance of a Decision and Order; (c) there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) for the reasons indicated above any prior delays due to the unavailability of witnesses did not require the denial of a subsequent extension request.

THE DEPARTMENT OF EDUCATION’S POSITION

, Esq., represented the Department of Education asserted that the IEPs in issue were reasonably calculated to provide with an educational benefit and that the program recommendation and placements provided ER with a FAPE represented that the Department of Education is prepared to conduct an returns to school, that it provided the parents with the AA-5 forms to obtain new evaluations from approved providers and that the IEP team will reconvene when the evaluations are completed to review the results and develop an IEP and appropriate program recommendation for . Ms. also indicated that when the parents submit the paperwork in support of their request for a full time registered nurse it will be forwarded to the appropriate office for processing and consideration; prior to the issuance of this Decision and Order informed this hearing officer via email that was approved for “nursing services” (IHO Ex IV). asserted that the Committee on Special Education (CSE) should not be ordered either provide compensatory services or to defer the case to the Central Based Support Team (“CBST”) for a non-public school recommendation since the evidence at the hearing showed that ’s needs could be met by a Department of Education program (Hearing: 9-13: IHO Ex. III).

THE PARENTS’ POSITION

of the Law Office represented the parents at the impartial hearing. Ms. that the Department of Education did not provide with a FAPE for the 2012-2013 and 20132014 school years. Ms. maintained that the Department of Education should be ordered to: 1) conduct a ”) and develop a 2) provide for independent evaluations at Department of Education expense followed by an IEP meeting to develop an appropriate program and a new appropriate not a private or non-public school; 3) with a full time registered nurse throughout the school day and on the school bus; 4) with compensatory services; 5) ; and 6) continue home schooling is to return to school and after an appropriate placement, program and services have been put in place (Hearing: 128-133; DOE Ex. A; IHO Ex. II at 22-23).

ISSUES TO BE RESOLVED

1) Whether the June 1, 2012 IEP was procedurally and/or substantively defective and thus of a FAPE; 2) Whether the May 16, 2013 IEP was procedurally and/or substantively defective and thus of a FAPE; 3) deprived of a FAPE because the Department of Education did not conduct 4) Whether the Department of Education failed to provide the parents with training and counseling June 2012 and May 2013 IEPs; 5) Whether the parents are entitled to obtain independent evaluations; 6) Whether a full time registered nurse on the bus to and from school and during the school day; 7) Whether the Department of Education should be ordered to provide an alternative setting for ER; 8) What services are until he is well enough to return to school; 9) Whether compensatory services are required.

FINDINGS OF FACT

The Department of Education’s Case

was s teacher from the 2009-2010 school year through the 2012-2013 school year (McCabe: 64, 78, 118). 1 , a school psychologist assigned was part triennial review team during the 2011-2012 school : 36-37). is an assistant ( old and is classified . He 2008 and was in his teacher for approximately four years, from September 2009 until he left for home instruction until the end of the 20122013 school year ( 3, 4). . He : 64-65).

The June 1, 2012 IEP Meeting

testified that prior to the June 1, 2012 IEP triennial review meeting she spoke to on the telephone about the goals and asked what she thought about them. Ms. service providers then . The related service providers brought documents that they used to develop their goals and brought and his assessments. The participants discussed “everything.” Each provider goals with input from the other participants and they developed a “draft” 90, 95-96).

Ms. participated in the triennial review IEP meeting held on June 1, 2012 as the special education teacher participated as the school participants brought the “draft” IEP to the meeting and discussed the recommendations 87). The IEP team considered evaluation, a and an annual review plan : 37-38, 47-48; DOE Exs. 7, 8, 9). The results of assessment that assesses reading and math were available at the IEP meeting as assessments. The results of the alternate grade level indicators are not included on : 5254; 93-96; DOE Ex. 4 at 1). s progress from the prior year was measured by teacher observations, reports and data collection on how much and how required prompting ( 43-44, 52 : 67-68). The Physical Development section of the IEP was developed by who discussed his findings and assessments with the IEP team. The IEP indicates .” was not at the time the IEP was developed. The IEP team knew had but he had . The IEP participants had an understanding at that 97-98).

Ms. Maresca reported that at the time of the meeting not all of ER’ prior IEP goals had been met but that he was making “a slower progress” toward his goals, commensurate with his cognitive abilities (Maresca: 44-45, 54-57).

