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: October 11, 2013

January 23, 2014

March 20, 2014

April 7, 2014

Actual Record Closed Date: May 13, 2014

Hearing Officer: Linda S. Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 11, 2013

Attorney — Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 23, 2014

Attorney — Parents

Parents

Attorney — DOE

Dr. School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 20, 2014

Attorney — Parents

Parents

Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 7, 2014

Attorney — Parents

Parents

Parents

Principal — Parents

Teacher — Parents

Attorney — DOE

On September 4, 2013, I was designated by the New York City Department of Education (“DOE”) as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York in the matter of H.S. and the parents through their attorney initiated this hearing on September 4, 2013 and amended on November 1, 2013. The amended request was accepted by the district on November 5, 2013. Hearings were held on October 3, 2013, January 23, 2014, March 20, 2014 and April 7, 2014. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly, the requests for extensions of the compliance dates were granted (Tr. at 94-97; 177;229; IHO Exhs. 1-V). The current record close date is May 13, 2013 and the decision due date is May 27, 2014. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

This proceeding arose under Article 89 of the New York State Education Law and Commissioner’s Regulations as set forth in Part 200 of Title 8 of the New York Code, Rules and Regulations (“NYCRR”). Specifically, Section 200.5 of the Regulations provides the mechanism whereby a parent may challenge the validity of the recommendation made by a public school district’s Committee on Special Education (“CSE”). The hearing was initiated the parents who challenge the May 17, 2013, review and recommendation of the CSE.

The parents unilaterally placed a preschool special educational program approved by New State Education Department approval. .’s parents seek an order for the DOE to fund H.S.’s placement at CPELC per the Individualized Education Program ("IEP") dated July 16, 2012 and provide related services and bussing per her last agreed upon IEP dated July 16, 2012 (Exh B at 1). On October 28, 2013, I ordered that the pendency placement for H.S. was the continuation of the July 16, 2013 IEP (Exh. K). On November 1, 2013, the parents amended their due process (Exh. 1) and on November 5, 2013, the district approved to the amendment.

BACKGROUND

with a history of including significant , and and was (Exh. 18 at 3, 11; Exh. 16 at 1).

She was (" ") at the age and received special education services of individual SLT and OT through early intervention (“EI”) and attended 2 hours per day in a class with a staffing ratio of children and and an additional teacher was added for a staffing ratio of (Exh. 18 at 4).

When she fell in the jurisdiction of the Committee on Preschool Special Education (“CPSE”), the IEP dated July 16, 2012 was developed . was classified as a Preschool Student with a Disability. The IEP recommended a 12-month program in a special class in a center based program for 3 hours per week with a staffing ratio of and provided related services of individual (“ once for 30 minutes per session and once for 30 minutes in a group of three and twice a week for 45 minutes as an outside service as well as individual physical therapy ”) twice a week for 30 minutes per session and individual occupational therapy twice a week for 30 minutes per session (Exh. A at 15).

-behavioral pediatrician indicated , delayed communication and her scores fell into the (" ") and recommended a small specialized preschool with a low student to teacher ratio with Applied Behavior Analysis ("ABA") and use picture exchange communication system ("PECS") as a mode of augmentative communication (Exh. 15 at 3,4).

On October 3, 2012, provider indicated her in present level of performance report at the age of 4 and noted that in all areas and and peers and adults (Exh. 17 at 1). provider indicated to clinician-directed tasks and had difficulty transitioning between activities and her articulation was poor due to her severe speech sound delay (Exh. 17 at 2).

On January 7, 2013 provider indicated that at age the task at hand and presented with an "increased need for oral input as on her shirt"(Exh. 7 at 1). The OT provider noted that H.S. functioned in approximately 2-2.2 year level (Exh. 7 at 2).

On January 14, 2013, provider indicated that at the age of 4 that presented with low muscle tone and poor trunk and core strength and required prompting to attend to tasks (Exh. 8 at 1). The awareness and required stand-by supervision when negotiating stairs (Exh. 8 at 2).

