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: November 18, 2013

December 19, 2013

February 6, 2014

Actual Record Closed Date: April 1, 2014

Hearing Officer: Leah Almeleh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18,

2013

Esq. Attorney — Student

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 9, 2013

Esq. Attorney — Student

Parents

Principal, (via telephone) — Student

Academy (via telephone) — Student

District Representative — DOE

School Psychologist, (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 6, 2014

Esq. Attorney — Student

Teacher (via telephone) — Parents

District Representative — DOE

Procedural Context — DOE

By letter dated September 23, 2013 I was appointed to hear the matter of versus the New York City Department of Education pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). In furtherance thereof, a pendency hearing was held on November 18, 2013 and an Interim Order of Pendency issued November 20, 2013. Thereafter, hearings on the substantive merits were held on December 9, 2013 and February 6, 2014. At this time, the Parties were invited to submit Memoranda of Law and as a result thereof, the timeline was duly extended.

Specifically, the Parents asserts that the Department of Education’s (hereinafter the “Department”) educational placement, as memorialized by the Individualized Education Program (IEP) of May 16, 2013 stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for their child. Exhs. O, 2. Relying upon the rules and principles set forth in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985], they are seeking tuition reimbursement for the 2013-2014 school year in furtherance of a unilateral transfer to (hereinafter “ ”), a non-public school setting. M.S. is “a child with a disability” as that term is defined under the IDEIA, 20 U.S.C. § 1400 et seq., and is classified term is defined by 20 U.S.C. § 1401(a)(1). There is no dispute regarding classification. A list of persons in attendance and of evidence is appended hereto. The Department of Education’s Case testified as lead witness for the Department of Education. She is licensed by New York State as a School Psychologist and is presently employed by the Department at the Committee on Special Education (CSE). As such, her responsibilities include the conduct of psycho-educational evaluations, classroom observations, site visits and CSE meetings. The witness testified that she was familiar with as she had chaired his May and June 2013 CSE meetings, serving as both school psychologist and District representative. Based upon “all data available,” including the classroom observation, psycho-educational assessment, prior recommendations and related service reports, Ms. testified that she recommended a 10 month program in a community school. Tr. at 60-61. In furtherance thereof, she noted child who could function level and would most likely seek a As he was not , she opined that the Department’s placement constituted the least restrictive environment for . Ibid. Nevertheless, the witness indicated that she had approved the receipt of extended year related services in deference to the Parents’ concerns about .’ inability to transition appropriately. Tr. at 61.

Ms. testified that she had a specific recall of ’s CSE convene, adding that “. . . it was a case which stand (sic) out from all other cases. That’s why I remember this case.” Nevertheless, she did not know who had conducted the student’s observation, nor did she know when it had been conducted or even if it had been conducted on the same day as the CSE convene. She denied any concern on the part employees regarding the integrity of the observation and testified that she had no idea why the Parent had participated via telephone, although this was a “legal” option available to parents. Tr. at 62-63, 66. She had no recall of the parent requesting an adjournment of the May 16, 2013 CSE convene, nor did she remember the circumstances leading to the mother’s request to attend in person. Tr. at 67. Similarly, she did not recall whether personnel had joined in the Parent’s request to re-schedule her son’s IEP review. Tr. at 68-69. Although Ms. initially testified that she had relied, in part, upon prior IEPs in formulating the child’s 2013-2014 IEP, she did not know what assessments had been utilized to generate these recommendations. Tr. at 76.

Ultimately, the witness agreed that the Parent had been confused by the Department’s reference to a “community” school as in a subsequent telephone conversation that day, it was clear Ms. . erroneously believed the CSE had generated a recommendation for “ ,” a NYS approved day school in New Jersey.

The witness acknowledged that the Parent thereafter expressed considerable concern about the conduct of the May 16, 2013 CSE and requested re-consideration of its recommendations for a 10 month program in a community school. Tr. at 82-83; Exh. F,

13. Although the parties re-convened, Ms. testified, So the second kind of – it wasn’t really a meeting because there was no new recommendation or anything. We just sit down with the parent . . . and explained to her . . . how it’s going to work differently in high school level.” Tr. at 82-83. She added, “We explained to mom based on the new Chancellor’s regulation every single school can adjust the recommendations based on the child’s needs at the time he is coming to the school.” Tr. at 84. Ultimately, psychologist Barsukova testified that the Parent did not disagree entirely with the Department’s plan and “was willing to try.” Tr. at 84-86. She expressed surprise that the Parent had written a second letter of protest regarding the Department’s May 16, 2013 IEP, asserting that the objections articulated in this letter “did not sound like objections that she made during the IEP meeting.” Tr. at 89; Exhs. I, J. Although the witness testified that she had relied upon the same psycho-educational evaluation as that referenced in the May 2, 2012 IEP, she could not explain how two different Committees would arrive at drastically different recommendations based upon the same materials. In fact, the previous IEP had specifically rejected 12:1+1 programs in both community and specialized schools, noting that these programs had been “considered and rejected because it is can’t (sic) address his needs.” Exh. O at 12. In contrast, the May 16, 2013 IEP recommended a 12:1 class in a community school, absent the previous support of a paraprofessional as well as extended year services. Notwithstanding this, Ms. dismissed the significance of these widely diverging recommendations, observing that “different psychologists can look at a superior IQ and a grade level” and reach different conclusions. Tr. at 98-99. She further noted that, if the IEP did not meet needs, the program could “adjusted” by his new school. Tr. at 104. Beyond this, Ms. opined that 1 hour of SETSS per day along with six hours of related services per week were equivalent to an extended year program.^[1]

Indeed, subsequently acknowledged that she had only seen the child for a few minutes, if at all, prior to developing the functional behavior assessment and behavior intervention plan in the course of the May 16, 2013 convene. The following testimony is cited. HEARING OFFICER : Let me just ask you this. You conducted the functional behavior assessment when? What is the date of that?