11 Additional issues raised in the parents’ Complaint are included in the “Issues to Be Resolved” section of this Decision and Order.

The IEP team classified student and recommended class in a specialized school, a very highly structured program for students on the autism spectrum 38).^[2] The program recommendation was not changed well ( 76). The related services on the IEP were speech and parent training and counseling ( -41; DOE Ex. 4 at 14). The IEP indicated that include a (“ ”) that his behavior was manageable and that he was able to be redirected in the : 42, 51-52; McCabe: 65,116-117). did not express any concerns related to a was not discussed at the meeting : 41, 57-59).

Ms. testified the parents were either given a copy of the IEP to read or it was read aloud to them. The IEP team discussed the , obtained their input and presented for their : 86-87, 126; DOE Ex. 4). If the parents had a suggestion for a modification of the IEP and the IEP team thought the modification was would modify the IEP accordingly : 121). did not make any suggestions regarding the goals on the IEP : 121-122). If the parents had had a suggestion about a related service goal on the IEP and the provider was not present at the meeting, the team would put the parent in contact with the provider prior to finalizing the IEP ( : 122). ” and agreed to the goals, services, programs and classification on the : 39-40).

Ms. believed that was appropriate it was able to address his needs in a small class setting that allowed for a lot of attention and because he was doing well in that program ( : 77-78; ).

The 2012-2013 School Year

the 2012-2013 school year. In the workshop model, which consisted of group, small group and individualized 124 device in the classroom as well as a device in the classroom provided a small device to put to use the -120). Using the more and participate more as well was in he made progress in matching colors, numbers and pictures and he was working instruction. Progress was measured by the amount of prompting he required as well as by data sheets showing progression ( Report cards were issued to the parents every three months and they explained the progress ER was making : 67-68).

because he learned “very well” through repetition ( : 117-118).3 She described as she or her paraprofessional working at a one-to-one station using repetition, such as, “touch red” and testified that . had no formal training or was trained school where she worked : 117-118).

Ms. testified that over the course of the 2012-2013 school met all of the short term objectives for the goals that she developed on : 98-101). Progress was measured by written data collection based on four out of five trials. Ms. collected the data responses each day to measure how he is doing in a particular skill ( 102-104; DOE Ex. 10 things on his own” during that year, for example, matching objects to pictures and pictures to pictures, match numbers and “hold a crayon and color somewhat.” class and there was a lot of to one

If ( e: 64-65). Those picture symbols and they did not interfere at all with his learning in the classroom. Thus not measured by the decrease in his need for prompts for a given task ( 66-67).

parents had opportunities to meet any time they wanted to do so and there were various workshops for parents at school 71-72).

Ms. communicated via a communication book and she spoke about a quarter of each school year Ms. impacted on his she “was always here” for “anything that absent and that she would work with any of providers during that time. She was always in “constant contact mostly “believe[d]” that she discussed the classwork with : 73, 118-119, 123, 125; 21-22).

class and he The school called 911 and he was taken to the hospital. He had 30; up his nose and she told Ms. never unattended. did not recall spoke to her about this before or after the May 16, 2013 IEP meeting ).

Ms. McCabe did not believe that ER required a nurse in the classroom because there are three nurses in the school building that she could call when necessary (McCabe: 70). The May 16, 2013 IEP Meeting the May 16, 2013 IEP as it did for the June 1, 2012 IEP in that and the other school participants met prior to the IEP meeting and developed a draft after consulting with s parents by phone. The draft was brought to the IEP meeting on May 17, 2013 ( : 104-105; DOE Ex. 3).

participated May 16, 2013 IEP meeting as the special education teacher and the district representative. ER’s speech teacher participated as by : 104, 106-107, 113; DOE Ex. 3 at 18). The team had the results of the New York State alternate assessment, observations and data : 112; DOE Ex. 3 at 1). The results of that ER was in the prearts : 112-113). On the first page of the IEP with his ability to attend and participate in : 115; DOE Ex. 3 at 1). In Development has which are noted by playing . Ms. with his ability to attend and learn because he was : 115-117; DOE Ex. 3 at 2).

