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 18, 2013

February 25, 2014

May 30, 2014

July 9, 2014

Actual Record Closed Date: August 26, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 18, 2013

Attorney — Student

CSE Dist. Rep. — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 25, 2014

Attorney for Parent — Student

Parents

District Representative — DOE

Principal — DOE

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

Attorney — Student

CHRISTOPHER HAMILTON, Parent

For the Department of Education: , CSE 3 District Representative , IEP Special Education Teacher (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 9, 2014

Attorney — Student

Parent/Mother — Student

Parent/Father — Student

DR., Director — Student

Institute (Via Telephone) — Student

Teacher at — Student

(Via Telephone) — Student

District Representative — DOE

This matter came before me on October 18, 2013, February 25, May 30 and July 9, 2014, pursuant to the Individuals with Disabilities Education Act (IDEA). The timelines were extended each hearing day, to accommodate witnesses’ testimony and closing briefs. Appended to the record are lists of persons in attendance and documents submitted into the record.

BACKGROUND

The student hereinafter shall be referred to . The Committee on Special Education (CSE) convened a turning five review meeting on March 14, 2013, to develop an Individualized Education Program (IEP) for the student. The CSE classified the student as autistic. It recommended , in a specialized school, with related services. The related services recommended , all the services were to be provided weekly, on an individual basis, three times a week, in thirty minute sessions. The parents filed their Due Process Complaint (DPC) on September 3, 2013.

The parents alleged that the Department of Education (DOE) failed to offer their son a “free appropriate public education” (FAPE) on procedural as well as substantive grounds. The parents are seeking an order requiring the district to fund their child’s tuition at the ) for the 2013-2014 school year. The DOE contends that a FAPE was offered.

THE DEPARTMENT OF EDUCATION’S CASE

The DOE’s first witness . There are held in trailers. There are approximately 25-30 teachers including . In addition, there is a unit coordinator and an assistant principal who are there daily. All of his classes used applied behavior analysis (ABA) when it came to positive behavior support, reinforcement and shaping. None of the teachers at the site are teachers are trained in the TEACH methodology; the TEACH structure is set up in the classrooms. The TEACH methodology does not necessarily have a curriculum. The students who come in at five years of age are typically placed in classes where the teachers are trained in the ABA methodology. In the ABA classes discreet trials are used. The site has approximately two each of physical and occupational therapists, and six speech therapists. (T. 17-20 and 21-22)

All of the teachers for the children. The children are assessed in the fall, in a variety of ways. They have reinforcement inventories to assist them in shaping the children’s behaviors and for those children they offer social skill’s plans. All students either have provided by the classroom. The related services are provided on a push-in or pull-out basis, speech is typically provided in the classroom. (T.23-24)

Mr. stated that he never met or observed the student; he had no input into the creation of the student’s IEP for the 2013-2014 school year. The students may receive ABA instruction during their one-to-one instructions which occur three to five times a week, lasting from 10 minutes to 30 minutes. He explained that TEACH and ABA are not mutually exclusive and that the TEACH structure is just how the classroom is set up, it helps the student navigate the classroom; it does not address curriculum. He noted that he is responsible for eight different sites which are under the umbrella of one school. His main office is located inside of 151 typically once a week. He had no involvement in placement of the student. District 75 has its own placement office and usually placement is driven by the closest location to the child’s home. (T.25-28; 30-32)

He has 17 classes at 151, there are and one integrated preschool. All of the students at the school are . All of the classes are located , the trailers are usually connected. Two of the trailers are used for gym and one trailer is used There are multiple sessions going on at the same time. All speech sessions are done in the classroom, individual and group. The specials are taught in the same classroom, the art teacher travels to the different classrooms that the students are in. In the mornings the students go to the main building for breakfast; the general education students are not there. Lunch is served in the classrooms; there are about 101 students in his program at

151. When parents visit his site typically the unit coordinator takes them on the tour; she follows the same routine, in terms of what she shows the parents and what she tells them. (T.32-35 and 36-38)

