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: July 19, 2013

November 14, 2013

January 8, 2014

January 15, 2014

January 30, 2014

March 12, 2014

Actual Record Closed Date: April 18, 2014

Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 19, 2013

Attorney — Parents

Dept. Designee — DOE

N NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 14, 2013

Attorney — Parents

Dept. Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 8, 2014

Attorney — Parents

Mother — Parents

Attorney — DOE

Special Ed. Teacher — DOE

General Ed. Teacher — DOE

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

Attorney — Parents

Mother — Parents

Attorney — DOE

Director BAC — Parents

Unit Coordinator — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 30, 2014

Attorney — Parents

Mother — Parents

Attorney — DOE

ABA Supervisor — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 12, 2014

Attorney — Parents

Mother — Parents

Attorney — DOE

BCBA — Parents

BACKGROUND

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case # . The hearings were conducted at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its attorney Ms. and the parent was represented by their Attorney .

THE PARENT’S POSITION

Individually and on behalf of their son (T.G.), the parents maintain that the New York City Department of Education (“DOE”) failed, procedurally and substantively, to offer . a free and appropriate public education (“FAPE”) for the 2013-2014 school year. Additionally, that .’s special education program at the (“ ), in conjunction with homebased Applied Behavioral Analysis (“ABA”) therapy, ABA supervision and consultation, and five hours per week of is appropriate for him, and that equitable considerations support and his parents. As such the DOE should reimburse the Parent for the tuition, costs, and expenses of T.G.’s 2013-2014 program.

THE DEPARTMENT’S POSITION

That the Individualized Educational Plan (“IEP”) developed was tailored to meet the student’s educational needs. Therefore, the parent’s request should be denied. Alternatively, if considered, the DOE submits that the unilateral placement/program is inappropriate. Finally, the equities favor the DOE because the parent had no intention of placing this student in a public school. The DOE submits that tuition and funding should be denied in full.

THE DEPARTMENT’S CASE

On April 18, 2013 a duly constituted team convened and held an IEP meeting in order to develop an IEP for the student. Ex. 3, T. 34. Ms. , who has dual certification as a special education and a general education teacher sat on the review. T. 33-34; participated as the school psychologist. T. 34. The student’s then-current providers, (speech therapist), (home ABA therapist) and , educational director of , a parent member, the parent and the student were present. T. 38-39, 565, Ex. 3-21.

DOE’s counsel maintained that the CSE team had a “plethora” of information in order to develop the IEP; the team had a progress report from (Ex. 7), proposed goals from (Ex. 8), home program progress reports (Ex.9, 10), an observation and report by Dr. Carole Fiorile (Ex. 11), and a DOE conducted classroom observation (Ex. 5) T. 39-

41. These documents were discussed at the meeting. T. 43. Ms. stated that she went over her report at the IEP meeting. T. 299, 565; a Vineland and psychoeducational report were available to the team (Ex. 1, 6). The DOE attempted to conduct a new psychoeducational evaluation in the summer of 2013; however the student was unable to be tested. T. 15. The speech and home providers described the student’s needs and programs he was working on. T. 565, 568, 601. Ms. stated that the team had sufficient information to develop the IEP. T. 43.

The team recommended a 12 month with a . T. 63-65. Ms. Forquet stated that the team believed that the student needed opportunities to interact with peers. T. 73. The parent objected to the (there were no objections to the , T. 63-64), however the team believed that a 6.1.1 program, as opposed to a program, would provide such opportunities. T. 64.

Ms. noted that although the after school ABA provider criticized the class recommendation that her criticism is speculative because she never observed in a group setting. T. 469. The team also believed that the student did not require after school services because the recommended school day program would meet his needs. T. 74. Counsel opined that while the team did not recommend after school services for that the skills worked on after school are contained within the IEP. For example, the after school program works on functional skills such as cleaning, laundry, identifying items/rooms in the house, making purchases, cooking, hygiene and leisure skills. T. 416419, 582. Ms. further stated that the IEP includes goals that address these skills: a community awareness goal with an objective addressing the use of a debit card; a goal addressing domestic skills; a reading goal with an objective to address identifying objects; a math goal that includes an objective addressing keeping track of spending on a ledger; a prevocational goal; a self-care goal, and leisure skills goal.

The CSE asserts that the documents available to the CSE were from were relied upon and considered. This is reflected in the IEP. For example, the IEP management needs contain specific ABA principles that uses and recommends. Ex. 3-3, 3-4; see also the testimony of the after school ABA provider, T. 454-455, where she discusses ABA strategies and management needs that are included within the IEP. Ms. also maintained that the student’s after school ABA providers use ABA strategies and is contained within the IEP. More particularly, management needs such as data collection, prompting and prompt fading, chaining, discrete trials, and reinforcement. Ex. 3-3 are memorialized in the IEP and are all of the techniques used by the after school providers.

T. 454-455.

The CSE team did not write “ABA” on the IEP or recommend home services, the IEP included such principles and the skills worked on. Counsel for the DOE also maintained that provided the team with “proposed goals and objectives” for the 20132014 school year. Ex. 8, T. 57, which were discussed at the IEP meeting. T. 57-58. Ms. Russell from BAC stated that the student’s needs and areas that needed to be worked on were discussed at the IEP meeting. T. 298, 326. Additionally, the IEP contains goals addressing the student’s needs in academics, . T. 59-61, Ex. 3-6 through 3-12. The IEP also includes goals to address handwriting, leisure activities, prevocational skills, selfcare and socialization. Ex. 3-9 through 3-13.

Counsel for the DOE noted that Ms. critiqued the IEP goals and the fact that the goals mandated monthly reporting; however, Ms. never taught school outside of an ABA program. T. 312-313. Additionally, she never contacted the DOE or CSE to discuss her concerns with the IEP. T. 319. It was also argued that the student’s references and looked at the IEP goals within the IEP. T. 395 and therefore any challenge to the IEP speech goals are disingenuous.

The team used a SMARTBOARD at the IEP meeting, which enabled them to view notes taken during the meeting T. 44, 54. As stated above, .’s academic, speech, were discussed at the IEP meeting. T. 44-47, 53. The IEP also, recommends a number of management needs. Ex. 3-3, 3-4, T. 55, which were provided and were discussed at the IEP meeting. T. 55. Ms. stated that she would have added information to the student’s performance description; however, the information that she would have added was included in the goal section. For example, the student’s need is in the IEP as a goal (Ex. 3-13); the student’s ability to work on labeling emotions is included in an expressive language goal (Ex. 3-7), the student’s interest in a scooter is also included within a goal (Ex. 3-7).

The student’s behaviors were discussed at the IEP meeting. T. 48, 53; the team relied upon a BAC behavior plan for the student which was discussed at the IEP meeting

T. 310. The IEP included a Functional Behavior Assessment (“FBA”) and a Behavior Intervention Plan (“BIP”) that referenced the behavior plan, which is included as part of the IEP. Ex. 3-24, T. 51-52. The plan also sets forth specific strategies/procedures to address each behavior. Ex. 3-24.

Counsel noted that Dr. was not at either of the IEP meetings and that her opinion of the IEP and its recommendations should be disregarded. T. 534. Furthermore, Dr. never administered any assessments to the student T. 546. Counsel for the DOE maintained that an FBA and BIP were developed and that the IEP itself addressed the student’s . First, the IEP recommends a crisis paraprofessional to assist the student throughout the school day. T. 63.; second, the IEP management needs set forth behavior techniques such as reinforcement schedules, prompting, and redirection. T. 49, Ex. 3-3. and lastly, the IEP described the student’s . For example, the IEP indicates that the , hand flapping and has . Ex. 3-2. The IEP indicates that a token board is effective in addressing . Id. The IEP also includes a goal that specifically addresses the . Ex. 3-8. Additionally, page 4 of the IEP indicates that the student . Ex. 3-4, 3-5.

Regarding related services, was recommended to receive ; the recommended mandates are reflected in the IEP. Ex. 3-14. The team had a report (Ex. O), OT report (Ex. N) and the presence of the student’s provider at the IEP meeting. T. 71-72. The related service recommendations and goals were developed based on the input of the providers through the reports and verbal information provided at the meeting. T. 72-73. There were no objections to the related services recommendations. T. 73, 604.

Parent Training and Counseling recommendations were indicated on the IEP. T. 56, Ex. 3-3. Regarding Assistive Technology, the student requires the use of assistive technology and the IEP recommends a dynavox Ex. 3-14. Concededly, this was an error and as per the DOE’s counsel, the sections of the IEP are not meant to be read in a vacuum; the IEP indicates that the student uses an iPAD and the IEP even incorporates the I Pad. Additionally, on the first page of the IEP, it indicates that the student “has been learning to use Proloquo2go on the iPAD.” Ex. 3-1. The use of an iPAD is also indicated on the second page of the IEP where it states that the student “has adjusted well to using the iPAD as an assistive communication device.” Ex. 3-2 and the IEP describes what the student is able to do on the iPAD. Id. The IEP also contains goals that incorporate the AT device. Additionally, at the time of the April IEP meeting, the student was using Proloquo2go as a communication program. T. 397. Counsel stated that is irrelevant that the student currently uses Autisimate as the IEP is a snapshot in time.

The IEP includes a distinct transition plan and post-secondary goals. Ex. 3-5, 3-

15. Based on conversations at the meeting, the team included goals addressing community involvement, domestic skills and vocational skills. Ex. 3-9, 3-11, 3-12. The IEP describes the student’s interests and the prevocational skills the student was thencurrently working on.

On September 10, 2013 the DOE met to develop another IEP for the student in order to discuss new testing. T. 13-14, 15. This IEP recommended a program (the same program recommended in the April IEP). Ex. W. The DOE maintained that it did not present any additional evidence pertaining to this IEP because (1) the April IEP was already in effect for the start of the 2013-2014 school year and (2) it was very clear that the parent disagreed with program recommendation.

In June 2013, the DOE sent the student’s parents a Final Notice of Recommendation (FNR) . T. 569, 108, Ex. S. Counsel for the DOE stated that it is clear that the parent relied solely on the IEP and program recommendation when making educational decisions for the 2013-2014 school year. More particularly, there was evidence that as early as the IEP meeting of April 18, 2013, that the parent disagreed with the program recommendation because she disagreed with the recommendation T. 569. The parent was not told which classroom the student would have been placed at Maspeth.