The IEP team had ’s June 2012 IEP in front of them at 104). In developing goals for the IEP related service providers progress from the prior year’s goals and his prompting levels. testified that also collaborated on the the parents had a suggestion about a related service goal on the IEP and the provider was not present at the meeting, the team would put the parent in contact with the provider prior to finalizing the IEP ( : 122).

The IEP team : 74). Home instruction was considered but rejected because ER would and as rejected because it would not provide sufficiently intensive support :

74-75; DOE Ex. 3 at 17). testified that everyone at the meeting, including , agreed with the program 75). that the was the least restrictive environment (“ and that the class was appropriate for him in that he and 70-71). In June 2013 the IEP team reconvened to to the IEP ( 76-77 5 did not recall whether the IEP team to put objects up his nose at the IEP meeting or whether the paraprofessional was : 123).

As per his IEP dated May 16, 2013 and the IEP Amendment dated June 12, 2013, received the related services of individual three times a week for 30 minutes, occupational therapy twice a week for 30 minutes, parent training and counseling twice a year for 50 minutes, nursing services “as needed,” a and an assistive technology device trained when she worked in a private school. She has no license or certification 118). (Labetti: 17-18, 32-33; DOE Exs. 3 at 12, Ex. 5). The school has three full-time nurses. A nurse on the bus is a service arranged through the Department 23, 31). Parent training as identified IEP is available to all parents throughout the school year in the form of workshops, group meetings and could also be provided on a “one-to-one basis.” Parents can request specific training as 24-25, 32-33). If “need[ed]” training they could have “requested” it from the teacher and the school would have one its “best to accommodate whatever they would : 31-33). The 2013-2014 school year

For the 2013-2014 school year ER was assigned to a class that used the TEACCH program. The TEACCH model is “very structured.” The students use “visual schedules” and the program includes opportunities to work independently on mastered tasks at work stations and also include one to one instruction ( 18-19).

attended school for one day of the 2013-2104 school year and is currently on home instruction because of his health issues, in : 18-19). , came to school in October 2013 and met with the school nurse. They discussed the fact was , that he had been hospitalized and that he . at about the same : 21). The Parents’ Case mother. At the time of the impartial and the Department of Education classified him with that disability (YR: 201, 206). . His muscles are not developed and he cannot hold a pencil 297). He He gets . The teachers if he would have to clean it 299, 301-302). At the time of the impartial and ( : 299-300). but ” at home and in school 300-301). and has ( : 256-265).

( : 203). He is treated by , by Dr. and , for ( : 204). The June 1, 2012 IEP Meeting meeting held on June 1, 2012 but she did not have a specific recollection of that meeting. However, when she attends IEP meetings she has the opportunity to voice any concerns she has she relates what the home therapists are and asks if the work could be done at school as well : 275-278, 239-330; DOE Ex. 4). None of the goals on that IEP sounded familiar she did not recall discussing those goals, giving her input about them or having knowledge working on those : 279-282, 330). signed the signature page of the IEP when she first arrived at the meeting ( : 330 -331; DOE Ex. 4 at 21). did not recall receiving a document asking her to sign if she agreed with the IEP ( : 332). The 2012-2013 School Year which (Moller: 151-154; YR: 255-258). During the summer session of 2012 his parents took him . In September 2012 on his ( 257-261, 324-325). told Ms. she alerted everyone who works , the classroom and the gym ( 261-262, 325). ER came home ( : 263-265, 327).

In April 2013 (YR: 205-208, 316). The school and when she arrived the paramedics were The teacher told 20124 (YR: 250-251). father got to the . It took about a minute and a

During the 2012-2013 school year missed of : 237-238; Parents’ Ex. A at 3). At times someone call and tell her that there were enough adults in the , “was in good hands” (YR: 240-241).

workshops at the school during the 2012-2013 and 2013-2014 school years. She knew about the were inserted into advised and needs via the communication book as well as in person (YR: 290-296; Parents’ Ex. U).4 The May 16, 2013 IEP Meeting

IEP meeting in person because May 13th and May 14th ( : 250-251, 317). She spoke to also spoke with the Ms during her “ : 252-253). Ms. was doing well, meeting all of his . She did not talk about what was going on in the classroom at the time ( : 253-254, 318-319). The speech therapist, that she was doing the same thing in school that his because he was improving but they did not discuss anything about those : 317-318). did not have any documents at the time of the IEP meeting and no one asked her about the goals on the IEP. Rather, about the work that therapist, who if she needed any “help” (YR: 271). asked about own paraprofessional said that she would “look into it information : 255-256, 319).