The district’s final witness was a dual certified teacher who participated at the student’s March 14, 2013 IEP review, as a special education teacher. He is assigned to the CSE 4. (T. 48-49and at 52) He identified the participants at the meeting and the program recommended with the related services. The recommendation was based on the evaluations and the discussion at the review. He described the student as having an IQ in the borderline range with scattered skills and requiring prompting. His language skills appeared stronger receptively than expressively. He is able to identify numbers; he responds to a greeting and he enjoyed coloring. He benefits from one to one support. He discussed his observation; the child appeared to be well behaved and required frequent prompting to stay on task. Other programs were considered; they were rejected because either they were not supportive enough, too restricted. The team considered a CBST recommendation and rejected it as not warranted since could meet his needs. The goals were provided by the student’s school; they were considered and deemed appropriate. He did not recall specifically whether the parents and the private school participants were in agreement with . The student was when he observed the student. He believed the student could function in . He agreed then on the recommendation and still believes that it is an appropriate program. (T.53-55; 57-60 and 61-62) (Exs. 4 and 1)

On cross-examination, he testified that he attended approximately 15 CSE meetings per week, during the spring of 2013. His observation lasted approximately 30 to 45 minutes. He has never personally tested the student. (T. 64-66) Mr. that he is in classrooms mentoring and coaching teachers and in a supervisory capacity sometimes. He had class for about six months at the time of the CSE review, two to three times a week, for about two hours or so. He has been children. He found the parents to be very cooperative at the review; they had concerns about the recommended program. They shared with him a similar program before; it had not been a positive experience. The parents indicated a willingness to keep an open mind and to look at the program and then make a determination as to the appropriateness of it. The proposed placement information is not available at the IEP meeting. (T. 69-72 and at 73)

Mr. stated that the student’s teacher gave information at the review about the child’s and noted that he was making progress. There was no parent member at the meeting. He identified the documents that were relied on at the review. There was an educational evaluation and an occupational therapy report. Also, there was a speech therapy report. He never spoke to the child’s service providers. (T. 74-76; at 78 and at 82) (Exs.3, 6,4 and 5) He noted that the child’s school used ABA discreet trials and reinforcements. His teacher told him that the child was benefitting from ABA. The goals provided by the child’s school were for students using ABA, not specifically for use at his school. The recommendation was for .(T.83-85)

They discussed the he needed . He used He was . His with support. At the time of the observation, the teacher was working one to one with the child. The His were transition. There were safety concerns regarding his balance and coordination. He would make eye contact with his peers and used simple phrases when prompted. The team reviewed the progress reports including the related service providers’ reports prior to the meeting. (T.86-89 and 90-94)

THE PARENTS’ CASE

The parents’ first witness was , the principal and director of has a SAS in School Administration and Supervision. She has a permanent state certification in school administration and supervision. She a nonpublic preschool and school age program for children with a diagnosis of autism. In the 2013-2014 school year, the school had a total of 24 students ranging in age from four to 21. The school is an approved school with New York City which means it is funded by the New York State Board of Education. All of their 24 students were funded by NYC DOE. The school only accepts students with a diagnosis of autism. The classroom structure usually consists of one certified special education teacher and a minimum of three other professional instructional staff with six students. The student-teacher ratio is maintained throughout the day. (T.101-104 and at 105)

She described the student as having a number of strengths, such as having sight reading skills, good with numbers and letter identification as well as strong schedule following skills. Activities that are challenging to the student are interactions with others, sustaining eye contact and fine motor activities. She confirmed that the child attended her school for the 2012-2013 school year and that he . She discussed his 2013-2014 class which consisted of seven students and six adults; she had a variance. The school provides ongoing professional training, primarily in the classroom. She was in the student’s classroom daily, to provide direct training, to collect data and to ensure the validity of the data. She discussed the child’s daily schedule, it is fluid and flexible. The schedule is designed to address the student’s unique needs. The length of activities varies; it can vary on a daily basis or on a weekly basis. The student is challenged by change in his schedule, he needs to develop a tolerance for change and it is incorporated in his schedule for that purpose. There is a core set of programs that’s practiced; the programs are developed by the staff based on the data collected on the student and his IEP. (T. 106-109 and 110-111. (Ex. P)