T. 593; this was confirmed as she state that the school did not tell the family which class the student would be in, T. 537. Ms. stated that this is further evidence that the DOE need not have defended a specific class or teacher as the school never identified such a person or classroom and any claims would then be speculative. Counsel opined that the parent’s allegations concerning the proposed school should not to be considered for two reasons. First, the parents demonstrated that they would have not have permitted . to attend the school because they disagreed with the recommendation and second, that the majority of the parent’s allegations concerning the placement are speculative. The DOE submits that nothing the parent learned during the school visit warranted a rejection of the placement. The school works on student’s transition needs and Ms. stated that she discussed transition information on the tour. T. 118. The school offers opportunities for vocational training and employs a transition coordinator. T. 125-126

On the tour Ms. described the TEACCH model which includes some 1:1 instruction. T. 119-121. The parent was never told that the student would have been placed in a specific classroom with a specific teacher. T. 134. However, Dr. formulated calculations as to how much individualized instruction a student would be able to receive in a classroom that she visited for “several minutes.” T. 539. She did not speak to the teacher of this classroom and she was never told that the student would have been in that classroom; she based the calculations on a schedule she saw posted in the classroom. T. 539-540 and she did not contact the school to share her calculations or concerns. T. 540-

541. Additionally, Dr. Fiorile was shown a graph of an unidentified student for with an unknown program. T. 537-539; she concluded that based on this graph, this student did not make progress and therefore would not make progress. Counsel stated that this is completely .

The DOE maintained that the teachers collect data on a daily basis. T. 121. Some teachers at the school are trained in ABA and the school employs a behavioral specialist.

T. 122-123. The school uses the “Unique Curriculum” which focuses on independent living and employment. T. 136. The school administers the SANDI assessment to students, in addition to a level one vocational assessment. T. 137-138 and related services are delivered according to the student’s IEP. T. 124-125. Parent and travel training is offered and available for parents and child. T. 126-128. When asked about timers on the tour, the school informed the parent that timers are used in a variety of situations. T. 130131.

The school uses a school wide behavioral system called positive behavior intervention support (“PBIS”). T. 139. PBIS allows a student to earn points in order to attend certain clubs. T. 140; each classroom has its own behavior system. T. 141.

The DOE sent the parent two subsequent placement recommendations; concededly, one of these offers was made in error as it recommended a Manhattan school; subsequently, they offered a Queens school. These offers were made as a result of the completion of the September IEP and concededly after the 12 month school year began. However, the DOE maintained that they previously made a timely program and placement offer prior to July 2013.

The DOE asserts that BAC is inappropriate as it does not meet the student’s individual needs T. 286. At least one of the student’s goals was discontinued because the student was not making progress. For example, because the student did not make progress in labeling colors, the goal was discontinued. T. 291-292. Additionally, BAC does not work on skills such as brushing teeth, washing face, making bed. T. 334. The home program works on these skills. Id.

The DOE opined that is too restrictive as there are only 13 students. T. 282 and that the students are not age appropriate for . The student turned during the 2013-2014 school year, making him one of the oldest students . T. 281; there is only one other student within the student’s age group. The other students are aged between old and 13 years old. Id. Counsel stated that this is inappropriate as it does not afford the student age appropriate peers for purposes of modeling and socialization.

Furthermore, does not provide related services. T. 322. The student was recommended to receive due to significant deficits in speech, sensory areas and motor skills. According to the student suffers from and therefore required speech therapy. T.

323. However, does not provide and does not work on the student’s specific articulation issues T. 386-387. Therefore the student has to look outside of school to receive these related services. T. 323-324.

Ms. and the mother believed that the after school/home services were necessary.

T. 335, 605, 447. These home programs are necessary because they provide education and services does not provide. Ms. maintained that this is evidence that does not meet the student’s needs.

Additionally, the DOE asserts that the home program is inappropriate; the student’s home speech provider, Ms. , has never observed the student in school. T. 332 and she does not implement ABA. T. 382. Also, Ms. does not take any formal data, as an ABA provider would. T. 384-385. While she incorporates speech skills within the vocational areas that provides, she does not accompany the student to his job sites. T.

388. She does not administer any formal speech assessments or share her session notes with . T. 393-394. Ms. does not take the student into the community and does not invite other students to the sessions T. 394. It is noted that the student does not receive all of his mandated speech sessions; . is to receive speech five times per week for 60 minutes, or five hours a week of speech. T. 370, however only receives two hours per week. T. 370. The family is looking for another speech provider to provide those missed sessions. It was argued that this indicates that they also believe the student requires five hours per week of , which he is not receiving. Finally, the student does not receive any

T. 598-599; the family is looking for an and agrees that the student requires

T. 604. T.G. has been described as a student with and as needing .

Finally, the DOE stated that the equities do not favor the Parent; as never had the intention of enrolling her child in a public school and that she has not met her burden to establish that she cooperated with the DOE. The parent disagreed with the recommended program but knew that the school offers were for . T. 597-598; she knew that the recommended schools did not exclusively implement ABA and believed the student required ABA. T. 598. The DOE maintained that the parent cannot credibly state that she would still seriously consider the public school recommendation. Additionally, other than stating that the student exhibited “ ” and received the parent did not give any further descriptions. T. 114-115. The only objection made at the IEP meeting was the parent’s disagreement with the program recommendation. T. 603. In fact, the parent’s letters to the DOE do not set forth any objections to the IEP. Exs. S, R. However, after the parent received the April IEP, she had concerns about the IEP but she never contacted anyone at the CSE or DOE to express those concerns. T. 604. The DOE was not put on notice of any IEP flaws until the DPC was filed. Counsel stated that this is not a cooperative approach and tuition should be denied.

THE PARENT’S CASE

. has been diagnosed as . (Exs. 4, E, M, O; Tr. 356, 560-561); he presents with serious expressive and an iPad equipped with the AutisMate program to augment his communication. (Tr. 178-180, 362, 548). . also exhibits including (Tr. 179, 214, 220-221, 433; Exs. F-1, I). . (Tr. 561, 563). . added that (5’10” and 171 pounds), which makes even more serious. (Tr. 563). maintained that based on the nature and extent of his difficulties, that her son requires programming carefully tailored to his individual educational needs, which the DOE failed to provide for him.

The “CSE” convened a meeting on April 18, 2013 to develop an IEP for T.G. for the 2013-2014 school year. The attendees were: , DOE Psychologist . (Ex 3-21; Tr.37-38). Prior to the meeting, . provided the CSE with .’s progress reports from and his home ABA program. (Exs. 7, 8, 9, 10, 11; Tr. 38). At the meeting, . and the professionals who worked with . requested a educational program utilizing ABA principles (Tr. 64, 569). The DOE recommended that . attend a special class. (Ex. 3-14; Tr. 63). Following .’s IEP meeting, the DOE issued a “FNR”, identifying (“ ”) as ’s DOE school placement for 2013-2014. an educational consultant, and found that it would not be appropriate for (Tr. 509-510, 570). wrote to the DOE detailing her concerns with the proposed program at , and indicated that she was available to view other public school placements which the DOE might have available for T.G. (Ex. R-2).

Subsequently, the DOE attempted to conduct a Psycho-Educational evaluation of ., but the results were inconclusive (Tr. 16, 22, 249, 573); as the testing was not completed due . (Tr. 15). The CSE reconvened on September 10, 2013 to review the results of the evaluation. (Tr. 14, 574-575; Ex. W); (teacher), Ms. supervisor) participated in the meeting. (Ex. W-22). Ms the DOE Psychologist who attempted to assess ., was “conspicuously” absent from the meeting (Tr. 575).

Ms. testified that the CSE discussed the program recommendation, and informed that a placement officer would send her a school placement for (Tr. 23). The Team scrolled through .’s IEP on a SMART board and asked if any changes should be made, however, they did not alter T.G.’s IEP. (Tr. 27, 327-328, 575). After the meeting, the DOE issued an FNR recommending placement for , a school located in Manhattan. (Ex. U; Tr. 576). When called the DOE to schedule an appointment to visit, she was advised that the FNR had been sent in error and should be disregarded. (Tr. 576; Ex. T) and was informed that the DOE would issue a corrected FNR with a school (Tr. 576). D.G. received another FNR in September 2013, proposing that School (“ ”) (Ex. X). D.G. and Dr. visited the school. Counsel stated that in addition to the fact that the placement recommendation had been untimely, the Parent found that it would not meet needs. (Tr. 519-524, 577-578).

Ms. opined that given that the DOE failed to make appropriate program and placement recommendations for . that the Parent unilaterally placed in an appropriate programming for the 2013-2014 school year, with home-based programming at focuses on academics, language skills, functional daily living skills, pre-vocational skills and intensive ABA instruction. (Ex. 8-1). T.G.’s home-based ABA program focuses on academics, self-help, pre-vocational, leisure, and communication skills; his home-based speech and language therapy targets . (Ex. O, P). Parent maintained that the DOE developed IEPs for T.G. in both April and September 2013, for the 2013-2014 school year. (See Exs. 3, W). Furthermore, it is alleged that the DOE indicated that it would not defend the September 2013 IEP, though it was the most recent IEP developed. (Tr. 18, 99-100, 102, 574). Therefore, T.G.’s parents’ challenged the September 2013 IEP, as set forth in their Amended Due Process Complaint and as per Parent’s counsel remain unanswered. (Ex. Z-8-11). Ms. further argued that that the DOE did not attempt to defend its latest IEP recommendations for 2013-2014 and that the DOE cannot demonstrate that it offered a FAPE.

Counsel stated that the DOE’s IEPs were inappropriate for .; they were procedurally and substantively deficient and failed to offer a FAPE. Furthermore, the DOE committed a number of errors that impeded .’s right to receive a FAPE as follows:

1. The DOE predetermined .’s programming and failed to consider D.G.’s requests. As per counsel the DOE recommended that . attend a special class, the DOE’s “stock program” for students with Autism. Ms. Fourquet, the CSE’s special education teacher, lacked sufficient familiarly with program, failed to justify the DOE’s recommendations and was not certified to teach high school classes as her teaching certification was in early childhood (Tr. 80); she last taught in a special education class twelve years ago, and has never taught a class for students with autism. (Tr. 80-81).