MS. It was based on the assessment given to us, but we did it right in the meeting.

HEARING OFFICER Did you see the child?

MS. : I didn't see the—maybe I did see the child. I can't recall him. I didn't do my independent evaluation on this child, but it was-- HEARING OFFICER (Interposing) Did you ever look at the child prior to doing the behavior intervention plan, physically look at him?

MS. : Physically I did look at him. It doesn't mean I did - - . HEARING OFFICER : For what period of time did you look at him?

MS. : So it can be a few minutes - - . HEARING OFFICER So you based your behavior intervention plan on looking at the child for a few minutes, plus of course the other written evaluations?

MS. No, it’s not how it work. It work all providers, including his teacher, counseling, speech pathologist and his administrative director was present and we all together, including parent and myself and my special education teacher, identified the most behavior which is interferes with his academic learning. This how it work. It doesn’t matter how many minutes I look at him. I’m not the one who make all decision. It’s all of the team with me on the meeting. Tr. at 99-101.

Having said this, the witness testified that the IEP could be “adjusted” at M.S.’s new school should the need arise. Tr. at 104-105. The Parents’ Case testified as lead witness on behalf of the Parents. Ms is the Principal of ,a school which specifically serves the needs of children on the autism spectrum as well as other neurobiological disorders. . is a student “I am, I can” program, a program directed at students who are able to manage the standardized New York State regents’ curriculum.

She has known . for two years, observing him in his classroom, during special school events, lunch/recess and within the school in general. She has additionally spoken with his teachers and providers and has reviewed his curriculum portfolio work folders. Tr. at 122. As is a small school whose enrollment falls at approximately 67 children, Ms. testified that she sees the student daily. Tr. at 121. There are eight children in ’s classroom. Although . has many navigating the environment. The student is additionally and may when this occurs. He frequently interchanges, skills and is . Tr. at 114. On other occasions, the child may become fixated upon a classroom issue which precludes him from moving forward with his work. Tr. at 123. As such, she noted profile was consistent with the other students in his classroom and opined that he had been placed appropriately , a class additionally enriched by a full-time paraprofessional and one part-time paraprofessional. Tr. at 143, 145.

In addition to the small, nurturing classroom in which participates, the student additionally receives both push-in and pull-out related services as mandated within his IEP. Exh O. . additionally participates in a Life Skills class which addresses the functional skills inherent within successful community integration and currently receives career development. Tr. at 121. A “quiet room” is used when students experience sensory overload or become physically agitated. When this occurs, intervention is immediately offered by a number of trained providers, including the child’s counselor, social worker, crisis intervention specialist, teacher or even a trained paraprofessional. The School does Behavior Intervention Plan (hereinafter “BIP”) specifically developed for Ms. testified that the student’s behavior has improved has learned to avail himself supports offered by the program. Tr. at 238. Beyond this, the School offers a sensory gym and supervised quiet room equipped with dim lighting, soft music, weighted floor padding and seating pads. The witness noted that this has been particularly helpful to students such who . Tr. at 120.

Although staff is either state certified special educators or certified content area instructors, all professional personnel receive ongoing in-service training in crisis prevention intervention and the Collaborative Problem Solving protocol. At a minimum, professional development is offered several times a year as well as during weekly team meetings. Tr. at 117-118. The School offers one-to-one paraprofessionals that support all of the students in the classroom as well as a full complement of related service providers. Beyond this, parent-teacher conferences are formally scheduled twice a year as an adjunct to the School’s “open door” policy. Although team meetings are technically scheduled on a bi-weekly basis, the intimate nature of the school permits more frequent dialog between personnel and parents. The witness observed, moreover, that students are issued quarterly progress reports and receive standardized testing such as the English Language Arts assessment.

Ms. testified that she participated in two IEP meetings ., one occurring on May 16, 2013 and the second on June 7, 2013. She noted that the Parent had participated via telephone during the May 16, 2013 meeting as . had received incorrect information from the Department as to the meeting’s location. Thereafter, when the Parent attempted to join the others , her car would not start. Tr. at 126-128. Ms. did not know whether the Parent had requested an adjournment, but noted that Ms. . eventually participated via telephone.

With specific reference to the Department’s May 2013 observation, the witness testified, “There was a five minute observation. Jane2, before the CSE started, said, ‘Oh my G-d, I didn’t do an observation,’ and kind of ran out of the room right before it started.” Although personnel expressed some concern about Ms. observation, the CSE meeting proceeded with Ms. in attendance. Tr. at 128-130.