On January 15, 2013, indicated in a progress report since September 2012 in a class with a staffing ratio of 8:1:2 and received twice a week in school and noted her cognitive skills were ranging between 2-3 years of age (Exh. 9 at 1). Her teacher indicated that that were communicate her wants and needs and noted her social/emotional skills (Exh. 9 at 2).

Another CPSE IEP was developed on January 30, 2013, and the CPSE team recommended that . be placed in a special class in a full day center-based program to address her developmental delays in a small structured classroom with a staffing ratio of with and provide related per session; PT twice a week for 30 minutes per session; individual SLT once a week for 30 minutes per minutes in a group of 3; twice a week for 45 minutes outside of school and in a small structured classroom (Exh. 18 at 4).

On February 6, 2013, a classroom observation was conducted by Dr. School Psychologist, during playground time, morning meeting and table top activity time at Education meeting (Exh. 5 at 1). Dr. noted "did not initiate any interaction with her classmates or adults nor did she anyone while on the playground"(Id.). Dr. observed that and that did not sing or count with the teacher and required adult assistance to follow directions of a song (Exh. 5 at 2).

On April 3, 2013, provided a clinical summary that indicated that regressed since the last visit on April 2012, and and had had become more limited and and recommended another year of preschool at CPELC (Exh. 16 at 1).

On May 9, 2013, a was at the age and the pediatrician used the Wechsler Preschool and Primary Scale of Intelligence-4th Edition, and found that full was 59 in the extremely low range, with a verbal and a visual spatial score of 67 in the 1st percentile and her working memory and processing speed scores were <0.1 percentile in the extremely low range compare to her same aged peers (Exh. 18 at 6). The neuropsychological evaluation noted that her expressive and receptive language interfered with her ability to comprehend and respond to material and her ability to attend also interfered with her ability to listen and take in new information (Exh. 18 at 7,8) and that .’s had " , problems attending to functioning"(Exh. 18 at 10).

On May 12, 2013, provider reported her observations when years and 9 months and and significant difficulty engaging and interaction with others"(Exh. 19 at 1). The provider indicated that was a to both structured and unstructured tasks (Exh. 19 at 2).

On May 17, 2013 the CSE met impairment and a special class in a district 75 school with at staffing ratio of 8:1:1 and receive related services of sessions per week for 30 minutes per session, twice a week for 30 minutes per session in a group no larger than 2; individual for 30 sessions per week for 30 minutes per session and individual for 3 session per week for 30 minutes per session (Exh. 20 at 7). The IEP indicated that the CSE team considered and rejected a recommendation to defer to CBST, and considered and rejected a placement of a community school with a staffing ratio of 12:1:1 (Exh. 20 1at 10).

The events log indicated that the parent and advocate disagreed with the recommendation and requested a deferral to CBST (Exh. 2 at 2)

A placement was formally offered to the parents on June 17, 2013 for the 20132014 school year (Exh L).

On August 9, 2013, the parent notified the CSE Chairperson that she did not feel that her daughter would receive in the special class for kindergarten as she was currently in program and required to monitor and to assist her as she was not toilet trained (Exh. C at 2).

THE DISTRICT’S CASE

The DOE presented the testimony of , a DOE School Psychologist, who evaluated children and was employed by the DOE since 2008, testified she participated in the May 17, 2013 "Turning Five Review" and recalled that the team had before it various progress reports from the CPSE SLT provider (Exh. 6) , the CPSE PT provider (Exh. 8) the teacher provided a report (Exh. 9) and noted that special education teacher participated as did a general education teacher, a parent member, the parent and the parent's advocate (trans. 24;26). She noted that the goals were generated from the related service provider's reports and recalled that no toileting goal was included as the parent did not request any addition to the goals (trans. 29). She stated that it was her understanding would be addressed programmatically school (trans. 40) She stressed that would be addressed in a placement in a District 75 special education school in a special class with a staffing ratio of the recommended program was the least restrictive environment (trans. 33-34). She stated that the IEP was a "work in progress so if that setting does not seem to provide enough structure, there are other programs with more adult supervision"(trans. 35). She further stated that the form (Exh. 14) was a federal government mandated document for child who exited CPSE (trans. 38).