Ms. testified that the DOE did not recommend extended day or after school services for T.G. because, in her opinion, . would need to rest when he arrived home from school. (Tr. 74). Counsel opined that Ms. failed to justify this statement, and the evidence demonstrated that T.G. requires home-based programming in addition to school. In particular, a lack of structure affects . adversely; he becomes tense and frustrated. (Tr. 445, 586) and needs constant programming to prevent regression. (Tr. 499, 587).

At the April meeting, Ms. stated that requires programming. And that a class would be inappropriate. Even the DOE’s own evaluation recommended that “would benefit from a highly structured specialized instruction using appropriate behavioral based intervention. (Ex. 6-3).

disagreed with the DOE’s program recommendation, and asked the DOE to consider ABA programming in school and on an extended day for . (Tr. 64, 231, 569, 603-604). Counsel stated that the DOE presented no evidence to support its recommendation, which runs contrary to the recommendations of the professionals who know and have worked with for years. Following the April meeting, the DOE attempted to evaluate T.G. (Tr. 573-574); Ms. Evans testified that . was “not able to really complete a lot of the testing” due to behavioral issues, and noted that the evaluation was “pretty inconclusive.” (Tr. 15, 22). Ms confirmed that the DOE evaluators had terminated the evaluation after about five minutes because they feared that . was going to have an aggressive episode. (Tr. 235).

When the CSE reconvened in September, they read the incomplete PsychoEducational evaluation report; Ms. stated that despite this further proof of the severity of T.G.’s maladaptive behaviors, the DOE maintained its recommendation for a program. (Ex. W-14). The CSE briefly reviewed the April IEP and did not indicate that anything would be updated or changed. (Tr. 23, 27, 442, 575). . and the professionals who worked with T.G. again expressed disagreement with the program recommendations (Tr. 235, 327, 602-603).

Though the DOE did not discuss changing the April IEP, the September IEP includes unilateral changes to the goals and objectives. (Compare Ex. 3 with Ex. W; see Tr. 273-279). Counsel stated that the goals were not discussed collaboratively and failed to incorporate concerns and considerations. Parent contends that Ms. ’s and Ms. Evans’s testimony established that the DOE did not come to ’s IEP meetings with an open mind. The program the DOE selected for . lacked the components that he needed to progress, including instruction and ABA intervention. Counsel opined that the DOE also denied . meaningful participation by not seriously considering her requests, and for changing .’s proposed IEP unilaterally.

2. The DOE failed to develop appropriate and objectively measureable goals for with all Team members’ input. The DOE copied several goals and objectives from . (Tr. 57; Ex. 8); the goals were designed to be implemented in a ABA program, and could not be carried over appropriately to a special class program. (Tr. 262). Goals were not drafted at the April meeting; was informed that the CSE would “develop goals and write up the IEP at a future date,” but she was not included in this process. (Tr. 565; see also Tr. 568).

Ms. reviewed the April IEP and explained that some of the goals were “too open” or “vague” and did not target ’s needs. (Tr. 260). She testified the measurement criteria of “one time per month” were too infrequent to accurately track performance. (Tr. 259, 261). Furthermore, many of the proposed goals were not attainable or appropriate for . ie, a goal targeting reading skills and answering questions about a book as is unable to read. (Ex. 3-10; Tr. 262-263). Ms. Russell also stated that the math goal was unattainable. (Ex. 3-11; Tr. 266) as T.G. cannot track spending on a ledger, use a calculator, or add and subtract (Tr. 266-267). Furthermore, the proposed vocational goal was stated to be is inappropriate; the skills were not broken down into small teachable steps, as T.G. requires. (Ex. 3-11-12; Tr. 268). Ms. opined that would be unable to learn if the whole task were presented at once, as per the proposed goal. (Tr. 268). Similarly, the self-care goal failed to break down the steps discretely. (Ex. 3-11; Tr. 270).

Ms. testified that at the September meeting, goals and objectives were discussed, “but not in detail.” (Tr. 22; see also Tr. 327-328). Though there was no discussion about changing any of the goals, the September IEP; there were notable differences from the April version. (Compare Ex.^[3] with Ex. W; Tr. 238; 273-275). The parent contends that the new goals which were not discussed were added, and several goals were removed. Additionally, Ms. testified that goals which included mastery criteria of 75% were not appropriate, as failure to demonstrate a skill 25% of the time is too high of a benchmark for T.G. (Ex. W-6-7). would not make gains based on these goals, and Ms. Russell noted that every skill must be broken down into more manageable components. (Tr. 279). skills in a group. (Tr. 228, 446, 516-517, 524). Ms. explained that ABA utilizes basic principles of behavior such as reinforcement to , and was an appropriate mode of instruction (Tr. 166). Ms. has observed many of the DOE’s special classes, and is familiar with the type of instruction implemented in such settings. (Tr. 228). Based on her knowledge, she testified that and display a variety of to lack of individual instruction in a . (Tr. 228). Dr. Fiorile also observed at the two schools the DOE recommended for T.G. for 2013-2014. (Tr. 509, 519). She testified that TEACCH methodology, which is employed in the , would not be appropriate for (Tr. 515) as it involves instructing all students in a group, with small group or independent work to follow. (Tr. 516). .’s ability to work independently is “very limited,” and he requires individualized 1:1 programming. (Tr. 516-517).

Dr. added that if . were placed in a program without ABA instruction, he would experience “ ." (Tr. 517). Ms. agreed that could not learn in a group, based on what his data has shown. (Tr. 446).

4. The DOE failed to recommend parent training, to conduct an FBA and to develop a proper BIP as a classroom was necessary due to , Id. Ms. opined that the evaluative information before the DOE at .’s IEP meeting indicated that T.G. demonstrated significant needs and required additional supports beyond what the DOE was recommending. (Exs. 8, 9, 10). At the time of the IEP meeting, .’s academic skills were , and he showed in behavior management, , self-help, communication, prevocational, and social-emotional skills. (Exs. 9-1, 10-1). Counsel asserts that T.G. required an ABA program including repetition, reinforcement, structure, supervision, and systematic programming, generalization, and maintenance of acquired skills. (Ex. 9-11). Furthermore, testimony from the professional who have worked with . supports the finding that a special class program would be insufficient to address his needs, especially his behavioral needs. All witnesses familiar with . agreed that he requires a ABA program to progress. Ms. opined that a special class would not be appropriate for . because he would become “ ” and would display a variety due to the lack of individual instruction. (Tr. 228). She added that learning a group environment would be “incredibly difficult” for (Tr. 228). Ms. concurred and did not believe could learn in a group, as he needs systematic ABA instruction, to acquire new skills. (Tr. 446). Dr. testified that given the severity of .’s needs, it was critical for . to continue receiving an ABA program. (Tr. 495-497); she added that . cannot sustain the attention necessary to learn in a group setting. (Tr. 524).

Parent alleges that the DOE did not provide for or ABA instruction in the IEP, and failed to consider that programming for him. (See Exs. 3, W). Ms. justified the recommendation that a program, so that . could have an “opportunity to participate with other students.” (Tr. 69). However, Ms. opined that she seemingly ignored the consensus that . could not learn in a group. Ms. offered no further justification for the DOE’s class recommendation. (Tr. 24). Additionally, Ms. did not have any experience with ABA. (Tr. 57) and Ms. testified that she had observed ABA instruction, but never implemented it herself. (Tr. 12).

Counsel stated that in .’s case, ABA is not merely a preferred teaching methodology; it is necessary for him to acquire skills; the uncontroverted evidence reveals that T.G. requires ABA instruction to learn. Dr. reported that “[t]he only treatment methodology that will continue to be effective for [T.G.] is implementation of ABA strategies.” (Ex. F-10). Likewise, indicated that “requires a structured teaching setting utilizing the principle of [ABA] for him to continue acquisition of skills.” (Ex. 82). .’s home based ABA Team indicated that it is “crucial” for . to have experienced ABA teachers working with him. (Ex. 9-11).

5. Counsel also stated that the DOE Failed to develop an appropriate FBA and .; he engages . (Tr. 179, 214, 220-221, 433; Exs. F-1, I). The DOE attached an FBA and BIP for to its proposed IEP, but the DOE failed to provide . with either document until ’s impartial due process hearing. (Exs. 3-22-26; Tr. 607). At the April IEP meeting, the DOE Team members , but did not discuss that they would suggest using that plan in a different environment, i.e., a special class. (Tr. 250). Additionally, there was no discussion about whether the DOE would conduct an FBA. (Tr. 249). . testified that she did not receive a copy of an FBA or BIP at either IEP meeting. (Tr. 607). Dr. Fiorile testified the purpose of an FBA is to identify interfering behaviors and determine the function(s) of the behaviors and also is used to draft a behavior plan to remediate the behaviors. (Tr. 484-485). Ms. Russell highlighted the importance of direct observation in conducting an FBA, the DOE failed to do same (Tr. 249-250). serve different functions in different environments, and an improperly conducted FBA could lead to an ineffective

BIP. (Tr. 250).

Ms. maintained that the DOE’s FBA is insufficient and does not include any of the necessary information to develop a proper BIP. Ms. “vaguely” knew what an FBA is. (Tr. 48); the DOE’s FBA lacks observational data, targeted behaviors, behavioral triggers, environmental conditions . (Exh.3-22). Counsel stated that the FBA merely indicates “see attached BIP.” (Ex. 3-22). Dr. Fiorile testified that “[t]here’s no FBA here,” and noted that it was improper to refer to a BIP in an FBA because the FBA should be developed first. (Tr. 528; see also Tr. 484-485). The DOE did not develop its own BIP for T.G. (Ex. 323); instead it attached behavior plan to its proposed IEP. (Tr. 251; Ex. 3-24-26). Ms. explained that has a “DRO system” in place for T.G. (Tr. 252). Dr. Fiorile found it “highly unlikely” that the DOE would be able to implement the because based on her observations, the staff does not have that level of expertise and training to implement a DRO plan. (Tr. 527). The plan takes a high level of intervention and monitoring which cannot be accomplished outside of a environment. (Tr. 527).