Ms. testified that she absolutely did not agree with Ms. recommendation for a community school, a recommendation the psychologist based upon ’s grade level academics. Tr. at 130-131. Although she wished to continue this discussion, both Ms. and the Department’s general education teacher “didn’t even blink an eye. There was no conversation. That was it. . . . I mean there was no conversation. They made their recommendation and that was that. She did not want to hear anybody’s concerns.” Tr. at 132. Although the remainder of the CSE expressed significant concerns about ability to function in a larger setting, these issues were not addressed. In fact, Ms. testified that Ms. had already informed the witness in April 2013 that the CSE’s custom of referring cases to the CBST would be terminated during the 2013-2014 school year, explaining that the Department “had gone down that road and it doesn’t work.” Tr. at 135. Specifically, the CBST had simply been unable to find placements in prior years when cases had been referred to them by the CSE. Therefore, they would no longer accept referrals.

Ms. Barsukova is additionally known as “Jane.”

Ms. testified that, at the Parent’s request, the CSE reconvened on June 7, 2013. At this time, the Parent participated in person and it was again clear that both the Parent disagreed with the recommendations articulated in the May 16, 2013 IEP. The witness noted that a full complement was present at the June 2013 meeting and that minutes were taken. In fact, Ms. testified that clearly believed they were attending a CSE reconvene, notwithstanding Ms. s view that this was merely a follow-up “meeting” requested by the Parent. Tr. at 151-152. Nevertheless, Ms. proceeded to develop a Functional Behavior Assessment and Behavior Intervention Plan, had developed its own behavioral plan much earlier and had not requested a second. Describing Ms. s behavior as “weird,” the witness noted that, at one point in the proceedings, the Department’s psychologist simply left the meeting and seemed to be having a telephone conversation with another Department of Education employee. Ms. testified that there was no prior discussion as to why Ms. had unilaterally ended her participation in the meeting although it was clear that personnel disagreed with the psychologist’s recommendations. Tr. at 154. Finally, the witness described both academic and social areas of progress for the student. She noted . is better able to self-advocate when he is disturbed in class. He has learned to identify behavioral triggers and apply the strategies he has learned from personnel through Collaborative Problem Solving. As a result, small issues do not escalate into larger behavioral episodes .’s ability to remain within the classroom has increased. This has enabled the student to participate in class more effectively such that he no longer requires a one-to-one paraprofessional and is able to remain on task to finish long-term projects. Tr. at 136-139. She noted that exudes a greater sense of self-confidence and is often proud of his work.

additionally testified on behalf of the Parent. He is a school counselor and has additional certification in Collaborative Problem Solving. The witness has worked with . since September 2010 and has provided both group and individual counseling to the student. Mr. participated in both the May 16, 2013 and June 7, 2013 CSE convenes. Exh. 2 at 14. In addition, Mr. interfaces daily with the student’s teachers and related service providers so that intervention is consistent across all environments. In this manner, he has assisted . with developing coping strategies which include the ability to organize his thoughts when he is stressed, identify behavioral triggers and request a break when needed.

Beyond this, Mr. noted that the problem-solving protocol instituted . in 2013 has made the student more available for reasoning and rationalization. This strategy has clearly decreased the frequency . Tr. at 167-168. The student is additionally prepared before classroom transitions in an effort to maximize his ability to engage appropriately in novel activities and environments. Similarly, with regard to the student’s inappropriate perseveration, Mr. has utilized the techniques of mirroring and drilling as a way of validating the student’s concerns while reinforcing classroom expectations for appropriate behavior. Tr. at 162. Although . was inclined to dismiss school work which is academically challenging for him, the student now exhibits longer on-task performance even when the assignment is difficult. The witness opined that these skills have developed through the use of one-to-one support and the development of trusting, supportive relationships. Tr. at 163-164.

Having addressed the student’s strengths, Mr noted that . continued to require frequent breaks from the classroom when anxious or overwhelmed. The student frequently perseverated inappropriately on irrelevant issues and was easily distracted from his work. continued to require self-advocacy strategies in order to navigate social settings although he was demonstrating emergent insights into his behavior and the impact it has on others. The child’s teacher noted that personnel were often required to validate when stressed. As such, Mr. opined that . continued to require the small, nurturing environment offered . In particular, he noted that the individualized problemsolving techniques offered to . have made him more available for learning as the student is increasingly equipped with the cognitive/emotional ability to reason and rationalize appropriately. As a result, the frequency of has declined. Tr. at 166.

additionally testified on behalf of the Parents. She is certified in general education and has taught M.S math and occasionally social studies . The student is presently one of her math students, along with four others. Beyond this, Ms. interfaces with the child’s related service providers and other school personnel. In furtherance thereof, she noted that the student had been doing well in school. Specifically, he was completing homework assignments, participating more meaningfully in class, required fewer during class and was exhibiting greater on-task behavior. Tr. at 188, 198. She noted that . continued to require support during class, particularly when he was unsure of the . Tr. at 188-190. Similarly, the student when required to take notes off the board or engage in increasingly complex math reasoning involving multiple steps. When this occurs, either employee or seeks from his counselor across the hall. Understanding with large sequences of information, Ms. testified that she specifically breaks up her math problems into many small steps, a process which reduces the intimidation . Among her other instructional techniques, Ms. testified that she utilizes work sheets rather than rely upon the textbook, which she believed could be overwhelming for her students. Students are encouraged to underline and highlight materials so that key concepts are reinforced. Similarly, Ms. testified that she enlarges specific parts of her worksheets on the smartboard in order to underscore and showcase the relevant skills being addressed. the board in order to practice their skills. She noted that she reduced the amount of note-taking necessary for her class and attempted to keep the materials the least language-based possible. Hand-outs are copied for the student and is asked to “fill in” answers in the least “wordy” manner possible. Tr. at 207. There is constant repetition and review and new material is previewed so that students understand what mathematical concept is being addressed. Even with all this support, however, she noted that during a group lesson and lacked insight to recognize that he had not remained on-task. Tr. at 194. Finally, although the student is succeeding socially during lunch periods, the student’s upon his ability to develop satisfying social relationships. Ultimately, she opined that had provided an appropriate educational setting for