received a letter dated June 12, 2013 advising her was going to get a health paraprofessional. The IEP team reconvened on June 25, 2013 and added a health

44 Parents’ Ex. U represents examples book which actually consists of about five notebooks dating from October 2010 to 2013 ( 294-295, 325-327). paraprofessional to the IEP (YR: 319-321; DOE Ex. 3 at 2, Ex. 5). for the summer session ( : 319). The 2013-2014 School Year the first day of the 2013-2014 school : 198-200, 289). At that was in the process of changing his medication from doctor and said two hours apart. Dr. called the emergency and his parents took him there where he medication and admitted to the : 229-230, 241, 323). When he he was given to stop the seizures impacted on his ability to see and ( : 241-242). A few days after he he had to go back to the emergency room because of the side effects of the medication 242-243). When he came not ready to return to school. Dr. that a not be because they would not be equipped to school bus. Rather, he needed a registered nurse with him from the time he left home until the time he returned at the end of the to school that year and has since been receiving home instruction.

made progress with home schooling during the 2013-2014 school year and he is working on his IEP goals. that he was able to make progress only because of the home that he has had for the past two years pursuant to : 282-283). He has progressed from not being able to pick up a pencil to tracing and using the iPad ( : 283). ’s parents purchased a “Go Talk” device 285-286).

has not gotten any homework since he was in kindergarten ( 302-303). When missed school during the 2012-2013 and 2013-2014 school years he did not get any homework or any work that he missed in class not have homework even when he was in school 304).

’s goal is to . She had the application was going to take a tour in July 2014. However, the school said that they needed current/updated evaluations which she was not able to get. list provided to her by the school but she could not get any of them to come to the house ( : 305-307). She believed because it has . An evaluator that came to the house ” going to begin home in June 2014 through the family’s private insurance 333-335). told get : 336). The Parents’ Request for a Registered Nurse

As of the time of the impartial between ten and fifteen seizures. The paramedics and Dr. . If he does ( : 214-215).

occurs during sleep. He also has mini-type seizures during which he “stares” or gazes upward for a few seconds (Moller: 141-145, 157-158).

To treat his epilepsy Dr. which diet ( : 216-219; ). The diet has specific ratios that have to A school cannot provide this diet. meal and send it to levels must be monitored throughout the day by ” that is put in his urine when he goes to paper up his nose. He needs to have a registered nurse on the bus and in school to medically s as they have no health or medical background (Moller: 178-179; YR: 310). A registered nurse in the school would not be sufficient because the interventions that might be needed would be “emergencies” and the school nurse might not arrive in time to administer them ( 186).

Ms. 250; Parents’ Ex. K). At the time of the impartial yet submitted the documents because she to administer the required evaluations (YR: 305).

CONCLUSIONS OF LAW AND DISCUSSION

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. Weast, 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 Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet a child’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 ER to benefit educationally from that instruction.” Rowley, 458 U. S. at 203.

Unless otherwise indicated below I credit the testimony of all of the witnesses who appeared at the hearing. This Decision and Order is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record. I.

A. The Department of Education failed to provide the child with a FAPE for the 2012-2013 and 2013-2014 School Years

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 188-189; 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.

I find that Department of Education of a FAPE for the 2012-2013 school year. a. At the outset I find that the parents did not have the opportunity to meaningfully participate in either of the IEP meetings contested at the impartial hearing (DOE Ex. 1 at 9; IHO Ex. III at 11-13).

Ms. teacher who participated in both IEP meetings, testified that the goals on both IEPs were not generated at the IEP meetings with the parents’ participation. Rather, she explained, the goals were generated prior the IEP reviews at a meeting attended only by Ms. related service providers. did not participate in those meetings. Ms testified that the parents had “a very big input” into the development of the IEP with respect to ’s “ideas, what she thought.” Ms. that she needs with his parents on the telephone prior to those meetings and that the parents “always had the option of giving anything they thought,” and if the IEP team agreed “it was put in” and if the team disagreed “it wasn’t put in” : 86-90).