6. The DOE failed to recommend appropriate assistive technology (“AT”) for . and failed to document accurately .’s need for an AT device. In developing an IEP, a school district shall “consider whether the student requires [AT] devices and services, including whether the use of school-purchased [AT] devices is required to be used in the student’s home or in other settings in order for the student to receive a FAPE. The proposed IEPs include a recommendation for a Dynavox. (Exs. 3-14, W-15). Ms. Fourquet did not recall if there was any discussion regarding an AT evaluation, and she did not know from where the recommendation for a Dynavox came from (Tr. 81, 84). Ms. , Ms. , and each testified that there was no discussion at the IEP meetings about a Dynavox, nor was there any mention of an evaluations. (Tr. 233-234, 395, 582). Concededly, T.G. uses an iPad as an AT device (which was noted on reports submitted to CSE). (Tr. 81, 362; Ex. 9-1, 10-1). D.G. confirmed that . had been using an iPad for at least two years. (Tr. 590); he initially used the “Proloquo2Go” program, and then updated to “AutisMate.” (Tr. 338, 362). Ms. testified that “AutisMate” encompasses all domains, and is fluent in programming. (Tr. 428). Ms. explained that “AutisMate” produces a verbal output to assist . in forming intelligible responses and expressive language. (Tr. 362) Ms. testified that the Dynavox is very bulky and would be stigmatizing were to carry it around with same-aged peers. (Tr. 396); Ms. agreed that a Dynavox is “definitely a step backwards.” (Tr. 443). T.G. requires a device that is more sophisticated and age-appropriate than what the DOE proposed. (Tr. 443).

Ms. testified that the iPad has been beneficial to ., and he has demonstrated ability to communicate his wants and needs using “AutisMate.” (Tr. 180, 339). She noted that without his iPad, staff cannot understand ., and that he demonstrates maladaptive behaviors as a result of such inability to communicate effectively. (Tr. 181). Moreover, the iPad is multifunctional for and he uses it for leisure activities, answering social questions, and identifying personal information. (Tr. 363, 395, 547).

7. The DOE failed to recommend parent counseling and training, . testified that her son to the point where she and her , and thus they need instruction on how to manage ’s . (Tr. 563). She testified that parent training is important, and without it would not continue to progress. (Tr. 585). Parent claims that the DOE failed to present evidence sufficient to sustain its burden of demonstrating an offer of FAPE. Ms. who met with . and Dr. when they toured testified in support of the program. (Tr. 110, 510; see also Ex. E). Ms. testified follows the TEACCH model, under which students work in groups and independently. (Tr. 119, 516). Dr. noted that TEACCH-based instruction would not be appropriate for . (Tr. 515). His ability to work independently is “very limited,” and he continues to require more targeted individualized program. (Tr. 516-517). Ms. recalled that . stated that . could not work independently. (Tr. 120). Though Ms. claimed there was instruction throughout the day, she could not indicate a specific amount of time that it was provided. Notably, Counsel asserts that the DOE did not defend its placement at and there is no evidence as to what was offered at that placement. Unit Coordinator testified that parent trainings were conducted monthly at . (Tr. 149) with time allotted for individual instruction. (Tr. 121). Dr. testified that she learned that students receive just 10 to 20 minutes per day of individualized instruction, for the core subjects. (Tr. 510). Ms. confirmed that the teacher allots 15 to 20 minutes of instruction per day for each student. (Tr. 150-151). During that time the other five students work on other activities. (Tr. 150-151). It is alleged that this would be woefully insufficient for Ms. testified that some staff is trained in ABA. (Tr. 122, 1133). Counsel asserts that “vocational” program also was insufficient, and would not offer . the skills he needs to become an independent and functional member of society. The school does not have a specific time allotted for vocational training. Ms. testified that vocational training is “infused throughout the day” and targeted during ELA, math, and related service periods. (Tr. 145, 157-158). All vocational training is “on site” and students are not permitted to leave campus to work in the community. (Tr. 148). Further, vocational training is sometimes in a group, which is not sufficient for T.G. (Tr. 148). In addition, though Ms. claimed the school offers travel training in the community, she also testified that none of the students has travel training, and that the travel trainer is not on site at (Tr. 146-148). also could not offer adequate behavioral supports for testified that employs a schoolwide behavior system. (Tr. 138-139). Dr. reported that she did not observe any evidence of implementation of same when she visited the program. (Ex. E-3). She also did not observe any students with token economies or timing devices. (Id). Further, Ms. testified that the behavioral therapist was not always on site and last had been at the school months before her testimony. (Tr. 143). In one of the classrooms, observed that one student had his head on his desk was not attending, and another student .” (Tr. 571). She did not believe that would have been appropriate for as it lacked the instructional intensity that her son needs. (Tr. 572). Parent’s counsel maintained that the evidence indicated that . wrote to the DOE, detailing her concerns with . (Ex. R). She wrote that she was available to visit any other placements. (Ex. R-2). When D.G. received another FNR from the DOE, for JFK Jr. HS, she visited the site with Dr. Fiorile. (Tr. (Tr. 576-577). They met with a site coordinator and a social worker, and learned also employed the TEACCH methodology. (Tr. 522). The site coordinator indicated that TEACCH and ABA were very similar, which is inaccurate, according to Dr. (Tr. 523). In addition, Dr. noted that cannot sustain attention and learn in a group setting, as he would be required to do at Tr. 524). Further, . would have difficulty navigating the large school building. (Tr. 523). D.G. agreed and didn’t believe that would progress using the curriculum which focused on groups and independent activities. (Tr. 578).

Parent maintained that ’S special education program and services are appropriate for him. More particularly, is An Appropriate Core School Placement for is a small special education program for students . (Tr. 170-171); the employs “ instruction utilizing behavior analysis across the day.” (Tr. 170). Ms. testified that the curriculum is “completely individualized to [each] specific student.” (Tr. 170). For the 2013-2014 school year, thirteen students, ages six . (Tr. 170, 282).

As , Ms. oversees clinical supervisors and educational teams. (Tr. 171). She testified that all instructors are required to have at least a Bachelor’s degree in a field related to instructing students with autism, and at least one year of Master’s degrees and are working towards BCBA certification (Tr. 172). Instructors rotate between three or four students every 45 minutes, to increase generalization. (Tr. 170, 176). Ms. Russell conducts monthly staff trainings, and team meetings occur weekly (Tr. 172-174).

Ms. testified that students are assigned to classrooms based on their age and abilities. (Tr. 175). For 2013-2014 . was placed in a class with five students, four instructors, and a clinical supervisor. (Tr. 177-178). Each of .’s instructors holds a Bachelor’s degree, and his lead instructor is working toward her BCBA certification. (Tr. 177). The clinical supervisor in .’s class holds Master’s degrees in general education and special education, finished his BCBA coursework, and is slated to take the exam for certification this year. (Tr. 178). developed programs (including discrete target objectives) for to work on during the school year. (Ex. AA; Tr. 183). Ms. Russell testified that data are collected on every skill daily; raw data are graphed and analyzed, and program changes are made, if necessary, based on the data trends. (Tr. 186, 193). Ms. noted that s mission is to foster independence among students. (Tr. 169). .’s daily programming includes instruction in daily living skills, vocational training, social skills, calendar skills, and typing. (See Ex. HH). Ms. explained that programming includes a “safety” program (obeying traffic signs), which is taught and then carried over into the community. (Tr. 183-184). She noted that this year . has done “really well,” and is able to demonstrate some independence. (Tr. 184). . also is learning to order lunch and use his debit card in the community; he is progressing and showing independence with that skill. (Tr. 190). works on labeling familiar people, and has mastered many different names. (Tr. 194-195). In addition, he has mastered answering some “WH-” questions and is progressing in requesting different objects and activities, and in typing skills. (Tr. 192, 196, 199). . also has made gains in reading functional words and following instructions. (Tr. 210-212).

with vocational opportunities; . has an internship twice per week at Key Food, where he packs groceries and collects shopping carts. (Tr. 201). . also works at The GAP twice per week, sorting and labeling clothes, and in the mailroom at (Tr. 202-204). includes other goals for which target potential job skills, including sweeping and washing dishes. (Tr. 204-205). Ms. testified . has demonstrated the “biggest improvement” in vocational skills, as he is able to work in different environments. (Tr. 223-224).

As per Ms. ’s progress has been slow but steady (Tr. 205); she noted that in order for . to learn, his skills must be broken down into individual steps. (Tr. 205) and cautioned that if instruction is not implemented correctly, it would be difficult to go back and erase or unlearn errors. (Tr. 207). uses errorless teaching to increase .’s skill acquisition and correct responses. (Tr. 223); follows a “maintenance schedule,” which ensures that does not regress with any of his learned skills. (Tr. 188, 213). Ms. explained that instructors are able to “fade” instruction, but still target learned skills to make sure . maintains them. (Tr. 188-189). She stated that he would lose information if it were not maintained. (Tr. 189). provides programming. (Ex. AA-12); the school developed a behavior plan for ., in collaboration with his home ABA team, and updated that plan during the year. (Tr. 310, 467-468; See Exs. I, II). Ms. testified that with his learning and are stigmatizing. (Tr. 215) and that part of ’s behavior plan is to block “precursor” behaviors to prevent (Tr. 218; Ex.II-3). T.G. also uses a self-management procedure which incorporates a “visual schedule,” in which he earns checks and thereafter has access to reinforcement. (Tr. 218-219; Ex. II-1).

Additionally, . has socialization opportunities with peers at with individualized supports. (Tr. 340). More particularly, each day, has social opportunities during morning meeting and lunch. (Tr. 340; Ex. HH). In addition, has goals targeting social skills such as turn-taking and set up occasions for him to socialize with peers in his class. (Tr. 340). Ms. opined that is appropriate for . because staff provide individualized teaching targeted to .’s specific needs, and with this programming he has progressed. (Tr. 224).