On cross-examination, Ms. Spinner testified that had taken the New York State eighth grade math competency exams and would be taking the algebra Regents this year. Although she anticipated that would pass the math Regents examination, nevertheless, she opined that the student continued to require a great deal of support for word problems. She stated, “He gotten – he’s improved so much because now at least, he sits there, looks at it and starts it, where in the past he’s like, I don’t know what to do.” Tr. at 200.

Lastly, Ms. . testified on behalf of her son. The Parent provided a brief history of her son’s education, noting that he had been . With regard to a CSE meeting scheduled on May 16, 2013, Ms. . testified that the Department had sent her an erroneous notice indicating that the meeting was being held in Whitestone. Exh. V. After arriving at the Whitestone location, she subsequently learned that the CSE had convened Although she was advised that the CSE would wait for her to arrive, Ms. S. testified that she was unable to re-start her car. Although requested a postponement, she was advised that this could not be arranged. Instead, upset and distracted about her car and the change of location, was offered a small room with erratic air-conditioning and noise, making it difficult to hear and concentrate. With no options offered, . participated in the CSE meeting via telephone. Tr. at 214-217.

In this setting, the Parent testified that she had no documentation, nor did she know whether the rest of the people participating were provided with any materials. The meeting commenced with Ms. statement that would be placed at a community school, a placement the Parent believed was a non-public setting serving the needs of special education children, including those on , children in New Jersey. Tr. at 218. There was no discussion of an altered recommendation for a ten month school year and the Parent believed the Department was continuing its recommendation for a private placement since this had been their recommendation for years. In fact, Ms. . did not learn that this had not been the Department’s recommendation until Ms. called later that day to clarify. Had the change in programming been clearly articulated during the CSE’s discussions, the Parent testified she would have objected unambiguously. Tr. at 222. By letter dated May 27, 2013, Ms. articulated her objections to a community placement and requested further consideration of the .

On June 16, 2014 the CSE reconvened. Although Ms. acknowledged Ms. dissatisfaction with the CSE’s recommendation, she largely ignored the comments offered and was adamant about retaining the IEP’s changes, indicating the previous futility of referring matters to the CBST. Tr. at 228-232. Shockingly, when Ms. . discussed her concerns about extended year social programming for her son, Ms. stated, “Send him to camp . . . I pay for mine [summer camp]. You pay for yours.” Tr. at 232. Although . has been diagnosed as well as and a appeared to have no recognition of the primacy . On June 17, 2013, the Parent received a Notice of Final Recommendation to which she responded immediately. Exh. J. She again described her concerns about the ten month recommendation and requested assistance in setting up a formal observation of the program. Although she was asked to provide new evaluations, Ms. . indicated that she had already provided whatever assessments she had. Exhs. K, L. The Parent testified that, to date, she has had no response to her letter. The Department of Education’s Position

The Department of Education contends that it has provided the child with a free and appropriate public education (FAPE) which is both substantively and procedurally valid, asserting that its May 16, 2013 IEP and its recommendation for a self-contained class in a community school is appropriate along with related services of pull-out speech/language, counseling and occupational therapy services. Exh. 2. As specifically articulated, the School District asserts that the IDEIA simply requires the School District to provide a FAPE, absent any duty to maximize or optimize the child's educational benefits. Thus, it maintains that compliance with its IDEIA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits. Its duty is simply fulfilled by the implementation a plan “reasonably calculated to confer an educational benefit upon the child.” Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her parents, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998). The Parents’ Position

The Parents assert that the Department of Education stands in abrogation of its duty to provide with a free and appropriate public education. Specifically, counsel maintains that the March 16, 2013 IEP was developed via chairperson fiat, rather than committee consensus. As such, the recommendation is inconsistent with the student’s evaluations, progress reports and opinions as presented by professionals who actually knew

Beyond this, the Parents assert that there are no equitable considerations which militate against their entitlement to an award of reimbursement, noting that they have been active, motivated and cooperative in their relationship with the Department of Education. See U.S.C. § 1414 (d)(1)(A); §1401 et seq.; Board of Education of the County of Kanawha v. Michal M., et al., 95 F.Supp2nd 600 [S.D.W.Va 2000].

Discussion

It is clear that the legislative intent of 20 US Code § l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C.Sx.1400 [d][1][A]; see Ms. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 N.Y.C.R.R. 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].

In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]).

In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199.

Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, 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" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y.

2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]).

Finally, the Courts have addressed the question of whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEIA and subsequently enroll the child in a private school of their choice. The Supreme Court has established a three-pronged test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy. Florence County School District Four v. Carter by Carter, S.Ct. 361 (1993). Point I: Pursuant to School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985], an Appropriate School for during the 2012-2013 school year? Do the procedural infirmities associated with the May 16, 2013 IEP render the document substantively invalid? Is the May 16, 2013 IEP reasonably calculated to offer a meaningful educational benefit?