On cross Dr. Forman stated that the while the CSE team relied on the same assessments as the prior CPSE team, the recommendation for a District was the least restrictive environment and she opined that recommendation of a deferral to CBST for a DOE approved private placement was a more restrictive placement (trans. 48-50). She stated that she (Exh. 5) for 2 hours and that she observed that . used the same foot and sometimes (trans. 54). She further stated that she observed . required the assistance of an adult in a class with a staffing ratio adults (trans. 58-62). She acknowledged that she was aware had recommended another year of preschool as she was not (Exh. 18 at 11); however, she opined "they all say the same thing"(Exh. 69).

On cross Dr. Forman recalled that and acknowledged that the DOE had programs designed for autistic children; however, she was mandated to recommend the least restrictive environment (trans. 72). She opined that then current special education teacher recommended a small class environment that was highly structured with appropriate peer models, the team felt a less restrictive environment warranted a District 75 program housed in a community school might have peers (trans. 83). She acknowledged that the Student Outcome Summary Form indicated . had the same score of 3 for acquisition of skills (Exh. 14) when she entered and exited CPSE program with a range of 1 to 7 (trans. 89).

THE PARENT’S CASE

The parent, Principal and .'s special education classroom teacher testified in support of the parents’ request to continue the unilateral placement of for the 2013-2014 school year funded by the DOE.

Ms. testified that she possessor of 2 master’s degrees in special education and general education for birth to twelfth grade and a possessor of a master's degree in administrative supervision (trans. 185). Ms. stated that she was employed by CPELC for the past 16 years and explained was a preschool for children aged 3 to 5 with special education needs (trans. 184). She explained was a preschool program for 162 children with 80 staff members including providers and a full-time nurse (trans. 185). She noted that the school had small structured nurturing programming with various class sizes of children per class and related service provider pushed into the class to work with the teachers (trans. 186). She related that all teachers were certified in general and special education (birth to second grade) and all teaching assistants have 18 credits of college (trans. 187). She explained that there were weekly meetings with the staff and she and 2 other supervisors met individually with the teachers on a monthly or bimonthly basis to insure the curriculum was coordinated (Id.).

Ms. noted that a creative curriculum (Exh. D) was used in a small structured class where students were grouped into dyads with a teacher. She further noted that the teachers rotated so across activities (trans. 188). She described full day program started at 8 am and ended at 2:00 pm with an instructional lunch (Id.). She explained that she was familiar with 's class in the 2013-2014 school year as she had been a student for the past 3 years (trans. 189). She stated was placed in a class with a staffing ratio of with 2 additional assistants for a total staffing (trans. 190). She noted that the related service providers were present in the classroom to make sure that the strategies and the fine motor activities were provided correctly in class by the teachers (trans.196).

On cross Ms. stated that there were 3 inclusion classes with 12 students from the community with no developmental delays who attended as general education students (trans. 197). She explained that there were multiple gyms in the school and noted that and required to gym with equipment appropriate . who required an adult in the gym (trans. 202).

special education teacher and a possessor of a master's degree in early childhood education for both special education and general education, testified that she was the head special education teacher in a class class (trans. 204). She stated that she was responsible to create weekly and monthly lesson plans and individualized lessons for each student (trans. 205). She stated that for the 2013-2014 school year she had 2 teacher assistants and 2 paraprofesisonals in her class for a total staffing ratio of 8:1:4 (trans. 205). She explained that the 2 additional paraprofessionals were designated to 2 students and did not require a designated paraprofessional because there was sufficient adult support (trans. 206). She academic needs which required physical, verbal and visual consistent redirection as she was (trans. 207).