Ms. s testimony failed to demonstrate parents had any actual input in the development of the IEPs at issue. There was no specific evidence or testimony about how the goals were explained to the parents or how specifically the parents had any input into the development of either of the IEPs. general statements about her conversations with over the telephone regarding the drafting of the IEP and her testimony about the parents’ opportunity to participate in the development of the final IEP at the IEP meetings were refuted by were discussed with her on the telephone prior to, or at, either of those meetings. Rather, simply told her and that the main focus of the discussion at the IEP meetings was . was asked specifically whether she had any input about his goals prior to the May that she did not. she “was the one informing what from his home ). Ms. about the meetings themselves is also questionable because of her repeated referral to the “parents” to participate in the development of the IEPs since, in fact, 267; DOE Ex. 3 at 18; Ex. 4 at 20).

Moreover, few days prior to the IEP meeting scheduled for May 16, 2013, YR participated in that meeting by telephone that she did not have a copy of the “draft” IEP or any other documents related to the development of the IEP at that time (YR: 266).

I find that the procedure for developing the goals on the 2012-2013 and the 2013-2014 IEPs in which they were discussed and developed by the Department of Education members of the IEP team without either of the parents present, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child and thus deprived ER of a FAPE for those school years. The testimony about the IEP meetings themselves did nothing to cure the defect as the evidence showed in the development of any of the goals on either of those IEPs. b. The failure of the Department of Education to the 2012-2013 and 2013-2014 school years also a FAPE (DOE Ex. 1 at 5-6; IHO Ex. III at 8-10).

New York regulations require the Department of Education to conduct an FBA for a student “ .” 8 NYCRR § 200.4(b)(1)(v). The FBA includes “the identification of the problem behavior, the definition , the identification of the contextual factors that contribute to the behavior . . . and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it.” 8 NYCRR § 200.1(r). When a student’s behavior impedes his learning, a BIP must be developed with strategies to deal with the problem behavior(s). 8 NYCRR § 200.22(b).

The Second Circuit has held that “the failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about , leading to their being addressed in the IEP inadequately or not at all. Such a review of the IEP because courts cannot determine exactly what information an FBA would have yielded and whether that information would be consistent with the student’s IEP. The entire purpose IEP’s drafters have sufficient information about the student’s behaviors to craft a plan that will appropriately address those behaviors. R.E. v. New York City Dept. of Educ., 694 F.3d. 167, 190 (2nd Cir. 2012). Courts have held that while the failure to procedural violation, it does not rise to the level of a denial of a FAPE if the IEP adequately identifies the problem behavior and prescribes ways to manage it. Id.; A.C. ex rel. M.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172-73 (2d Cir. 2009).

The Occupational Therapy Review Plan prepared for ER’s triennial review on June 1, 2012 states that ER, “continues to be highly distractible with both outside sensory input which adversely affect his ability to focus and attend to classroom activities,” that he is “highly distractible in his environment” and that he “demonstrates poor in-seat behaviors” (DOE Ex. 8 at 1). The June 1, 2012 IEP states that behavior at times” (DOE Ex. 4 at 2). testified that in class ER would jump up and down, play with his saliva and fling it, engage in hand flapping and make vocalizations (McCabe: 116-117; DOE Ex. 3 at 2). Although Ms who participated at the June 1, 2012 IEP meeting, could not recall but that the CSE did not conduct that his behaviors were manageable with redirection section of the June 1, 2012 IEP nor any other section or the goals include methods of addressing ER’s interfering behaviors (DOE Ex. 4).

The first , 2013 IEP states and that he “ makes vocal sounds.” Ms testified that ( ). There was also extensive testimony at about that behavior prior to the IEP meeting. Ms. case in the classroom because ER was easily 117). Again, neither or goals include any methods of (DOE Ex. 3). The only reference at all to managing these is a single to “redirect him to stay on task” (DOE Ex. 3 at 2). There is no information at all in the IEP about the type of redirection that is effective and should be implemented for him.