Her program uses the ABA methodology and she believes that ABA methodology is imperative to the student. ABA enables them to create an individualized curriculum and a structure that is effective and appropriate for him; they are able to continually modify the curriculum based on the student’s data and progress. Their data on the child is analyzed so that they can assess the effectiveness of their teaching and tailor their program to meet his specific needs. The teaching staff meets formally once a week and informally in the classrooms daily. The school is which is internationally known for their work with staff meetings are important because the teaching has to be consistent in order for the student to be successful with working with different teachers. The parents and the staff meet on an as needed basis, sometimes they speak on the phone several times during a week. The parents are encouraged to come to the school and staff members go into the home twice a month. (T.113-116)

The school develops goals in conjunction with the teaching staff, the parents and the principal. The staff collects data on the child throughout the day; the raw data is converted into graphic forms. The graphs on any particular task chart the student’s performance. The staff analyzes the performance graphs to determine the effectiveness of the program and to determine if the child needs more practice or if the child has mastered the task. The goals are then expanded and modified based on the analysis of the child’s performance; goals are adjusted throughout the year, as the child progresses. (T.117-119)

The school does not provide related services, however the school does address his related services needs throughout the day programmatically using ABA methodology. The school addressed his his occupational needs by working on his coordination and integration of all of his fine motor activities. Some of the fine motor activities that were incorporated throughout the school day handwriting. His physical therapy needs were addressed by working on his physical and gross motor needs, such as balance and coordination. They worked with him carrying materials and increasing his attention. (T.119-122)

She recalled that came to observe the student before the March, 2013 IEP meeting, that she attended. She believed that he had a very favorable impression of the program. She recalled at the IEP meeting describing the student’s need for an intense student to staff ratio, staff skilled in the principles of ABA and in different teaching methodologies. It was important that the staff be and how to student. The student can exhibit . She shared all of that information at the meeting. (T.125-127)

She stated that on his ability to learn. Some of at when transitioning from a preferred activity to a lesser preferred activity. He has , some of his responses can be because of requires a quiet environment because of the The student requires support to address during the day. She and Ms. Turner did not program would be appropriate for the student. He requires a small student to teacher ratio and lots of intervention.(T. 130-131and at 133) She did not believe that the team gave consideration to continue funding the student at her school. She stated the student has him when working on his of the day. (T.134-136)

On cross-examination, the principal testified that the student’s teacher was certified in special education as was another adult in the student’s class. The remaining two assistants had Masters Degrees. Their admission policies are driven by several factors, first there must be an available seat. The child must have a diagnosis of autism. She must believe that the school is able to address the child’s needs in terms of staffing and grouping. She believed that the parent initially brought his son to her school because the father believed . He did not believe that the methodology and interventions used . (T.138-141 and at 142) ) She discussed his schedule; she noted that time spent on academics was not restricted to the time indicated on the schedule since it was driven by the child’s response on any given day. If the child was working on reading for a while and the task , they will move on to a more to academics. (T. 144-146)

She discussed the group meeting, which she explained varies in size, from four to six. The group meeting focuses . The instructor reads to the group and asks questions. The type of question that she asks is individualized for each student.(T.147-148) She discussed in detail how the child’s related services needs are addressed using an and are incorporated in the program throughout the day. Members of the child’s school team will go into the child’s home twice a month for the primary purpose of making sure skills learned in school are also applied at home; they focus on the generalization of skills. opined that the CSE’s decision to recommend a not in accordance with the information that she and his teacher presented. (T. 152-153; at 156 and at 158)

The mother testified that her son presented with , such he Her years old now; he was old. He months. He received an a hours weekly hour weekly. After a few months, the services were increased to 30 hours to three hours was added. (T.160162)

He transitioned from , to that used the TEACCH methodology. He was not receiving any home services. He ; all of the progress accomplished . She expressed her concerns to the teacher and the principal; they attributed the regression to the change of staff and environment. Next, she went to the Board of Education to express her concerns; she was given an ABA SEIT for 10 hours weekly, approximately four months into the school year. His regression lack of effort to verbalize his needs and wants. Also, in the classroom he would just retreat into his own world and not participate in classroom activities. (T. 162-165) In two weeks, with the SEIT he started to use words again. (T. 163-166)