I find, ab initio, that the testimony of Ms. acked all credibility and was utterly unpersuasive. Although the Department’s witness claimed to have a specific recollection of and the circumstances surrounding his CSE convene, she had a virtual amnesic response to any question which might elicit an unfavorable response for the Department. For example, she initially testified that she had no idea who had conducted the student’s observation and specifically denied that it had been her. Tr. at 62-63. She then testified that she had “used” the observation, but did not know when or who had conducted it. As her testimony developed, however, it was clear that Ms. herself, had performed the observation, minutes before the child’s CSE meeting upon realizing that she had forgotten to conduct this assessment. Tr. at 128-130. Indeed, when queried as to whether she had ever physically looked at M.S. prior to developing her functional behavior assessment, Ms. initially denied ever seeing the child, later amending her response to reflect an observation of a “few minutes.” Tr. at 99-101.

A. The Conduct of the May 16, 2013 and June 7, 2013 CSE convenes It should further be noted that, with the exception of Ms. everyone present at the June 2013 meeting was fully aware that they were participating in a CSE convene. Ms. s description of the proceedings as little more than a casual meeting in which she sat down with the Parent to explain the IEP’s recommendations strains credulity. In fact, a full panel of providers was present on behalf as was a general education teacher on behalf of the Department. The meeting had been requested by the Parent based upon her objections to the May 16, 2013 IEP and the manner in which it had been developed. Tr. at 83. Minutes were taken and a list of evaluations denominated. Exh. 13 at 2. The evidence does not reflect any documentation or correspondence which suggests in any way that the June 7, 2013 proceedings were anything other than a CSE meeting which would generate a finalized IEP. The fact that Ms. refused to discuss any new recommendations and simply reiterated her “one size fits all” recommendation did not render this any less of a CSE meeting.

Incredibly, the witness denied any recollection of s objections to her recommendations during both CSE convenes. Similarly, psychologist claimed to be unaware of Ms. ’s objections, even after the Parent’s initial confusion regarding placement in “a” community school,” rather than “The Community School” was resolved. When queried as to why the Parent had not attended the May 16, 2013 CSE meeting in person, Ms. stated, “Maybe you should ask her.” Tr. at 66. In fact, the CSE had specifically rejected the Parent’s request to re-schedule the CSE proceedings as the whole team had already assembled . Tr. at 214-217. Ms. declined the Parent’s request to adjourn the proceedings, indicating that a telephone appearance was “a legal thing.” Tr. at

66. While acknowledging that Parents can either choose to participate by phone or be present, Ms. neglected the operant word - “choose.” Clearly, this was not explained to the Parent who was already distracted and upset because (1) she had been provided with the wrong meeting address and, as a result, was running late; (2) her car had broken down in the CSE parking lot and (3) she was placed in a small room in which the acoustics rendered her telephone participation inadequate and physically uncomfortable.

Finally, Ms. s description of the proceedings as a collaborative event in which everyone concurred is totally at odds with the testimony. Indeed, it is clear that the only individuals with any direct knowledge of the student were opposed to the CSE’s unilateral change in placement, but were largely prevented from discussing their concerns. No one, other than psychologist agreed with the Department’s recommendation. 3 While the general education teacher participating on behalf of the Department had never met the child, psychologist finally admitted she only had seen for three to four minutes. Nevertheless, Ms. claimed that her lack of familiarity was irrelevant as she relied upon the input . This is simply ludicrous as Ms. credibly testified that, been offered a meaningful opportunity to share their opinions and suggestions, no one would have concurred with the multiple programmatic changes dictated by psychologist

B. Transition Planning pursuant to NYCRR 200.4[d][2][viii]).

Among the purposes of the IDEA is the preparation of students with disabilities for employment and independent living (34 C.F.R. § 300.1[a]). To the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later educational experiences and for post-school activities, including formal education, if appropriate, employment, and independent living (34 C.F.R. Part 300, Appendix A, Part III; See also 34 C.F.R. Part 300, Appendix A, Part III, Question Nos. 11-13). Consistent with this, the IDEA regulations set forth-specific

The Department’s general education teacher Lu-Berio did not testify. requirements related to transition planning and transition services (id.). For students 14 years of age and older, the IEP must include a statement of the student's transition service needs in the applicable portions of the IEP (34 C.F.R. § 300.347[b][1]; 8 NYCRR 200.4[d][2][viii]). For students 15 years of age and older, it must include a statement of the student's needs, taking into account the student's preferences and interests as they relate to transition from school to post-school activities including post-secondary education, vocational training, integrated competitive employment, continuing and adult education, adult services, independent living, or community participation (8 NYCRR 200.4[d][2][i][c], 200.1[fff]). For such students, the IEP is also required to include a statement of needed transition services, including, if appropriate, a statement of the interagency responsibilities or any needed linkages with other service providers (34 C.F.R. 300.347[b][2]; see also 8 NYCRR 200.4[d][2][ix]), as well as a statement of the student's projected post-school outcomes, based on his or her needs, preferences, and interests, in the areas of employment, post-secondary education and community living (8 NYCRR 200.4[d][2][ix]); Application of the Bd. of Educ., Appeal No. 05-015; Application of a Child with a Disability, Appeal No. 04-112).