I find that he evidence and testimony at the impartial hearing regarding ER’s behaviors in class were sufficient to support a finding that the CSE should have conducted for both the 2012-2013 and 2013-2014 school years and/or or, at the very least prescribed methods for addressing those significant Ms. that the teachers and paraprofessionals were able to in the classroom does not excuse the failure of the IEP to include methods to address the behaviors and work towards decreasing or eliminating them and thus facilitating his ability to learn. Indeed, a teacher reviewing either of the IEPs at issue would have no idea what methods were effective in behaviors. For this reason, too, I find that the Department of Education failed to a FAPE for the 2012-2013 and 2013-2014 school years.

c. The school did not provide counseling mandated on ER’s June 1, 2012 and May 16, 2013 IEPs and the failure to do so contributed to the deprivation of FAPE for the 2012-2013 and 2013-2014 school years (DOE Ex. A at HO Ex. III at 10-11).

Federal law makes it clear that parents are requires that school districts offer parent training and counseling for children with autism. 8 N.Y.C.R.R § 200.13(d). Parent training and counseling is defined as "assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program." 8 N.Y.C.R.R. § 200. 1(kk).

The June 1, 2012 IEP mandated that the parents receive three 50-minute sessions of parent training and counseling for the 2012-2013 school year (DOE Ex. 4 at 14). The May 16, 2013 IEP mandated that the parents receive two 50-minute sessions of parent training and counseling for the 2013-2014 school year (DOE Ex. 3 at 12).

The testimony established that no one at the school offered the parents training or counseling sessions that were tailored issues in order to enable them to support the implementation of either of the IEPs at issue at the impartial hearing. the assistant principal , testified that workshops on various issues were offered to all of the parents at the school. She also could have requested training and that the school would have “done its best” to accommodate their request (Labetti24-25, 31-33 that she received notification of these workshops offered to all parents only through flyers communication book.

As per 8 N.Y.C.R.R. § 200. 1(kk) the mandated parent training and counseling on the June 1, 2012 and the May 16, 2013 IEPs required the school to with parent training and counseling sessions specifically focused on skills that would assist them in supporting the implementation of those IEPs. Generalized workshops and group sessions offered to all parents, while helpful, do not meet the IEP mandate. Moreover, it is not the parents’ obligation to request these services. Rather, parent training and counseling should have been provided to the parents as the other related services are provided, without requiring the parents to request the mandated sessions. The failure of the Department of Education to provide the parents with training and counseling services specifically related to implementing to the deprivation of FAPE for the 2012-2013 and 2013-2014 school years. d. The failure of the school to provide for the time was out of school due to illness during the 2012-2013 contributed to the deprivation of FAPE (DOE Ex. 1 at 8).

Due to illness ER missed 51 days of school during the 2012-2013 school year (Parents’ ex. A at 3). Those significant absences rate of progress.

The testimony showed that , , his teacher during the 2012-2013 and three prior years, did not provide with any work for him to do at home did not provide any work or homework related to what was being taught in class. And, when asked about sending work home responded directly but repeatedly replied that she was available to provide anything that that she was available to work during that time and that she “believe[d]” she discussed classwork : 73, 118-119, 123, 125). I find that it was responsibility to ask for work to be sent home for ER. Rather have sent work home during those extensive absences. The failure of the school to provide relevant material for ER to work on at home contributed to the failure of the Department of Education to provide ER with a FAPE for the two school years at issue in this case.

***

For the reasons detailed above I find that the Department of Education failed to meet its burden of demonstrating that it with a FAPE for either the 2012-2013 or 20132014 school years. ^[5] II. The Parents’ Requests for Relief

Evaluations/CSE Reconvene/Placement

The parents are asking for new, independent evaluations followed by a CSE meeting to develop an appropriate IEP, program and placement he is physically able to return to school (DOE Ex. 1 at 9-10; IHO Ex. III at 22-23).

The Department of Education evidence includes AA-5 Forms and cover letters dated March 18, 2014 authorizing the parents to obtain an independent at Department of Education expense and independent evaluations for , also at Department of Education expense (DOE Exs. 14, 15, 16). In its closing statement the Department of Education acknowledges that the parent is entitled to new evaluations (IHO Ex. II at 3).

I find that new, independent evaluations at Department of Education expense are appropriate and the parents are to obtain those evaluations if they have not already done so. Once the evaluations are completed the CSE is to reconvene to develop an IEP for ER considering the information in those evaluations as well as any other relevant assessments. The CSE is to provide an appropriate other than that can meet his unique educational and physical needs. In making that determination the CSE must consider deferring the case to the Central Based Support Team (“CBST”) for a nonpublic school placement.