The following school year, 2012-2013, they placed which has a full time ABA program. The DOE funded the program. She discussed what was said at the IEP meeting, such as his progress, weaknesses and needs. She was surprised by the DOE’s recommendation and she informed them of his regression with the TEACCH methodology. The DOE representative was not able to tell her which school he would be recommended for or what methodology would be used. The DOE did not consider continuation of his current placement. Her son has made progress this school year, his screaming tantrums have pretty much abated, the bolting is under control and he has started to read. Her son requires a . His teacher comes to their home about once a week for one to two hours and she visits his appropriately met his needs. (T.166-169 and 170172)

During cross-examination, the mother testified that approximately 30 to 60 minutes daily of ABA. He received an ABA SEIT for five hours in school; all services were provided in school. Initially, a teacher would come weekly for a few months until matters were under control. She goes to his school twice a month to observe the teacher using ABA and her son’s responses.(T.172-175)

testified that she was the student’s classroom teacher for the 2013-2014 school year, . She holds six New York State certifications in education, including certification as a special education teacher and as a literacy teacher. She has been trained in ABA. She was responsible for developing and implementing a curriculum for each of the seven students in her class. She collected data on each student and graphed it daily. She said the student moved at a good pace in his academic programs. She stated that some of . The teachers must attend to any can occur. There were seven students and six adults in her classroom, four are ABA therapists and one is .. (T. 179-182 and 183-184)

The other five adults in the classroom ; she has Masters of Science in ABA and an undergraduate degree in therapists in the classroom. is also certified as a special education teacher and as a general education teacher. the behavioral consultant. The students ages ranged each student’s curriculum is tailored specifically to his needs. She described his academic skills in the beginning of the year he was starting to expressively and . He was able . Socially he would only respond to greetings from staff and not with peers. ; he did not have a formal behavior plan. He He required a t the day because . (T. 185-188 and 189-191)

All of the staff gets to work with him, the day is broken up into eight sessions, each session is approximately 40 minutes. At the end of each session, each instructor rotates to work with a different student. There is one group session, per day, he with him at all times, to prompt him, . Data is collected on all of his activities and graphed to monitor his progress or lack thereof and to make modifications as needed. When he has made progress, then they will increase the difficulty of the activity. He follows a picture activity schedule which changes every day, not in substance; it changes the time of each activity’s occurrence. The picture schedule helps and cues him to get the necessary materials for the identified activity. (T. 193-196 and 198-200)

Ms. stated that ABA gives the student a lot of structure and keeps him on a schedule. The ABA instruction is differentiated and individualized based on his unique needs. It provides him with one-on-one attention and has a motivational system where he is continuously reinforced throughout the day. The constant collection of data and graphing is a tool that helps the staff to see what is working and what is not working. He has made progress, he is now able to identify letters A through Z and because of that he is was able to advance to a reading program. He has started to write his name and is reading words in a book. He is now able to sit and wait for nine minutes as compared to three minutes in September. He does not require as much one-on-one attention, the instructor is still with him, but instead of being two feet away from him, she is five feet away from him. She believes the student has made individual instruction and support he needed. The school offers a structured, quiet environment to help him to attend. Because of the intensity of the program, the methodology and structure she provided the student with an appropriate special education program to address his specific needs. (T.201-204)

On cross examination, testified that she started working with the student July, 2013 and that she worked on the student’s IEP goals. His binder contains every program that she worked on with the student and the graphs that chart his progress or lack of. The graphs are used to complete a progress report. She is certified; two staff members who work in the classroom are working certification. The school day runs from 8:15 to 2:15. The group session occurs once a day, in the morning. (T.206-209 and at 212) (Exhs. M and N)

The father testified that his ; he loves . He has . are he with making and for understanding. Recently, he has . He has and he The father stated that he attended the March IEP meeting in person; he noted that prior to the meeting he had faxed over to the CSE a copy of a which was briefly discussed at the meeting. They discussed the child’s tantrmuming, his He first became aware of Outcome Summary reports at the meeting. The CSE recommended without any discussion as to what it entailed. (T. 214-217 and 218-220) (Exs. J, 4 and 5)