Ms. stressed that in addition to required a sensory diet incorporated throughout the day and explained that the included a compression vest, a bouncing ball and spinning on a chair or walking or swinging the PT room (Id.). She further stressed that in addition to the sensory diet . required bicycle breaks and wagon breaks with weighted blankets (Id.).

Ms. . had progressed as a result of her individualized plans in her language and her ability to communicate her needs and opined in her pronunciation and was able to decrease her communication book because she was able to express her needs (trans. 209210). She opined in her and was able to progress in her ability to label (trans. 211). She to safe in class, on the playground and required constant adult supervision to engage with peers and noted recently starting to socialize and was able to imitate basis dialogue with a peer modeled by a teacher (trans. 211-212;215). She opined that progressed in her socialization because the class was broken into groups of 2 or 3 and that with . was able to independently say " and improved in her (trans. 219).

Ms. explained . required supervision during lunch in class with 8 children and 4 adults (trans. 213). She opined from her related service providers who pushed into the class which happened during the academic part of the day (trans. 214). She described the generalization that she used to . learned across all domains in class and at home and that she was in constant communication through the visual communication book and noted that H.S.'s toilet training progressed slowly with a sufficient staffing of 5 adults for 8 children (trans. 214-216). She opined greater progress in her ability to dress and put her shoes on and off (trans. 217).

On cross Ms. stated that her class had 8 students aged 3 to 5 and she believed . had received her mandated related services (trans. 222). She explained that she did not believe displayed kindergarten skills . and the following basic tasks: following a 1step direction; eating a meal; transitioning from and (trans. 225). She further stated was a major concern especially she transitioned outside the classroom (trans. 225). She explained that transitioned outside the classroom an adult always and snacks were utilized to help her self-regulate (trans. 226).

The parent testified that in September 2012 in a class of a staffing ratio of 12:1:2 and was soon placed in a class with more adult support in a class with a staffing ratio of 8:1:2 with the extra support of an adult because her daughter was very limited and was unable to converse and required constant supervision (trans. 111). She stated that she participated in the May 17, 2013 IEP meeting and recalled that she agreed with the classification of (trans. 113;118). She stated that her daughter also had a diagnosis of which made it difficult for her to and she thought was an appropriate classification (trans. 121). The parent stated that she told the May 17, 2013 IEP that her daughter had the and did not skills (trans. 122). She stated that her daughter required someone to guide (Id.).

The parent recalled that she told the May 17, 2013 IEP team that not ready for a program (trans. 124). She noted that her daughter's then special education teacher participated as did her then current provider and recalled that she told the team that the recommendation of a special class with a staffing ratio in a community school did not provide sufficient support for her daughter (trans. 125;161). She recalled that she told Dr. that her daughter's profile was complex as outlined in the (Exh. 18) and requested a deferral to CBST; however, Dr. her a deferral to CBST was not the least restrictive environment (trans. 126). She recalled that she spoke with Dr. after the IEP meeting who recommended that the parent contact the Horizon program; however, she was told by that her daughter was ineligible for the Horizon program because her daughter did not have sufficient language (trans. 159).

The parent recalled that when she arrived at the IEP meeting the IEP was handed to her before anyone started to speak and she assumed the IEP was a draft (trans. 129). She was her greatest concern because a tendency to wander off was not unable to speak for herself (trans. 129).She recalled that she visited the proposed school and was concerned that was housed in a middle school (trans. 130). She stated that she was concerned that the children she observed in the proposed class were self-sufficient and were toilet trained and she wrote to the CSE Chairperson (Exh. C) on August 9, 2013 to express her concerns (trans. 135). She stated that she did not receive a reply to her letter (trans. 136).

The parent opined that her daughter progressed during the 2013-2014 school year in that she was making better eye contact and was attempting to articulate her needs rather (trans. 137). She stressed that staff communicated with her to answer questions and apprise progress (trans. 138).