Dr. observed in March, 2013, and December, 2013 (Tr. 490, 495; Exs. F, EE) and noted that has an “extremely well-implemented ABA program”. (Tr. 493, 496). She testified that provides . with the appropriate educational opportunities in terms of managing and improving interfering behaviors. (Tr. 490); . is following a “behavior intervention plan with a fairly dense schedule of reinforcement that is always being monitored and reviewed.” (Tr. 490). Dr. testified that . continues to present with significant deficits across all areas and requires support by trained staff within an ABA program. (Tr. 507). She recommended that . continue to attend because the program offers . the high rate of individualized instruction utilizing ABA. (Tr. 495). Furthermore, Dr. observed differences and improvements in over the year. (Tr. 501); he now is more independent and his communication skills have improved. (Tr. 501) and . continues to make “consistent and meaningful progress” . (Ex. F-11). D.G. agreed that her son is progressing . (Tr. 578-579). She noted that who is generally inflexible and resistant to change, has done better with transitioning this year (Tr. 579).

In addition to his program at . receives 16 hours per week of ABA therapy at home. (Tr. 413, 453). Ms. supervises ’s ABA team, analyzes data, changes programs when necessary, and develops goals. (Tr. 412). She testified that . presents with “significant challenges across learning domains.” (Tr. 412); he demonstrates challenging behaviors, which given .’s size and age, are serious and can be unsafe. (Tr. 412). .’s home ABA team focuses on functional academics, hygiene, job readiness, leisure skills, and communication skills. (Ex. M-1; Tr. 416). also works on generalization of skills which are taught in school and maintained at home. (Ex. M-1; Tr. 216). Ms. explained that does not learn “incidentally;” rather, he needs to be taught systematically. (Tr. 422, 439). .’s team works on which includes programming on inappropriate touching and how to report such an event. (Tr. 416). Ms. testified that . is making progress toward this goal, though it takes a long time. (Tr. 417); he also is learning vocational skills, travel training including riding the bus and using a Metro card, and hygiene skills. (Tr. 417-419). In addition to his vocational activities at BAC, T.G. works at a pizzeria afterschool, supported by an ABA therapist. (Tr. 424; Ex. F-5). T.G.’s ABA team also works on physical fitness, which reduces and aggression. (Tr. 418, 420); he was able to run in a 5K marathon this year. (Tr. 418). Ms. testified that the team takes data on every goal that is targeted, and that the data are graphed and analyzed (Tr. 431).

’s home team assisted in developing the behavior plan that economy in place, through which . (Tr. 435) Ms. described home, outside the time of his therapy sessions. (Tr. 445, 462) and that without more frequent. (Tr. 445) Ms. also provides parent training to . (Tr. 470); she noted the importance of parent training, as children with autism typically engage in more challenging behaviors with parents than during structured sessions, and parents must be trained to address these behaviors. Ms. because needs to independently be able to function in his home and community and he still has significant , which interfere with his ability to do so. (Tr. 444).

Dr. observed .’s home program. (Exs. F, EE); she testified that a leisure skill program at home was important for . because without proper leisure skills, could display high rates of Tr. 497). Dr. Fiorile testified that the combination of school and home programs allow . to develop skills necessary for adult life. (Tr. 499). She recommended that he continue to receive 16 hours per week of ABA services at home because . continues to require that level of support and monitoring, and without it he would “regress to previous levels.” (Tr. 508).

. testified that during breaks and days off from school, the lack of structure “affects [ .] adversely”. He does not know how to stay occupied, and she tries to have the home program going 365 days per year. (Tr. 586). She testified that without the constant programming would regress, and forget skills. (Tr. 587).

. receives at home (Tr. 356; Ex. O); Ms. is a pathologist, and has worked with since 2008. (Tr. 350, 355). She provides services twice per week when school is in session, and up to five times per week during school breaks. (Tr. 356). She stated that . presents with (a marked by a difficulty coordinating muscle movements), and severe receptive, expressive, and articulation delays. (Tr. 352, 356). To address expressive language Ms. works on “WH-” questions, labeling and sequencing actions, and expanding utterances. (Tr. 356, 359). She noted some progress in expanding utterances, labeling actions, and answering “where” questions. (Tr. 360). In receptive language Ms. works on identifying familiar items, and following directions. (Tr. 361; Ex. O). T.G. is making gains and can receptively identify an answer in a large field, as well as follow one- and two-step unrelated directions. (Tr. 361; Ex. O). Ms. works on articulation using tactile prompting to produce letter sounds. (Tr. 364). She indicated that “benefits greatly from the “PROMPT” technique.” (Tr. 352). Ms. has observed progress and testified that is able to produce sounds. (Tr. 365).

Ms. also works with . utilizing “AutisMate” on his iPad, and has developed goals for him. (Tr. 362-363; Ex. EE-12). “AutisMate” has verbal output to assist with . (Tr. 362). . cannot speak clearly and it is important for him to be able to refer to his iPad to speak to avoid communication breakdowns. (Tr. 363). Ms. noted that .’s accuracy using his iPad has improved. (Tr. 364). Ms. has been trained by Ms. to follow behavior plan. (Tr. 365, 381, 464). She communicates with .’s home ABA Team, and . regularly. (Tr. 366-367, 387). Ms. takes data for each session she works with and tracks his improvements. (Tr. 372).

As noted, Ms. treats . 2 x 60 minutes per week when school is in session, and up to 5 x 60 minutes per week during school breaks. (Tr. 370). Due to scheduling conflicts Ms. was able to provide two speech sessions per week; however and have been trying to with experience working with students and PROMPT training. (Tr. 370). Ms. recommended 5 x 60 minutes per week of to address and . (Tr. 373; Ex. O-2). She has observed improvement and testified that . requires that level of speech to continue to improve. (Tr. 373). She also noted that if did not receive on a twelvemonth basis he would regress.

Ms. stated that equitable considerations support and his Parents and that cooperated at all times with the DOE, and in no way hindered the IEP development process. participated in two IEP meetings to develop ’s 2013-2014 program, and made requests for .’s programming (though those requests ultimately were ignored). (Tr. 564, 569, 574). She consented to the DOE’s request to evaluate ., and met with the DOE to review the results of the attempted evaluation. (Tr. 573-574).

When received the DOE’s FNR recommending that her son attend she promptly scheduled an appointment, and visited the school with Dr. . (Tr. 570; Ex. S). Having found inappropriate for . wrote to the DOE, detailing her concerns. (Tr. 573; Ex. R). In her letter, she notified the DOE that she would seek reimbursement for program unless an appropriate placement was offered. (Ex. R). The DOE sent another FNR recommending , and . tried to make arrangements to visit. (Tr. 576; Ex. U). She was advised that the FNR was sent in error and that the DOE would issue another FNR. (Tr. 569). The DOE subsequently recommended that . (Tr. 576; Ex. X). visited this program with Dr ; they found that the placement, aside from being offered after the school year had begun that it would be inappropriate (Tr. 577-578). . testified that she “is open” to considering any placement offered, to determine if it may be suitable for . (Tr. 598).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400~1482) ensure-that students with disabilities have available to them a FAPE-see Schaffer v. Weast, 126 S. Ct. 528,531 [2005]; Bd. Of Education v. Rowley 458 S.CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356371 92d 2006). FAPE includes special education and related services designed to meet the student's unique need provided inconformity with a comprehensive written IEP (20U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 'd'. The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a] [5] a; CFR section 300.13 [a] [2] [i], .200. 1.116 [a] [2]; 8 NYCRR 200.6 [a] [IJ; see Walczak v. Fla. Union Free School Dist. 142 F. 3d 119, 132[2d cir. 1998]

In conformity with a written IEP, a school district must provide special education and related services designed to meet the student’s unique needs. 20 U.S.C. §1401(9) (D); See 20 U.S.C. § 1414(d)). “‘The core of the statute’ is the collaborative process between parents and schools, primarily through the IEP process.” Application of a Child with a Disability, Appeal No. 06-121; See Schaffer, 126 S.Ct. at 532. A school district provides a FAPE to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-7 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 (2d Cir. 2003). If a procedural violation has occurred, relief is warranted only if the violation affected the student’s right to a FAPE. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

The IDEA directs that a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE. 20 U.S.C. § 1415(f) (3) (E) (i)). Under the IDEA, if a procedural violation is 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 8 NYCRR 200.5(j)(4)). Also, an impartial hearing officer is not precluded from ordering a local educational agency to comply with IDEA procedural requirements (20 U.S.C. § 1415(f) (3) (E) (iii)).

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child's parents if: 1. the services offered by the Department of Education were inadequate or appropriate; 2. the services selected by the parents were appropriate and 3. Equitable considerations support the parents claim (Sch. Comm. of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. School Dist. 427 F. 3d 186, 192 [2d Cir. 2005] _ "reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.

Parent maintains that the DOE failed, procedurally and substantively, to offer . a FAPE for the 2013-2014 school year and that he evidence has established that special education program at the in conjunction with home-based Applied Behavioral Analysis (“ABA”) therapy, ABA supervision and consultation, and five hours per week of speech therapy is appropriate for him, and that equitable considerations support . and his parents.

Counsel for the Parent asserts that the DOE failed to comply with the procedural and substantive requirements of the IDEIA and the N.Y. State Education Law in developing ’s 2013-2014 IEP and placement and failed to defend the September 2013 IEP for T.G. More particularly, it is well settled that an amended IEP supersedes a previous IEP. See App. of the Bd. of Educ., Appeal No. 05-063; App. of a Child with a Disability, Appeal No. 05-021. The IDEIA requires a CSE to review and if necessary revise a child's IEP at least annually, and each new IEP supersedes the prior version. See 20 U.S.C. § 1414(d)(4)(A)(i); 34 C.F.R. § 300. 343(c)(1), App. of a Child with a Disability, Appeal No. 06-027 (reasoning that where three IEPs were developed for one school year, the most recent IEP superseded all previous IEPs); see also Appeal No. 05063.