He informed the CSE that he had visited of them used informed the CSE that his son had been taught using that he regressed substantially. The regression was halted when his son was provided with told that some of the 6:1:1 programs used some

ABA. The goals were not discussed at the meeting. He requested that Dr. give her list of goals to made it very clear that her goals were designed for recalled that Mr. and noted that the child was performing the child required a lot of individual attention. Dr. made it clear that she believed the child needed the structure and high level of individual attention that he was receiving at

Shortly, after receiving the proposed placement, he went to visit the school and then he visited again in September with the intent of seeing the specific class the student would be in. He found the program and placement not appropriate for several reasons. The school was using which clearly had not worked for his son in the past Also, it required his son to do some work independently, which he was not able to do, even at His son needed individualized attention. His son has ; he has a . One of the classrooms he visited had a ; the teacher said they had gotten used to it. The OT/PT room had up to nine therapists who would be working with students in it at the same time. He the classrooms. There was an open fence around the trailers that allowed cars to come and go. and the open fence lead directly into the street. After each visit he wrote to the CSE expressing his concerns in detail; he received no response to his letters. His son for the 2013-2014 school year; the DOE funded . His has improved; his communication skills are better and he is beginning to read. He is an appropriate placement for his son. (T. 230-233; 234-237 and 238-241) (Exs. F and H)

During cross examination, he stated that his was little better than . His son has been ; however, the therapy started late, because of the delay in not aware of a BIP they do with him. The DOE has always funded his son’s He never contacted the CSE regarding the conversation that was overheard by after the IEP meeting had ended. (T.240-241 and 244-245)

FINDINGS OF FACT AND DECISION

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482)2 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22).3 An IEP is a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]).

A FAPE is offered to a student when the board of education (a) complied 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. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must 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]). School districts are of course also required to comply with all IDEA procedures, but not all procedural errors render an IEP legally inadequate (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). 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 to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]).

The Second Circuit has determined that "a school district fulfills it 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, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]); in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379 ; Walczak, 142 F.3d at 132).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, 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 parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra, 427 F.3d at 192). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 37071). "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" (id. at pp. 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The IDEA allows that "a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a [FAPE] available to the child in a timely manner prior to that enrollment"(20 U.S.C. § 1412 [a][10][C][ii])(emphasis added).

I have reviewed all the testimonial and documentary evidence. The parents have alleged that the DOE has failed to provide their son with a FAPE on procedural and substantive grounds. Their primary arguments are that the IEP team was not duly composed, , class size and placement proffered by the DOE are inappropriate and that the DOE has not provided any underlying documentation or testimonial evidence to support ; the record supports their position.

Under IDEA, the CSE must include not less than one special education teacher, said teacher must be the person who is, or will be, responsible for implementing he IEP. (34 C.F.R. Part 300. App’x A, Question 26. See SRO No. 13-165 at 8-9) Here, Ms. Turner was the student’s then current special education teacher at a private school; she was not going to teach in the recommended program and did not believe it to be appropriate. Mr was not a person who was or would be responsible for implementing a portion of the IEP since he had been assigned to the CSE for the past six years and participated in at least 15 CSE meetings weekly. (T. at 63) He testified that he had some supervisory responsibilities in terms of mentoring and coaching teachers and that he had a supervisory role with a . (T. 68-70) However, he was not able to address pertinent questions about and its relevance to the child’s needs . (T. at 219) Moreover, the father testified that Mr. needed a program similar to NYCLI. (T. at 219)

New York regulations require that for students with autism, the CSE shall include provisions for parent training and counseling. (8 NYCRR 200.1(kk); 200.13(d). The IEP is silent as to providing any parent training or counseling.

When performing an annual review of an IEP, a CSE must consider the results of the existing or most recent evaluations or assessments of the child, the strengths of the child, and the academic, developmental, and functional needs of the child, as well as the parents’ concerns for the enhancement of their child’s education. 34 C.F.R. § 300.305, 300.324; 8 NYCRR § 200.4(f)(1). The CSE must “use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information about the child, including information provided by the parent,” and should not rely upon any single measure or assessment. 34 C.F.R. § 300.4.