On cross the parent stated that she visited the proposed school in last June (trans.145). She stated that she was worried that the proposed class at was located in a middle school and when she visited the class, she observed it was in a middle school (trans. 147). She stressed that she spoke with the staff at the proposed school and was told that the school would perform their own evaluations and that services would not start "right away" (trans. 149). She further stressed that the school psychologist, Dr. handed her the IEP when she walked into the meeting (trans. 150).

The parent maintained that she requested a deferral to CBST because her daughter's needs were so significant that she did not was ready and she was concerned with the amount of related services offered outside the classroom and requested a deferral to CBST (trans. 153-154). She explained that a referral to CBST offered programs with more specialization than the District program (trans. 155). She further explained that when she received the IEP at the start of the meeting there was a pre-printed sentence indicating she rejected the recommendation prior to her knowledge of the recommendation (Exh. 20 at 10; trans. 164). She stressed she disagreed with the amount of services and support (trans. 165;168).

FINDINGS OF FACT AND DECISION

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide “all children with disabilities” a “free and appropriate public education” (20 U.S.C. Section 1400[d][1][A]). (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13).

To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

The parents claim that the May 17, 2013 IEP was substantively and procedurally defective. I find the DOE’s claim that its program was appropriate was not supported by the district witness or the district’s evidence. I find credible and persuasive the testimony of staff and parent concerning and needs, including her and and her need for direct teaching of social skills to learn to socialize with peers and her need for individual attention to progress in communication and to safely navigate her environment. I find the May 17, 2013 CSE team was aware needs as contact and had difficulty interacting with adults and peers and had reduced attention by the progress report on October 2012 (Exh. 17 at 1), and progress reports of January 2013 (Exh. 7 at 2; 8 at2), the April 3, 2013 letter from H.S.’s doctor (Exh. 16 at 1) and the CPELC progress report of January 2013 (Exh. 9 at 2) and the observation by the district's witness, Dr. (trans. 51). I find the May 17, 2013 CSE was aware of the deficits in cognition, , social pragmatics and daily living skills by the May 9, 2013 (Exh. 18 at 10) and the May 2013 SLT progress report (Exh. 19 at 2) noted . I find failure to provide program with to address these deficits of with skills that were on a (Exhs. 7 at 1, 2, 8 at 2, 9 at 2) resulted in a lack of FAPE. The parents’ attorney asserted that the DOE failed to a FAPE for 2013-2014 because she required a more intense adult to student ratio and a more intense behavior and social program than the DOE was willing to provide to address her deficits in academics, communication and socialization. I conclude that the evidence presented by the district does not establish that its program would provide the instruction required by H.S. and that the IEP is substantively defective. (see P.K. v. New York City Dep’t of Educ., 819 F. Supp. 2d 90, 57 IDELR ¶ 139 (E.D.N.Y. 2011). I further find the IEP is not reasonably calculated to enable the student to receive educational benefit. Accordingly, I find that the DOE failed to for the 2013-2014.

Because I find the IEP is substantively defective and FAPE was not provided to for the 2013-2014 school year I could end my inquiry; however, I note the parents made several claims of procedural defects.

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR ¶ 234 (App. Div. 2011.)

The parents’ attorney argued that the IEP team ignored the parent's concerns addressed at the May 17, 2013 EIP for more individualized teacher support and social/behavior intervention in order to progress academically and socially (Exh. A at 1). The parents’ attorney further argued that the IEP team failed to review the proper documentation and the resultant IEP did not accurately and academic levels (Id.). I agree and find the IEP team did consider the documentation present at the review as the IEP did not need for to safely negotiate her environment, a concern outlined in the area of needs (Exh. 20 at 2). I further find the IEP did not provide sufficient support to meet her management needs and or her learning needs and I find this failure caused a deprivation of an educational benefit.