In the case at bar, Ms. stated and I agree that the DOE developed IEPs for in both April and September 2013, for the 2013-2014 school year. (See Exs. 3, W). The DOE indicated that it would not defend the September 2013 IEP, though it was the most recent IEP developed. (Tr. 18, 99-100, 102, 574). As such, ’s parents’ challenges to the September 2013 IEP, as set forth in their Amended Due Process Complaint, remain unanswered. (Ex. Z-8-11). Given that the DOE did not attempt to defend its latest IEP recommendations for 2013-2014, I find that the DOE is unable to carry its burden of demonstrating an offer of FAPE.

Counsel also maintained that both IEPs were inappropriate for . and that both of the DOE’s proposed IEPs were procedurally and substantively deficient and insufficient to offer . a FAPE. More particularly, during IEP development, the CSE is responsible for considering a student’s “(1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs.” Gagliardo, 489 F.3d at 107-108. The IEP must provide for the student “special education and related services tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.” Id. at 107. The DOE was charged with developing a procedurally and substantively sound IEP for which it failed to do.

Under the IDEIA, a procedural violation results in a denial of a FAPE when such violation (a) impedes the student’s right to receive a FAPE, (b) significantly impedes the student’s parents’ right to participate in decision-making concerning the development of an IEP and placement, or (c) causes a deprivation of the student’s educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2). “Both Congress and the Supreme Court place great importance on the procedural provisions incorporated into [the IDEIA].” Evans v. Bd. of Educ. of Rhineback Cent. Sch. Dist., 930 F. Supp. 83, 94 (S.D.N.Y. 1996)(referencing Rowley, 458 U.S. at 205). Then, a “school district fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement.” Cerra v. Pawlings Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005). If the student’s unilateral programming is appropriate, “[s]ubstantive inadequacy automatically entitles the parents to reimbursement.” R.E. v. N.Y. City Dep’t of Educ., 694 F.3d 167, 190 (2d Cir 2012).

Parent’s counsel maintained that for the 2013-2014 school year, the DOE committed numerous errors that impeded T.G.’s right to receive a FAPE.

1. The DOE predetermined programming and failed to consider D.G.’s Requests . A CSE’s predetermination of a child's IEP can amount to a procedural violation of the IDEIA if it deprives the parent of meaningful participation in the IEP process. J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 648 (S.D.N.Y. 2011). “The core of the [IDEIA] is that the development of the IEP be a cooperative process between the parents and the district, and predetermination by a district of a child's IEP undermines the IDEIA's fundamental goal to give parents a voice in the educational upbringing of their children.” D.D.-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *10 (E.D.N.Y. Sept. 2, 2011); see also Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524 (2007) (“parental participation in the development of an IEP is the cornerstone of the IDEA”).

In the matter before me, the Parent states and I agree that the DOE recommended what it had available for not what was appropriate for him. See 34 C.F.R. §300.115; 8 N.Y.C.R.R. § 200.6. The DOE’s CSE members recommended that . attend a special class, the DOE’s stock program for students (like .). I agree that Ms. the CSE’s special education teacher, lacked sufficient familiarly with programs and failed to justify the DOE’s recommendations. She was not certified to teach high school classes and last taught in a special education class twelve years ago, and has never taught a class for students with autism. Additionally, her testimony that the DOE did not recommend extended day or after school services for because, in her opinion, “ would need to rest when he arrived home from school” is unsupported; on the contrary, the evidence established that requires home-based programming in addition to school. In particular, a lack of structure affects adversely; he . The evidence is clear that . needs constant programming to prevent regression. (Tr. 499, 587). At the April IEP meeting, Ms. explained with great detail why a class would be inappropriate . (Tr. 231) as . requires intensive programming and home based services. I agree that the information at the CSE’s disposal indicated that . continued to require programming. (Exs. 8-1, 9-11, 102,). Even the DOE’s own evaluation recommended that . “would benefit from a highly structured specialized instruction using appropriate behavioral based intervention (like [ABA]).” (Ex. 6-3).

I agree with the Parent and note that Ms. disagreed with the DOE’s program recommendation and asked the DOE to consider ABA programming in school and on an extended day basis for (Tr. 64, 231, 569, 603-604). The DOE presented no evidence to support its recommendation, which runs contrary to the recommendations of the professionals who know and have worked with . for years. Additionally, as per the evidence, the DOE attempted to evaluate T.G. (Tr. 573-574). Ms. testified that . was “not able to really complete a lot of the testing” due to behavioral issues, and noted that the evaluation was “pretty inconclusive.” (Tr. 15, 22). Ms Russell confirmed that the DOE evaluators had terminated the evaluation after about five minutes because they feared that was going to have an aggressive episode. (Tr. 235). Furthermore, when the CSE reconvened in September, the CSE read the newly completed Psycho-Educational evaluation report (from the attempted assessment); despite this further proof of the severity of , the DOE maintained its recommendation for a program. (Ex. W-14). The CSE briefly reviewed the April IEP and did not indicate that anything would be updated or changed. (Tr. 23, 27, 442, 575). and the professionals who worked with . again expressed disagreement with the program recommendations (Tr. 235, 327, 602-603).

I agree with Ms. that although the DOE did not discuss changing the April IEP that the September IEP includes unilateral changes to the goals and objectives. (Compare Ex. 3 with Ex. W; see Tr. 273-279). In developing an IEP, a CSE is required to “review existing evaluation data on the child, including (i) evaluations and information provided by the parents of the child; (ii) current classroom-based, local, or state assessments, and classroom based observations; and (iii) observations by teachers and related services providers” 20 U.S.C. § 1414(c)(1)(A). I agree that the goals were not discussed collaboratively and failed to incorporate ’s concerns and considerations. Ms. and Ms. ’s testimony establish that the DOE’s recommended program selected for . lacked the components that he needed to progress, including instruction and ABA intervention. I agree with the Parent’s position that the DOE denied D.G. meaningful participation by not seriously considering her requests, and for changing T.G.’s proposed IEP unilaterally. See Winkelman, 550 U.S. at 524. Additionally, I find that the DOE failed to develop appropriate goals for the child and objectively measureable goals for . with all team members’ input. The DOE simply copied several goals and objectives from . (Tr. 57; Ex. 8), which were designed to be implemented in a ABA program, and could not be carried over appropriately to a special class program. (Tr. 262). Goals were not drafted at the April meeting. . was informed that the CSE would “develop goals and write up the IEP at a future date,” but she was not included in this process. (Tr. 565; see also Tr. 568).

Ms. reviewed the April IEP and I agree with her that some of the goals were “too open” or “vague” and did not target what needs. (Tr. 260). Ms. also testified the measurement criteria of “one time per month” were too infrequent to track performance effectively. (Tr. 259, 261). Many of the proposed Goals were not attainable for . For instance, a Goal targeting reading skills and answering questions about a book was not appropriate: . is unable to read and therefore could not meet that Goal. (Ex. 3-10; Tr. 262-263). Ms. added that the math goal was also unattainable. (Ex. 3-11; Tr. 266). cannot track spending on a ledger, use a calculator, or add and subtract, as the Goal required. (Tr. 266-267). The proposed vocational Goal also is inappropriate, because the skills were not broken down into small teachable steps, requires. (Ex. 3-11-12; Tr. 268). Ms. opined that would be unable to learn if the whole task were presented at once, as in the proposed Goal. (Tr. 268). Similarly, the self-care Goal also failed to break down the steps discretely. (Ex. 3-11; Tr. 270).

As noted, the DOE recommended that . attend special class for the 2013-2014 school year. (Ex. 3-13-14, W-14). However, at the time of the April meeting, continued to present severe communication delays. (Exs. 9, 10; Tr. 15, 179, 218, 358); would and would display a variety due to lack of individual instruction in class. (Tr. 228). Dr. Fiorile testimony was credible in that she observed programs at the two schools the DOE recommended for . for 2013-2014. (Tr. 509, 519) and that the TEACCH methodology, which is employed in the 6:1:1 programs, would not be appropriate for . (Tr. 515) as TEACCH involves instructing all students in a group, with small group or independent work to follow. (Tr. 516). “ ability to work independently is “very limited,” and he requires individualized programming. (Tr. 516-517). Dr stated that if were placed in a program without ABA instruction, he would experience “tremendous regression." (Tr. 517).

The Second Circuit recently held that the DOE denied a student FAPE where it recommended a 6:1:1 special class for a student with Autism and failed consider a ABA program for him. C.F. v. N.Y. City Dep’t of Educ., No 11-5003-cv, 2014 WL 814884, at *8 (2d Cir. Mar. 4, 2014). In C.F., the Court reasoned that all of the witnesses familiar with the student testified that he required a 1:1 placement. Id. The Court also noted that though DOE witnesses claimed ABA would be utilized in the recommended classroom, that testimony was “improper retrospective testimony.” Id. Finally, the Court concluded that the issue of program ratio “cannot be separated” from the DOE’s failure to recommend parent training and to conduct a Functional Behavior Assessment (“FBA”) and develop a proper Behavioral Intervention Plan (“BIP”) for the student, as a 1:1 classroom was necessary due to the Id.

In this case, the evaluative information before the DOE at .’s IEP meeting indicated that demonstrated significant needs and required additional supports beyond what the DOE was recommending. (Exs. 8, 9, 10). At the time of the IEP meeting, academic skills were well below grade level, and he showed significant deficits in behavior management, receptive and , self-help, communication, prevocational, and skills. (Exs. 9-1, 10-1). T.G. required an ABA program including repetition, reinforcement, structure, supervision, and systematic programming, generalization, and maintenance of acquired skills. (Ex. 9-11).

I find that testimony from the individuals who have worked with . is credible and supports the finding that a special class program would be insufficient to address T.G.’s needs, especially his behavioral needs. Just as in C.F., supra, all witnesses familiar with . agreed that he requires a ABA program to progress. For example, Ms. opined that a special class would not be appropriate for . because he would become “very distracted” and would display a variety of due to the lack of individual instruction. (Tr. 228). She added that learning a group environment would be “incredibly difficult” for . (Tr. 228). Ms. testified that she did not believe . could learn in a group, as he needs systematic ABA instruction, , to acquire new skills. (Tr. 446). Dr. Fiorile also noted that given the severity of .’s needs, it was critical for to continue receiving an ABA program. (Tr. 495497). She added that . cannot sustain the attention necessary to learn in a group setting. (Tr. 524). Dr. Fiorle testified that if were placed in a program without ABA instruction, he would experience “tremendous regression,” (Tr. 517).