In the matter at bar, the proceedings were further compromised by the lack of a transition plan pursuant to 8 NYCRR 200.4 (4)(d)(2)(iii). In furtherance thereof, I note that the IEP includes no post-secondary goals, measurable or otherwise. Although a comprehensive transition plan was, in fact, developed , the IEP includes no reference to this and there is no evidence to suggest a transition plan was ever discussed. Exhs.2, JJ. Similarly, there is no attempt to identify any post-secondary agency such as Acces-VR or OPWDD or any discussion of the student’s long-term living arrangements. Given the nature , every day in which he is not constructively planning for his future is a missed opportunity - all in violation of 8 NYCRR 200.4(d)(2)(ix). Consistent with the lack of a transition plan, I further note that there are no vocational or life skills assessments.

C. Transition Services pursuant to 8 NYCRR 200.4(4)(d)(2)(iii) Similarly, the IEP is silent regarding the implementation of transition services, those strategies and supports which would facilitate move from an extended year classroom within a small non-integrated special education school, to a 12:1, ten month program in a large mainstream public school. Again, given .’s classification of autism, the failure to articulate a specific and individualized transition plan is inconsistent with the Department’s mandate pursuant to 8 NYCRR 200.13(a)(6). Although M.S. would have a dedicated paraprofessional, the broad language calling for “the support of a counselor” offers no specifics, strategies, goals or timelines. Rather it is little more than conclusory language meant to fulfill an administrative requirement, absent any explicit direction or substance.

D. Was an appropriate FBA and BIP developed for Are the student’s goals meaningful?

The IDEIA requires that, in developing an IEP for "a child whose behavior impedes [his other] learning," the school district must "consider the use of positive behavioral interventions . . . to address that behavior.'" 20 U.S.C. § 1414(d)(3)(B)(i); see also A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]. This mandate is essentially the springboard for 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 N.Y. Comp. Codes R. & Regs. Tit. 8, § 200.22(a)-(b). I note that the BIP makes no provision for the establishment of appropriate and specific replacement behaviors or strategies. Assuming, that did , I do not believe the IEP reflects meaningful and individualized strategies for addressing these management issues. Clearly, the BIP offered by the Department does not offer any methodology, response definition or criteria. There is no provision for quantifiable accountability nor does it reference any particular strategies, antecedents or behavioral consequences. There is no baseline data nor is there any meaningful response or mastery criterion. As such, it is little more than a reactive process which focuses exclusively upon the physical expression of without any clear intervention aimed at eliminating these maladaptive behaviors before they occur. In the absence of any meaningful response criteria, it is essentially a conclusory statement about improving negative behaviors absent any specifics. As such, I find that the BIP developed by psychologist inconsistent with the 8 NYCRR 200.22(b)(4). Exhs. 11, 12. Similarly, an FBA based upon a 3-4 minute observation cannot possibly capture an understanding of the motivations underlying This is true, notwithstanding Ms. s ” that the IEP and its supporting documentation were developed in collaboration with the CSE team. Finally, while .’s evaluations reference a range of , I find that the IEP goals are expressed so generically as to lack any substantive meaning. There is no provision for quantification for either short term objectives or annual goals. In fact, the goals are largely written in boiler-plate fashion, absent grade levels. Under these circumstances, any suggestion of accountability is illusory.

E. Were the recommendations articulated in May 16, 2013 IEP improperly predetermined?

It is clear that Ms. had her own agenda in which students would no longer be referred to the CBST, a new protocol Ms. had discussed previously with Ms. in April 2013. Tr. at 135. Ms. clearly testified that, notwithstanding her efforts to re-focus the CSE’s discussions on the inappropriateness of a ten month community placement, the Department’s representatives steam-rolled through the presentation. Ms. stated, they “. . . didn’t even blink an eye. There was no conversation. She did not want to hear anyone’s concerns.” Tr. at 132. Indeed, Ms. described Ms. subsequent behavior at the June 7, 2013 CSE as “weird,” noting that, at one point, the psychologist simply left the room and unilaterally terminated the meeting. Tr. at 154.

Predetermination by a CSE of a child’s IEP amounts to a procedural violation of the IDEA ( J.G. and N.G. v. Kiryas Joel Union Free School District, 777 F. Supp. 2d 606, 648 [quoting Nack ex Rel. Nack v. Orange County Sch. Dist., 454 F.3d 604, 610 (6th Cir.

200) and Deal v. Hamilton County Bd. Of Ed., 392 F. 3d, 840, 857 (6 Cir. 2004)). In furtherance thereof, it should be noted that, “A key factor with regard to predetermination is whether the district has "an open mind as to the content of [the student's] IEP" (T.P., 554 F.3d at 253; see D.D-S., 2011 WL 3919040, at *10-*11; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [S.D.N.Y. 2009], aff'd, 2010 WL 565659 [2d Cir. Feb. 18, 2010]), as cited in Appeal of XXX, No. 13-183.

In Deal, supra, the Court held that an unofficial policy precluding the use of 1:1 paraprofessionals constituted an improper form of predetermination. Such predetermination amounted to a procedural violation of the Parents’ rights since it effectively deprived them of meaningful participation in the IEP process. Exh. A at 6. In the matter, sub judice, regardless of the student’s needs and the effectiveness of the community placement, the Parents were prevented from exploring a referral to the CBST and discussing alternative programming. In fact, the failure to discuss this component of the special education continuum deprived the Parents’ of their due process right to consider all reasonable educational options for their child. This was especially true as the Department had previously placed . in extended year private placements for years.