The parents' attorney asserted that the May 17, 2013 IEP team was improperly constituted and was procedurally invalid (Id.). The parents’ attorney argued that there was no special educational teacher or regular education teacher capable of implementing the IEP. I find then-current CPSE classroom teacher acknowledged that she never instructed a special class at a District 75 program; however, I find that she was a NYS licensed and certified special education teacher and I find she possessed sufficient qualifications to serve as the special education teacher. I further find no regular education teacher was present as a regular education program was not recommended.

I find the parent established that she expressed the need for instruction and was not ready for in a special class with a staffing ratio of the parent established she expressed the need IEP and the team’s decision to consider only a special class with a staffing ratio at a District program in a community school was made without consideration of the neurological evaluations, the doctor's report and progress reports that recommended a "much teacher intervention" and 10 hours of SEIT (Exh. 18 at 11) and ABA instruction (Exh. 15 at 4) and the lack of caused an educational depravation. I find the CSE team was aware of the dangerous behavior due to her distraction and inability to focus exhibited by H.S. as documented by the CPELC SLT progress report of March 2012 (Exh. 19 at 3) and the doctor's letter (Exh. 16 at 1) on April 3, 2013 that warned of the regression observed since April 2012 in her loss recommended another and the CSE team ignored the parent's request for more support which significantly impeded the parent's opportunity to participate in the decision making process. I further find the decision to refuse to consider a more therapeutic program caused a deprivation of educational benefits. Accordingly, I find FAPE was not provided the 2013-2014 school year. I note that the Second Circuit of New York ruled in M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 59 IDELR ¶ 62 (2d Cir. 2012)and upheld $80,000 tuition reimbursement for kindergarten child with autism based on finding that child needed extensive -trial ABA services, which district’s proposed 12:1:2 placement did not provide.

The parents' attorney argued that the goals were insufficient as the goals did not address . An IEP must include appropriate annual goals, consistent with the student's needs and abilities, with the evaluative criteria, evaluations procedures and schedules to be used to measure progress towards meeting the annual goal per 8 NYCRR 200.4[d][2][iii]. I find the IEP goals and short-term objectives are consistent with her needs as reported by her teachers and related service providers; however, I find the lack of adult support to supervise and instruct rendered the academic goals insufficient to meet her needs. Moreover, I find the lack of a toileting goal for a child who

The parents' attorney argued that the decision to recommend of a special class with a staffing ratio without adequate (Exhs. 15;16) and the progress report (Exh.

19 at 3) and the CPELC progress reports of the teacher and related service providers (Exh. VIII at 5-7). The parents' attorney asserted that Dr. Forman's had knowledge of H.S.'s EI class with a staffing ratio of 15:3 with a floater for H.S. (trans. 74) and that the CPSE added an addition SEIT for H.S. (Exh. VIII at 7) and Dr. Forman had no knowledge of District 75 kindergarten program (trans. 92) and could not explain how a special class with a staffing ratio was appropriate (Exh. VIII at 7).