The DOE did not provide either 1:1 or ABA instruction in .’s IEP, and failed to consider that programming for him. (See Exs. 3, W). Ms. ’s purported justification for recommending a program was so . could have an “opportunity to participate with other students.” (Tr. 69). She seemingly ignored the consensus . could not learn in a group. Ms. offered no further justification for the DOE’s class recommendation. (Tr. 24). Notably, Ms. did not have any experience with ABA. (Tr. 57). Ms. testified that she had observed ABA instruction, but never implemented it herself. (Tr. 12).

I agree with the Parent that in .’s case, ABA is not merely a preferred teaching methodology; it is necessary for him to acquire skills. The uncontroverted evidence reveals that . requires ABA instruction to learn. Dr. reported that “[t]he only treatment methodology that will continue to be effective for [ .] is implementation of Applied Behavior Analytic strategies.” (Ex. F-10). Likewise, also indicated that “requires a structured teaching setting utilizing the principle of [ABA] for him to continue acquisition of skills.” (Ex. 8-2). ’s home ABA Team further indicated that it is “crucial” for . to have experienced ABA teachers working with him. (Ex. 9-11).

Additionally, I find that the DOE also failed to develop an appropriate BIP for (and failed to provide his parents with any BIP until .’s impartial due process hearing), and failed to recommend parent counseling and training for (See infra.) C.F., 2014 WL 814884, at *10. The DOE’s inappropriate offer of a special class program should be considered in conjunction with its other failures to address .’s needs. Id. A school district “must consider the use of positive behavioral interventions” to address the behavior of “a child whose behavior impedes [his or her] learning.” 20 U.S.C. § 1414(d)(3)(B)(i). This mandate is often carried out through the development of an FBA, which provides detailed information about a student’s problem behaviors, and a BIP, which provides strategies to reduce those behaviors. See 8 N.Y.C.R.R. § 200.22(a)-(b). If behavior is a concern, the IEP must include specific Goals and Objectives for a behavior plan. 8 N.Y.C.R.R. §§ 200.4(d)(3); 200.4(f)(1)(i). A CSE should consider developing a BIP “when the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions.” 8 N.Y.C.R.R. § 200.22(b)(1). Failure to conduct an FBA or BIP may constitute a denial of FAPE. R.E., 694 F.3d at 194.

Dr. Fiorile testified the purpose of an FBA is to identify clearly and determine the function(s) of the behaviors; an FBA is used to draft a behavior plan to remediate the behaviors. (Tr. 484-485). Ms. highlighted the importance of direct observation in conducting an FBA, which the DOE did not do. (Tr. 249-250). Behaviors serve different functions in different environments, and an improperly conducted FBA could lead to an ineffective BIP. (Tr. 250).

In this case, the DOE’s FBA is wholly insufficient and does not include any of the necessary information to develop a proper BIP. Ms. “vaguely” knew what an FBA is. (Tr. 48). The DOE’s FBA lacks observational data, targeted behaviors, behavioral triggers, environmental conditions which affect behaviors, and presumed purposes of behaviors. (Exh.3-22). Instead the FBA merely indicates “see attached BIP.” (Ex. 3-22). Dr. testified that “[t]here’s no FBA here,” and noted that it was improper to refer to a BIP in an FBA because the FBA should be developed first. (Tr. 528; see also Tr. 484485).

It is uncontroverted that the DOE did not develop its own BIP for T.G. (Ex. 323). Instead the DOE attached s behavior plan to its proposed IEP. (Tr. 251; Ex. 3-24-26). Ms. explained that has a “DRO system” in place for T.G. (Tr. 252). Dr. Fiorile found it “highly unlikely” that the DOE would be able to implement the plan because based on her observations, the staff does not have that level of expertise and training to implement a DRO plan. (Tr. 527). The plan takes a high level of and monitoring which cannot be accomplished outside of a 1:1 environment. (Tr. 527). Ms. testified that staff implemented a new behavior plan for which facilitates independence and selfmonitoring, in September, 2013. (Tr. 255-256). Additionally, the DOE failed to recommend appropriate assistive technology for T.G. The DOE failed to document accurately ’s need for an AT device. In developing an IEP, a school district shall “consider whether the student requires [AT] devices and services, including whether the use of school-purchased [AT] devices is required to be used in the student’s home or in other settings in order for the student to receive a [FAPE].” 8 N.Y.C.R.R. § 200.4(d)(3)(v); see also 34 C.F.R. § 300.6.

The proposed IEPs include a recommendation for a Dynavox. (Exs. 3-14, W-15). Ms. did not recall if there was any discussion regarding an AT evaluation, and she did not know from where the recommendation for Dynavox came from (Tr. 81, 84). Ms. each testified that there was no discussion at the IEP meetings about a Dynavox, nor was there any mention of an AT evaluations. (Tr. 233-234, 395, 582). Additionally, uses an iPad as an AT device (which was noted on reports submitted to CSE). (Tr. 81, 362; Ex. 91, 10-1). D.G. confirmed that had been using an iPad for at least two years. (Tr. 590). Ms. testified that the Dynavox is very bulky and would be stigmatizing were to carry it around with same-aged peers. (Tr. 396). Ms. testified that the iPad has been beneficial and he has demonstrated ability to communicate his wants and needs using “AutisMate.” (Tr. 180, 339). She noted that without his iPad, staff cannot understand ., and that he demonstrates maladaptive behaviors as a result of such inability to communicate effectively. (Tr. 181). Moreover, the iPad is multifunctional for and he uses it for leisure activities, answering social questions, and identifying personal information. (Tr. 363, 395, 547). Here the DOE failed to recommended the AT device which . actually uses, and instead chose a device which would have been useless.

Furthermore, the DOE failed to recommend parent counseling and training .The Second Circuit has noted that "even minor [procedural] violations may cumulatively result in a denial of a FAPE." R.E., 694 F.3d at 191; C.F., 2014 WL 814884, at *9.

While each regulatory violation may not in isolation deprive a student of a FAPE, all of the alleged deficiencies must be assessed collectively to determine whether the IEP “as a whole” was sufficient for the student. T.Y. v. N.Y. City Dep’t of Educ., 584 F.3d 412, 419 (2d Cir. 2009).

Here, the DOE failed to recommend any individualized parent training and counseling for . (Exs. 3-17; W-15). School districts in New York are required to provide families of children with Autism “parent counseling and training... for the purpose of enabling parents to perform appropriate follow-up intervention activities at home.” 8 N.Y.C.R.R. § 200.13(d). The parent counseling and training services to which all such families are entitled must be detailed in the student's IEP. Id. Failure to include parent counseling and training in an IEP may constitute a denial of FAPE, particularly when aggregated with other violations of a student’s right to receive a FAPE. See R.E., 694 F.3d at 191. R.E., 694 F.3d at 193; C.F., 2014 WL 814884, at *8. I agree and find that the omission of parent training in this case is a critical violation. D.G. testified that . can become aggressive and dangerous to the point where she and her husband have to retreat to a safe room, and thus they need instruction on how to manage . (Tr. 563). She testified that parent training is important, and without it . would not continue to progress. (Tr. 585). In this case, the DOE’s failure to recommend parent training, aggregated with its other violations, resulted in a denial of FAPE to T.G. See R.E., 694 F.3d at 191; C.F., 2014 WL 814884, at *9.

As previously noted, for 2013-2014, the DOE recommended that . attend a class at , and subsequently recommended that . The DOE refused to defend the placement at though it was the most recent placement offered . (Tr. 102, 519). I find that the DOE failed to present evidence sufficient to sustain its burden of demonstrating an offer of FAPE. Ms. Lynch, who met with D.G. and Dr. when they toured testified in support of the program. (Tr. 110, 510; see also Ex. E). Ms. testified that follows the TEACCH model, under which students work in groups and independently. (Tr. 119, 516). Dr. Fiorile noted that TEACCH-based instruction would not be appropriate for (Tr. 515). His ability to work independently is “very limited,” and he continues to require more targeted individualized program. (Tr. 516-517). Ms. recalled that . stated that . could not work independently. (Tr. 120). Though Ms. claimed there was instruction throughout the day, she could not indicate a specific amount of time.

I agree that the DOE did not defend its placement at and there is no evidence as to what was offered at that placement. In determining the adequacy of the program offered, the focus is on information provided to parents at the time a placement decision was made. C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376, at *13 (S.D.N.Y Dec. 23, 2013); R.E., 694 F.3d at 187. Ms. testified that some staff are trained in ABA. (Tr. 122, 1133). However, her testimony is retrospective and cannot be relied upon by the DOE. See C.F., 2014 WL 814884, at *10.

I have determined that “vocational” program also was insufficient, and would not offer the skills he needs to become an independent and functional member of society. The school does not have a specific time allotted for vocational training. Ms. testified that vocational training is “infused throughout the day” and targeted during ELA, math, and related service periods. (Tr. 145, 157-158). All vocational training is “on site” and students are not permitted to leave campus to work in the community. (Tr. 148). In addition, though Ms. claimed the school offers travel training in the community, she also testified that none of the students has travel training, and that the travel trainer is not on site at (Tr. 146-148).

also could not offer adequate behavioral supports for . Ms testified that employs a school-wide behavior system. (Tr. 138-139). Dr. Fiorile reported that she did not observe any evidence of implementation of BIPs when she visited the program. (Ex. E-3) D.G. wrote to the DOE, detailing her concerns with . (Ex. R). As noted, the DOE did not defend the propriety of , thus T.G.’s parents’ challenges remain uncontested. Regarding Prong II I find that is an appropriate placement for is a small special education program for students diagnosed , the program employs “1:1 instruction utilizing behavior analysis across the day.” The curriculum is “completely individualized to [each] specific student.” (Tr. 170). For the 2013-2014 school year, thirteen students, ages six to sixteen attend . began attending five years ago. Ms. testified that students are assigned to classrooms based on their age and abilities. (Tr. 175). For 2013-2014, . was placed in a class with five students, four instructors, and a clinical supervisor and has clearly made progress. developed programs (including discrete target objectives) for to work on during the school year. (Ex. AA; Tr. 183). Ms. testified that data are collected on every skill daily; raw data are graphed and analyzed, and program changes are made, if necessary, based on the data trends T.G.’s daily programming includes instruction in daily living skills, vocational training, social skills, self-care skills, receptive and expressive language, reading, calendar skills, and typing. (See Ex. HH). ’s programming includes a “safety” program (obeying traffic signs), which is taught and then carried over into the community. (Tr. 183-184). She noted that this year . has done “really well,” and is able to demonstrate some independence. (Tr. 184).