Ultimately, the Department’s inability to place children into educational programming through the CBST and the CBST’s refusal to accept these referrals, as per psychologist created the wholesale elimination of this option on the educational continuum. As a result, . was pigeon-holed into the Department’s ten month community program, whether or not it would be appropriate. In this manner, the CSE’s refusal to consider a referral to the CBST precluded all discussion of non-public school options and, for this reason, Ms. found it unnecessary to conduct any detailed discussion of the merits of her recommendation.

.’s primary disability reflects an inability to behave appropriately within both instructional and social settings. While he is cognitively intact, the extent to which the student’s ability to function appropriately within the classroom must be supported through counseling, behavioral intervention plans, functional assessments and social programming - is enormous. It is clear that Ms. upon academic abilities with little understanding of the psycho-social interventions implemented on an on-going and near constant basis. Given .’s need for frequent , classroom breaks, and “in the moment” counseling, it is unclear how any of this will be managed within a community placement, even with the assistance of a paraprofessional. Indeed, Ms. did not address this in her testimony, but simply deferred any problems to the student’s new school which could make “adjustments,” if necessary. In fact, this attitude militates against the integrity of the IEP. As the legal document upon which the Parent relies in order to ensure that services will be provided, the Courts have been more than clear in terms of prohibiting prospective evidence regarding what a District may offer to a child in the future. (R.E., R.E., M.E. et al v. NYC. Dep’t of Educ., 2nd Cir., Dkts nos., 11-1266-cv, 11-1474-cv, 11-655cv (Sept. 20, 2012).^[4] In furtherance thereof, the Court has clearly stated that, “[T]testimony regarding state-offered services may only explain or justify what is listed in the written IEP. Testimony may not support a modification that is materially different from the IEP, and thus a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP."

Here, the hearing record does not reflect the presence of any meaningful participation on the part of either the Parent personnel. Although Ms. remarks were scattered with IDEA verbiage, her persistently disingenuous testimony established a credibility gap beyond repair. As such, I do not believe there was any collaborative decision-making at either the May 16, 2013 or June 7, 2013 CSEs. For example, although objected to the larger setting of a community placement and wished to continue this discussion, neither Ms. nor the Department’s general education teacher would engage in any discussion. Ms. s testimony that, “they didn’t even blink an eye. There was no conversation. That was it. . . . I mean there was no conversation. They made their recommendation and that was that. She did not want to hear anybody’s concerns.” Tr. at 132. In fact, Ms. ’s abrupt and unilateral termination of the June 2013 proceedings was not “weird,” as described by Ms. Rather, Ms had already made up her mind and there was no point in deliberating further. Given this scenario, there is no basis to conclude that any deliberation at all occurred.

F. Do the educational recommendations articulated within the IEP of May 16, 2013 accurately reflect the contents of the student’s evaluations?

As a legal matter, the Southern District of New York has held that if reports and assessments produced by or relied upon by the School District are not sufficiently accurate and complete for the purposes of designing a child’s IEP, the responsibility for the deficiency lies with the school district, not the parents. (A.D. v. New York City Department of Education, 690 F. Supp. 2nd 193 at 208 [SDNY 2010]). Educational law requires that a district (1) ensure that adequate evaluative information has been obtained with regard to the student’s areas of need, (2) consider any other information provided by the parents including private evaluations, and (3) recommend an IEP that was reasonably calculated to enable the student to receive educational benefits in the least restrictive environment. (20 U.S.C. Sect. 1412[a][5][A], 1414[b][2][A]; 34 C.F.R. Sect. 300.114]a][2][i], 300.116[a][2], 300.304[b][1][ii]; see Rowley, 458 U.S. at 192; Newington, 546 F.3d at 114; Gagliardi, 489 F.3d at 108; Mrs. B, 103 F.3d at 1120; M.H., 2011 WL 609880, at *10; see also Letter to Clarke, 48 IDELR 77 [OSEP 2007]; 8 NYCRR 200.1[cc], 200.6[a][1]).

Other than her conclusion that the Department offered no basis, testimonial or documentary, to support the implementation of a truncated ten month school year. Although related services were verbally offered to the Parent as a means of bridging the two month educational gap over the summer, the Final Notice of Recommendation does not address the provision of summer services at all in contrast with the recommendation articulated in the June 7, 2013 minutes and the absence of any provisions in the May 16, 2013 IEP. Cf Exhs. 5 at 1; 13 at 2; 2 at 9. offered no testimony regarding the absence of and clearly based her decision upon the fact that the proposed community school, by definition, would not offer an extended year program. I note, additionally, that there is no designation regarding push-in versus pull-out services, a particularly important concern for a child who experiences difficult transitions. Finally, a review of the child’s assessments indicates that and guidance from his teachers and staff” to function appropriately within the classroom. Exh. CC at 1. He requires “close supervision” for transitions and has difficulty navigating the hallways appropriately. He is and of May 1, 2013, within social contexts, misperceiving social cues and lacking insight into his own behavior. Exh. CC, passim. The student is easily distracted, poorly organized and frequently “unavailable” to work due to behavioral issues. In view of the above, the Department has not met its burden of establishing how . will function in a community placement, let alone large mainstream classes for subjects other than English and Math. Given all of the evaluations, it is simply not credible that the child’s needs would vacillate so greatly within the space of one year such that, after years in a non-public school placement, a community placement in a large public high school would now become appropriate. In fact, the evaluation of D.O., specifically states, “I honestly cannot imagine that anyone who knows anything about this child would send him there. The mere size of the institution will overwhelm him and he will be a magnet for bullying.” Exh. Z at 1.