I note that the school district must identify a school which is capable of implementing the IEP as the Second Circuit of New York ruled in T.Y., K.Y, on behalf of T.Y., v. New York City Dep’t of Educ., 584 F.3d 412 (2d Cir. 2009). I further note that the school district bears the burden to show that it can implement the IEP at an actual appropriate placement and per a recent case from the Southern District of New York explicitly applying R.E., has confirmed that "designing an appropriate IEP in accordance with the procedural and substantive requirements of the IDEA is only the first step." D.C. ex rel. E.B. v. N.Y.C. Dep’t of Educ., 2013 U.S. Dist. LEXIS 42764, at *39 (S.D.N.Y. Mar. 26, 2013). I credit the testimony of Dr. required a program with more adult supervision than there were other programs for her (trans. 35). However, I find the holding in R.E. v. N.Y.C. Dep’t of Education., 694 F.3d 167, 186 (2d Cir. 2012), barred this testimony and I find the Second Circuit held that “retrospective testimony” is barred from consideration. Id. at 186 and I am barred from considering testimony that certain services not listed in the IEP would actually have been provided to the child if that child had attended the school in the district’s proposed placement. Furthermore, I credit the testimony of the parent who stated that she was told by staff from the proposed school did not have related service providers "right away" (trans. 149). The parents' attorney argued that "parent had a right to rely on information given to them by the school. See D.C. on behalf of EB. v. New York Dept. of Education ., Slip Op., 12 Civ. 1394 (JGK), at 22 (S.D.N.Y. March 25, 2013)" (Exh. VIII at 8). The parents' attorney argued that a parent can challenge the placement even if the child never enrolled in the school. "This argument is made in C.S. v. New York City Dep't of Educ., p. 32, 12 Civ. 3558, (S.D.N.Y. March 25, 2014), which says this is true, regardless of whether Plaintiff even actually (Id.). The parents asserted would not have been grouped appropriately in the proposed class in terms of her social or emotional needs. I find that pursuant to state law, students with disabilities shall be grouped by similarity of the individual needs according to 4 criteria: academics, social development, physical development and management needs per 8 NYCRR 200.6[a][3]. I do not find testimony or evidence would have been grouped with children with similar academic, social development and management needs.

Therefore, I find the district failed to establish that FAPE was provided during the 2013-2014 school year as I find CSE failed to offer an appropriate placement for the 2013-2014 school year.

The parents must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. In order to meet that burden, the parents must show that the private school offers an educational program that meets the student's special education needs Burlington, 471 U.S. at 370 (1985). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-092). The parent must establish by a preponderance of the evidence that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 (2d. Cir. 2007).

The Second Circuit held that the private school need not meet the IDEA definition of a FAPE, formulate an IEP for the student, or provide the student with teachers certified in special education Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). The issue of the private school's appropriateness depends on whether CPELC was “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F. 3d at 364. Parent need not show that a private placement provides every special service necessary to maximize their child's potential in order to qualify for reimbursement Frank G., 459 F. 3d at 365. The private placement must be reasonably calculated to enable a child to receive educational benefits and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement … provides education instruction specifically designed to meet the unique needs of a handicapped child” Gagliardo, 489 F.3d 115.

Testimony adduced at the hearing clearly demonstrates providing a small structured therapeutic environment with a component and emotional regulation. a small, special education school for children who required a developmental preschool. I find persuasive testimony and evidence (Exhs. that E to H) that the special educational services and behavioral intervention and provided her academic, behavior, social and emotional needs. I find the and modeling she required and I needs were met with which allowed a mainstreaming component. was placed in a class with a total of 8 students with a certified special education teacher and 2 teaching assistants and 2 paraprofessionals and I find the supervising staff met with the teachers bimonthly to her academic deficits were addressed and I find the related services providers were present in the classroom to ensure that the receptive language strategies and fine motor activities were carried out by the teacher. I find credible the testimony from classroom teacher that the staffing ratio provided sufficient support for her academic needs which required constant physical, verbal and visual redirection. I find credible the testimony that the sensory diet of a compression vest, bouncing ball, swinging and walking helped regulate as did the bicycle breaks and wagon breaks with weighted blankets (trans. 207). I find the classroom teachers and related service providers provided special education services to unique needs. The parent and and classroom teacher testified that the was appropriate made progress. I credit this testimony. Testimony adduced at the hearing established that because of the intensive level of . received at the she had made progress and I find she progressed in her self-care skills during the 2013-14 school year. I credit this testimony.

Testimony adduced at the hearing established that the both the parent and the school worked on and I and emotionally during the 2013-2014. I find in her . I find were addressed by using the sensory diet and the techniques developed by the . I find testimony adduced at the hearing established that education needs were met by her teachers and related service providers Therefore, I find that the parents met their burden regarding the unilateral placement the 2013-2014 school year.