Additionally, I find that the home-based ABA Services are appropriate . In addition to his program at receives 16 hours per week of ABA therapy at home. Ms. supervises .’s ABA team, analyzes data, changes programs when necessary, and develops goals. . presents with “significant challenges across learning domains.” (Tr. 412). .’s home ABA team focuses on functional academics, hygiene, job readiness, leisure skills, and communication skills.

Under the second criteria of legal standard, the child's parent bears the burden of proof with regard to the appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Disability, Appeal No. 9429; Application of the Bd. of Education of the Monroe-Woodbury CSE, Appeal NO. 9394; Application of a Child with a Disability, Appeal NO. 95-57, in order to meet the burden the parent must show that the services were" proper under the act" (IDEA) (Burlington 471 U.S. at 370) i.e. that the private school offered an educational program which met the child's special educational needs (Application of a Child with a Disability, Appeal No. 94-29). The test for the parent’s private placement is that it is appropriate not that it is "perfect" (M.S. v. Bd of Educ.231F'-3d96, 105 [2crCir 2000r,cert. Denied532 U.S. 942 [20012]). The private school need not employ certified special education teachers, nor have its own IEP for student (Application of a Child with a Disability Appeal No. 02-111). While parents are not held as strictly to the standard of placement in the LRE as school districts are, restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. School Comm. 315 F. 3d 21, 26-17 [1st Cr. 2002}.

In review of the appropriateness of the proposed placement, the inquiry is whether, at the time the parent was considering the proposed placement, the DOE could implement the IEP. B.R. v. New York City Dep’t of Educ., No. 11 Civ. 8433(JSR), 2012 WL 6691046, at *6 (S.D.N.Y. Dec. 26, 2012); See also R.E. v. New York City Dep’t of Education, 694 F.3d 167 (2d Cir. 2012).

To demonstrate that the private school placement chosen by the parent is appropriate, the parent must show that the services met the student’s educational needs. Burlington, 471 U.S. 359 (1985). Review of the nonpublic placement is more informal than review of the original IEP – indeed; the nonpublic placement need not even meet the IDEA’s definition of a FAPE. R.E., 694 F.3d at FN3. The ultimate issue to be determined is whether the placement is reasonably calculated to enable the child to receive educational benefits; there is no one dispositive factor in this determination. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). The private program need not employ certified special education teachers, as the requirements for district placements to meet State educational agency standards do not apply to parental placements (Carter, 510 U.S. at 14; See also 34 C.F.R. § 300.148(c); I find that the Parent has met its burden of proof.

PRONG III

The final criterion for an award of tuition reimbursement is that the petitioners' claim is supported by equitable considerations (Carmel Cent. Sch. Dist. V.V.P. 373 F. Supp. 2d 402, 416 {S.D.N.Y. 2005] aff'd 2006 WL 2334140 (2d Cir 2006); Frank G. 459

F. 3d at 363-64). Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C. v. Voluntown Bd. Of Educ. 226 F. 3d 60, 68 [2d Cir.2000]; see Carter, 510 U.S. at 16 noting that courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required}) such considerations Include the parties, compliance or non compliance with state and federal regulations pending review the reasonableness of the parties' positions, and like matters (Wolfe v. Taconic Hills Cent. School. Dist, 167 F. Supp 2d 530, 5323 [N.D.N.Y. 2001] citing Town of Burlington v. Dept. of Educ. 736 F. 2ds at 773, 801-02 [1st Cir. 1984], affd, 471 U.S. 359 [1985]; with respect to equitable considerations, tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district or upon finding of unreasonableness with respect to the action taken by the parents 20 U.S.C. § 1412; Application of the Bd. of Educ. Appeal No. 04-102; Application of the Bd. of Educ. Appeal No. 04-026). However, reimbursement may not be denied or reduced for failure to provide such notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a)(10)(C)(iv )(I)(cc) (II)(bb).

cooperated with the DOE, and in no way hindered the IEP development process. participated in two IEP meetings to develop ’s 2013-2014 program, and made requests for .’s programming (Tr. 564, 569, 574). She consented to the DOE’s request to evaluate and met with the DOE to review the results of the attempted evaluation. (Tr. 573-574).

When . received the DOE’s FNR recommending that . attend she promptly scheduled an appointment, and visited the school with Dr. . (Tr. 570; Ex. S). Having found the inappropriate for . wrote to the DOE, detailing her concerns. (Tr. 573; Ex. R). In her letter, she notified the DOE that she would seek reimbursement for T.G.’s program unless an appropriate placement was offered. (Ex. R). The DOE sent another FNR recommending P169M, a school in Manhattan, and D.G. tried to make arrangements to visit. (Tr. 576; Ex. U). However, she was advised that the FNR was sent in error and that the DOE would issue another FNR. (Tr. 569). The DOE subsequently recommended that T.G. attend JFK Jr. HS. (Tr. 576; Ex. X). D.G. visited this program with Dr. and found that the placement, aside from being offered as the school year was well under way, would be inappropriate for (Tr. 577-578). testified that she “is open” to considering any placement offered, to determine if it may be suitable for . (Tr. 598).

Parent is awarded the following as stated more particularly in the order attached hereto: reimbursement for tuition and expenses for , home-based ABA therapy, supervision, for 2013-2014 Dated: May 5, 2014

Gary D. Peters, Esq. gc

GARY D. PETERS, ESQ.

Impartial Hearing Officer GDP:gc

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Request for Due Process and Pendency, 7/1/13, 7 pages B The State Review Office Decision, By: State Review Officer , Esq., 9/9/11, 29 pages C Order on Pendency by: Impartial Hearing Officer Susan C. Lushing, Esq,

8/22/12, 5 pages D NYC Department of Education IEP, 4/18/13, 15 pages E School Visit Report by , Ph.D., BCBA-D, SAS, 7/11/13,

5 pages F School and Home Observation Report and Recommendations by:

, Ph.D, BCBA-D, SAS, 4/13/13, 13 pages G Student Clinic Form, Current Programs by:

Jonas Bain-Lucey, 7/26/13, 15 pages H Proposed Goals and Objectives By:

M.S., BCBA, 3/15/13, 4 pages I Behavior Treatment Plan, by , M.S., BCBA, 2013-14, 5 pages J Enrollment Contract , 2013-2014, 3 pages K Tuition Affidavit and Proofs of Tuition Payment

8/7/13, 2 pages L Letter of Attendance , 9/17/13, 1 page M Home Program Progress Report ant Goals by

M.S., BCBA, 4/8/13, 4 pages N Occupational Therapy Progress Report and Goals

By: , OTR/L, 4/30/13, 4 pages O Progress Report by: Roslyn Salzman, M.S., CCC-SLP, 3/30/13, 3 pages P Home Program Progress Report by July , M.S. BCBA,

2/16/13, 11 pages Q Invoices and Proofs of Payment for Providers, July 2013, August 2013,

98 pages R Letter from Parent to NYCDOE with fax confirmation, 6/28/13, 4 pages S Letter from Parent to NYCDOE with fax confirmation, 6/21/13, 2 pages T Letter from Parent to NYCDOE with fax confirmation, 9/23/13, 2 pages U NYCDOE Final Notice of Recommendation, 9/20/13, 1 page V Student Clinic Form, Current Programs Brooklyn Autism Center by:

, 9/19/13, 15 pages W NYC Department of Education IEP, 9/10/13, 22 pages X NYCDOE Final Notice of Recommendation, 9/24/13, 1 page Y Amended Demand for Due Process and Pendency, 9/24/13, 12 pages Z Second Amended Demand for Due Process and Pendency, 10/17/13, 14 pages AA Student Progress by ,

12/9/13, 24 pages BB Treatment Summary by ,

MS, BCBA, 12/10/13, 4 pages CC Tuition Affidavit and Proofs of Tuition Payment ,

12/12/13, 4 pages DD Letter of Attendance , 12/19/13, 1 page EE School and Home Observation and Report and Recommendation by:

Carol Fiorile, Ph.D. BCBA-D, SAS, 12/28/13, 12 pages FF Home Program Progress Report by: , M.S., BCBA, 12/20/13,

6 pages GG Speech and Language Progress Report by , MS, CCC-SLP,

12/8/13, 1 page HH Invoices and Proofs of Payment for Providers, August 2013- November 2013 II Behavior Intervention Plan, 8/3/13, 3 pages

DEPARTMENT OF EDUCATION

1 Document, 5/2/10, 6 pages 2 Due Process Response, 7/9/13, 4 pages 3 IEP, 4/18/13, 25 pages 4 Transportation Accommodations, 4/8/13, 1 page 5 Observation, 2/5/13, 2/6/13, 2 pages 6 Report, 7/2/08, 4 pages 7 Student Progress Report, 3/6/13, 28 pages 8 Proposed Goals and Objectives, 3/14/13, 4 pages 9 Home Program Progress Report, 2/16/13, 11 pages 10 Home Program Progress Report, 4/8/13, 4 pages 11 School and Home Observation, 4/13/13, 13 pages 12 Due Process Response to Amended DPC, 12/18/13, 6 pages 13 Due Process Response to Amended DPC, 10/1/13, 5 pages

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Footnotes

[3] The 6:1:1 program recommendation was inappropriate for the 2013-2014 school year. (Ex. 3-13-14, W-14). At the time of the April meeting, continued to present with significant challenges across all domains. (Exs. 8, 9, 10; Tr. 412); he exhibited . (Exs. 9, 10; Tr. 15, 179, 218, 358). He required instruction and was unable to learn new