Registered Nurse

The parents presented extensive testimony and evidence regarding medical conditions and interventions (See Parents’ Exs. K, L, M, N, O, P, Q, S). a registered nurse who works with one of cannot be addressed by a health paraprofessional or the school nurse. They must follow to and the fact must be monitored by urine strips throughout the day. Ms. also explained the if that lasts more than a specified amount of time. In addition documenting

I find that the testimony and evidence presented at the hearing is sufficient to support a finding on the bus going to and from school and in the classroom throughout the school day. testified at the hearing that the necessary paperwork to be submitted for a registered nurse was being completed and the parents were advised at the hearing that they had to submit the paperwork to the school nurse. Prior to the issuance of this Decision and Order I was notified representative, that ER has been approved for “nursing services at school” (IHO Ex. IV).

Upon submission of the required paperwork the Department of Education is to for a registered nurse to accompany him on the bus to and from school and during the school day. Compensatory

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA. See 20 U.S.C. §§ 1401(3); 1412(a)(1)(B); Educ. Law §§ 3202(1); 4401(1); 4402(5). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE. And, the IDEA allows a hearing officer to fashion an appropriate remedy, such as compensatory education, for the denial of FAPE. Mr. and Ms. P. v. Newington, 546 F.3d 111 at 123; Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008; Application of XXXXXXXXX, Appeal No. 13-048; Application of the Dept. of Educ., Appeal No. 12135; Application of the Dept. of Educ., Appeal No. 11-13). The ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from the special education services that the school district should have supplied in the first place. Application of XXXXXXXXX, Appeal No. 13-048. Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See Newington, 546 F.3d at 123. Courts have found that "a flexible approach, rather than a rote hour-byhour compensation award, is more likely to address (the student's) educational problems successfully." Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007).

The Evaluation dated November 11, 2011, recommended, among other things, to “Provide Applied Behavior Analysis” for ER (DOE Ex. 7 at 5). Ms. testified that she . Specifically, explained that she and the paraprofessional used repetition with well through repetition : 116-118). Ms. as “trained” in but had no formal training in that method (McCabe: 117-118).

Ms. ’s testimony about the “repetition” she and the paraprofessional provided to ER at the “ ” in the classroom was not sufficient to demonstrate was provided with as recommended in the November 2011 Comprehensive . Thus, I find that for the 2012-2013 and 2013-2014 school years.

applied for home instruction for the 2013-2014 school year on or about November 1, 2013 (Parents’ Ex. L). did not begin to receive home instruction until January 7, 2014 when five hours per week was provided. However, it was subsequently determined that five hours was not sufficient and beginning on February 24, 2014 the number of sessions was increased to ten hours per week (Hearing: 132-133).

I find to compensatory home instruction in the amount of ten hours hours per week to compensate for the period from November 1, 2013, when the parents requested home instruction, to January 7, 2014 when home instruction was implemented. The total number of hours is to be calculated based on the number of school days during the relevant time period.

The additional hours of instruction, as well as the ten hours of home instruction receiving, shall incorporate as per November 11, 2011 evaluation. ’s home instruction shall continue until the CSE reconvenes and develops an appropriate IEP for based on the new evaluations and other relevant information. During this period is to receive his related services of

ORDER

In light of the above findings of fact, it is hereby ordered that:

a) If the Department of Education has not already done so it is to provide the parents with authorizations for independent neuropsychological

b) The Department of Education is to conduct upon receipt of this Decision and Order or as soon as is physically available for the assessment;

c) Within ten days of receiving the results of the foregoing evaluations and the the CSE is to convene an IEP meeting with all of the required members present and develop a program and , including related services, based on the results of those evaluations based on the results of the FBA;

d) The CSE is to provide a new, appropriate setting in which the services and program recommended in the new IEP can be implemented, even if such a setting requires deferral to the CBST for a non-public school placement;

e) Upon receipt of the required documents the Department of Education is to arrange for nurse with him throughout the school day, specifically from the time he gets on the bus in the morning until he returns home on the bus in the afternoon;

f) is to continue home instruction incorporating methodology in the amount of ten hours per week and he is to receive the related services mandated on his May 16, 2013 IEP until his health improves and an appropriate program and placement has been developed for him;

g) Until is able to return to a school program the Department of Education is to provide with and additional ten hours per week of home instruction to compensate for the period from November 1, 2013, when the parents requested home instruction, to January 7, 2014 when he began to receive home instruction. The total number of hours is to be calculated based on the number of school days during the relevant time period. Those hours must include ; and

h) The Department of Education is to provide the parents with a total of five 50- minute sessions of parent training and counseling as mandated by the June 1, 2012 and May 16, 2013 IEPs. Those sessions shall be specifically geared to helping the parents support the implementation of ’s IEP. Dated: September 10, 2014

,ESQ.