Equity may only favor a school district if the parents failed to cooperate with the CSE process or acted in bad faith "See Bettinger v. New York City Bd. of Educ., No. 06 CV 6889, 2007 WL 4208560 (S.D.N.Y. Nov. 20, 2007) (IHO Exh. VII at 20). I note that the parent established full cooperation by her August 9, 2013 letter to CSE alerting CSE that the proposed school was not appropriate (Exh. C) and her openness to an appropriate placement. Tuition reimbursement to be reduced or denied if the parent (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to his “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the parent informed the CSE that she intended to continue to enroll for the 2013-2014 school year when no appropriate program or placement was offered after the most recent CSE meeting and I find the parent complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the equitable considerations do support the parent’s claim for reimbursement. In this case, the parent fully cooperated with the district to the best of her ability.

ORDER

Therefore, is hereby ordered that the Department of Education to continue to fund the tuition for the 2013-2014 school year and provide transportation. Dated: May 20, 2014

Linda S. Agoston, Esq. gc

LINDA S. AGOSTON, ESQ.

Impartial Hearing Officer

LS: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 ON OCTOBER 11, 2013

A IEP, 7/16/12, 19 pp. Parents

B Due Process Request, 01/03/13, 3 pp. Parents

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 23, 2014

1 Petitioner's Complaint, 11/1/ 13, 3 pp. District

2 DOE Student Information System Events, 1/13/14, 6 pp. District

3 Department Assessment Planning for Student, 1/14/13, 1 p. District

4 Department Request for Physical Exam for Student, 1/14/13, 4 pp. District

5 Department Classroom Observation, 2/6/13, 2 pp. District

6 AHRCCPSE, Progress Report, 1/16/13, 2 pp. District

7 AHRC OT, CPSE, Annual Review, 1/7/13, 2 pp. District

8 AHRCCPSE PT Annual Review, 1/14/13, 3 pp. District

9 AHRCCPSE, Educational Progress Report, 1/14/13, 2 pp. District

10 Department Parent Survey, 1/30/13, 1 p. District

11 School Version Rating Form, 2/6/13, 1 p. District

12 WCMC Internal Medicine, East Referral, OT, 3/11/13, 1 p. District

13 WCMC Internal Medicine, East Referral for PT, 3/11/13, 1 p. District

14 Department Child Outcome Summary Form, 3/13/13, 1 p. District

15 Dr. , Developmental Pediatric Report, 12/3/12, 4 pp. District

16 Clinical Summary by Dr. 4/3/13, 1 p. District

17 Progress Report by , 4/11/13, 4 pp. District

18 Neuropsychological Evaluation by , 5/9/13,14 pp. District

19 Progress Report, 5/12/13, 3 pp. District

20 IEP, 5/17/13, 11 pp. District

21 Acceptance Page, 5/17/13, 1 p. District

I Decision on Extension, 12/17/13, 1p. IHO

II Decision on Extension, 1/13/14, 1p. IHO

III Decision on Extension, 1/23/14, 1p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 20, 2014

C Parent Letter, dated 8/9/13, 2 pp. Parents

D Program Description, CPEL, '13-'14, 1 p. Parents

E Progress Report, dated 1/10/14, 1 p. Parents

F Progress Report, 1/15/14, 2 pp. Parents

G Progress Report, 1/8/14, 2 pp. Parents

H Progress Report, 1/8/14, 3 pp. Parents

I '13-'14 Attendance Form, 1 p. Parents

J '13-'14 Class Schedule, 1 p. Parents

K Pendency Order, dated 10/28/13, 5 pp. Parents

L FNR, dated 6/17/13, 1 p. Parents

IV Decision on Extension, 3/12/14, 1p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 7, 2014

V Decision on Extension, 4/7/14, 1 p. IHO

POST HEARING SUBMISSION

VI Decision on Extension, 5/13/14 1 p. IHO

VII DOE’s Brief, 5/13/14, 23 pp IHO

VIII Parent’s Brief, 5/12/14, 17 pp. IHO