The CSE’s recommendation of a is contrary to the information and documentation presented at the March, 2013 IEP meeting. observed the child; he reported that the child ; he required frequent prompting to remain on task. (Ex. 4)As noted earlier he was reported as stating that the child required a similar program to NYCLI. (T. at 219) When he observed the student he was in with four professional adults trained which is a stark difference from the and who may have some knowledge and a paraprofessional. Moreover, the parents had provided the CSE with a developmental pediatric report dated February 21, 2013, conducted less than a month prior to the subject IEP review. specifically noted that teaching methodology is “the intervention requires in order to learn.” Also, she noted that the student continues to be quite internally distracted; he requires refocusing and redirecting very frequently. In her recommendations she recommends that he and notes again the student requires methodology. (Ex. J)

The father testified that he informed the CSE of his son’s experience with under that methodology the . The regression was not halted until an ABA SEIT was provided. In addition, his teachers emphasized the child’s need for one on one instruction. (T. 221-

222) It is undisputed that the child presented such and that the child is more available for learning. (T. 130- 131; at 160; at 170 ;at 190 and 202-204) Here, the record is replete with evidence that clearly established that the child required a small class size with high teacher to student ratio in order to provide the intense amount of individual instruction he needed to stay on task and behave. The record further supports the only proven methodology that has been successful in helping the child to advance. All of the professionals who have worked with the child and his parents firmly the required methodology to be used in order for him to succeed academically and behaviorally. Equally clear is that not appropriate. Based on the foregoing, I find that the DOE has failed to meet its burden that it provided the child with a FAPE for the 2013-2014 school year.

The parents have the burden of proving that the program selected by them was appropriate to meet their son’s unique special education needs. In the instant matter, this was a child that presented that constantly impeded his ability to learn provided an intense one on one program guided by the which collectively helped to curtail the child’s disruptive behaviors and made him available for learning. The child’s progress across the board is well documented. (T. 170-171; 202-203 and 240-241) (Exs. M and N) I find that the parents have met the second prong of

With respect to prong three there is nothing in the record to show that the parents were anything other than cooperative. The parents submitted a comprehensive privately obtained pediatric evaluation of their child’s abilities and needs. The father visited the proposed site twice and the parents actively participated in the IEP review; they shared their experience regarding their son’s performance and spoke about their personal survey of . The parents wrote two letters expressing their concerns after visiting the proposed site; both went unanswered. (Exs. F and H) Accordingly, I find that the equities favor the parents.

ORDER

The Department of Education shall fully fund the student’s tuition for the 20132014 school year.

Dated: September 9, 2014

, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request, dated 9/13/13, 5 pages B Final notice of recommendation, dated 6/4/13, 1 page C IEP, dated 6/4/13, 21 pages D Due Process Response dated 10/15/13, 3 pages E Amended Impartial Hearing Request, dated 11/19/13, 7 pages F Parent Letter to CSE with Confirmation dated 6/3/13, 5 pages G Parent Letter to CSE with Confirmation dated 8/22/13, 7 pages H Parent Letter to CSE with Confirmation dated 9/11/13, 5 pages I Draft Classroom Observation, undated (1 page) J Developmental Pediatric Report with cover page and fax confirmation receipt, dated 3/8/13 (4 pages) K , undated (2 pages) L Progress Report, dated 5/24/13 46 47

(12 pages) M Progress Report, dated 10/25/13 (15 pages) N Progress Report, dated 3/10/14 (14 pages) O 2013/2014 Attendance Record (1 page) P 2013/2014 Schedule (2 page) 47 47 Q Affidavit of Payment, dated 4/2/14 (1 page)

DEPARTMENT OF EDUCATION

1 IEP, dated 3/14/13 (19 pages) 2 Progress Report, dated 3/6/13 (2 pages) 3 Educational Evaluation, dated 1/26/13 and 1/28/13 (12 pages) 4 Classroom Observation, dated 3/5/13 (1 page) 5 Form, dated 3/14/13 (5 pages) 6 Progress Report, dated 3/1/13 (2 pages) 7 Final Notice of Recommendation, dated 5/24/13 (1 page) 8 Progress Report, dated 3/1/13 (11 pages)