Impartial Hearing Officer

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 Due Process Complaint dated

January 29, 20134, 12 pages

Exhibit 2 Due Process Response dated

February 5, 2014, 4 pages

Exhibit 3 Individualized Education Program

(IEP) dated May 16, 2013, 19 pages

Exhibit 4 Individualized Education Program

(IEP) dated June 1, 2012, 21 pages

Exhibit 5 IEP Amendment dated June 12,

2013, 2 pages

Exhibit 6 New York Letter dated June 6,

2013, 1 page

Exhibit 7 Comprehensive Evaluation dated

November 2, 2011, 6 pages

Exhibit 8 Occupational Therapy Annual

Review Plan dated May 31, 2012, 2

pages

Exhibit 9 Evaluation Report dated May 6,

2012, 2 pages

Exhibit 10 Discrete Trial Data Sheets dated

2012 & 2013, 6 pages

Exhibit 11 Report Card 2012-2013 Fall dated

2012-2013, 3 pages

Exhibit 12 Report Card 2012-2013 Winter dated

2012-2013, 3 pages

Exhibit 13 Communication Arts Progress

Report dated August 2013, 2 pages

Exhibit 14 AA-5 Form & Cover Letter dated

March 18, 2014, 7 pages

Exhibit 15 AA-5 Form & Cover Letter dated

March 18, 2014, 7 pages

Exhibit 16 AA-5 Form & Cover Letter dated

March 18, 2014, 7 pages

Parents:

Exhibit A Attendance Reports, Grades 3-5,

various dates, 5 page

Exhibit B Update Report dated March 17,

2008, 2 pages

Exhibit C Assessment dated September 24,

2010, 4 pages

Exhibit D DOE Evaluation dated September

24, 2010, 6 pages

Exhibit E Individualized Education Program

(IEP) dated December 15, 2010, 21

pages

Exhibit F Technology Evaluation dated April

7, 2011, 9 pages

Exhibit G Annual Review Plan dated May 15,

2012, 2 pages

Exhibit H Annual Review Plan dated May 15,

2013, 3 pages

Exhibit I Assessment dated March 10, 2014,

3 pages

Exhibit J Therapy Fee Schedule updated

April 1, 2014, 1 page

Exhibit K Materials undated, 7 pages

Exhibit L Home Instruction Referral Forms

undated, 3 pages

Exhibit M Request for Medical

Accommodations dated February 26,

2012, 2 pages

Exhibit N Report, September 26, 2012, 2

pages

Exhibit O Letters to from dated August 19,

2013, May 28, 2013 and October 4,

2012, 9 pages

Exhibit P Letter to dated April 11, 2013, 2

pages

Exhibit Q General Letter dated June 16, 2013,

1 page

Exhibit R dated September 1, 2012-March 25,

2014, 66 pages

Exhibit S Parent 504 Packet and Application to

Supervisory RN undated, 81 pages

Exhibit T Parents’ Copy of May 16, 2013

Individualized Education Program

dated May 16, 2013, 16 pages

Exhibit U Communication Journal dated 2012-

2013, 26 pages

Exhibit V Parent Notes undated, 1 page

Exhibit W Omitted

Hearing Officer

Exhibit I Case Follow Up sheets indicating

extensions of the timeline, 5 pages

Exhibit II Department of Education Closing

Brief and Memorandum of Law

dated July 11, 2014, 9 pages

Exhibit III Parents’ Closing Brief dated July 22,

2014, 23 pages

Exhibit IV Email from dated July 22, 2014, 1 page

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Footnotes

[2] A special class in a community school and a general education class were rejected because they are not sufficiently intensive to meet ER’s needs (Maresca: 39, 48-49).

[5] In light of my finding that ER was denied a FAPE for the reasons explained above, this Decision and Order will not address the remaining contentions raised by the parents on this issue.