While both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93). Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

At a minimum, under the circumstances at bar, I find that the cumulative impact of the procedural infirmities in this matter substantively compromised the student’s right to FAPE. Specifically, the failure to grant Ms. .’s request for an adjournment compromised her ability to participate in a meaningful way. Given the sub-optimal conditions in which the Parent was , had difficulty hearing the speaker phone and was provided with no documentation, the Parent’s confusion regarding Ms. “community school” recommendation underscores the lack of integrity in which these proceedings took place. It should be noted that it is incumbent, under the IDEIA, for the CSE to act in a proactive manner to insure the parents’ rights to a fair hearing. In the matter, sub judice, this simply did not take place. Even beyond this, however, the CSE proceedings reflect a large constellation of due process violations. These include the failure to include a transition plan, transition services, or vocational evaluations. In addition, I find that the IEP’s recommendations were improperly pre-determined while the BIP and FBA were little more than perfunctory and generic efforts which did not reflect the needs of Most significantly, the credibility gap established by Ms. irreparably damaged the validity of any Departmental claim it may have had. In view of the above, I find that the Department failed to offer M.S. a FAPE. Point II: Pursuant to School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985], was Gersh an Appropriate School for . during the 2012-2013 school year?

The Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a Parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the Parents' placement…'" (Gagliardi, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir.2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the Parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardi, 489 F.3d at 112). While evidence of progress at a private school is relevant, it Department of Educations not itself establish that a private placement is appropriate (Gagliardi, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school Department of Educations not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardi, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, Parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardi, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]).

Turning to the matter at bar, the evidence indicates that is a year old child who currently attends is a small school whose enrollment is comprised of fewer than seventy children. receives instruction as one of eight children in his class who share a similar behavioral and social-emotional profile. In this context, witnesses testified that programming offers a small, nurturing environment which meets the specific needs of children who fall within the autism spectrum.

I find, at the outset, that the program offered correlates well with the student’s functional needs, as identified by credible witnesses. with . He is in a classroom whose students span a two to three year range, enabling him to serve as a peer model and to learn from others. Both the Parent and ’s teacher uniformly agreed that the child is making meaningful progress within the . In terms of counselor additionally noted that the student is making significant progress and curriculum are based upon empirical research and its personnel are experienced with autism. receive on-going training in various educational methods, including the collaborative problem solving protocol which has been particularly helpful to and related service providers are all certified. Counselor Leonardo is additionally certified in the Collaborative Problem solving protocol.

The child’s teacher and principal both . The child additionally struggles with developing positive social relationships. He often misperceives the intentions and motivations of others and may perseverate over past wrongs and perceived injustices. Although M.S. is highly motivated to succeed, he becomes anxious when completing assignments and exhibits a great deal of off-task and dysfunctional behavior. When disappointed by the results of his efforts, . may . On other occasions, he may simply “shut down.” At these times, may be escorted to the School’s safe room in order to regain his composure, collect his thoughts and reframe the incident in a more constructive light. Crisis intervention is available and provided by individuals trained and certified in these techniques. The record indicates that . requires a multi-sensory approach to learning. Mr. and Ms. both testified that the student benefits from frequent repetition and reinforcement of new skills. Whenever possible, visual and tactile materials are incorporated in the student’s curriculum. Material is broken down into small, manageable components which are more easily mastered. In this manner, students can move forward success through mastery. The student has benefitted significantly from the instructional modifications articulated by Ms. who opined that . would pass his math regents this year.

Witnesses testified that the School’s use of resource room, its emphasis on study skills and the daily wrap-ups further facilitate ability to organize homework assignments and to understand what is required. The student is given extra time to complete school work when necessary, and is additionally supported with visual and verbal reminders during transitions. The use of a homework blog and graphic organizers further reduce the anxiety experienced by the student as there is a “back-up” if assignments are written incorrectly. Notwithstanding this, continues to require a great deal of and intervention, both educationally and in terms of his ability to function appropriately within the classroom.

uniformly testified that the School’s use of collaborative problem solving protocol has been effective with the student. Intervention is offered in the form of roleplaying, social modeling, mirroring and brain-storming throughout the day so that feels as much part of the solution as the problem. Proactive techniques are frequently implemented, particularly where transitions and behavioral flexibility are required. Ultimately, no one testified that could succeed without the constant repetition and reinforcement of an extended school year. In furtherance thereof, uniformly testified that their school was an appropriate environment which could meet academic and behavioral needs. Given all of the above, I find that was an appropriate placement during the 2013-2014 school year. Point III: Is the Parent entitled to equitable relief pursuant to Burlington, supra, for the 2012-2013 school year?

Prong three of Burlington, supra, provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that 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 a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

The record does not indicate any equitable factors which militate against an award of reimbursement. It is clear that the Parents’ concerns about M.S.’s program have been articulated repeatedly. The Parents have attended whatever CSE meetings were scheduled, shared evaluations and observed the placements offered by the Department as soon as school was open. Under these circumstances, there is no reason to believe the Parents have not met their equitable obligations. Conclusion The Parent’s request is granted. Wherefore, it is hereby ordered that: Within sixty (60) days of the date of this Order and upon submission of affidavits from memorializing the child’s attendance records and all outstanding tuition amounts owed for the 2013-2014 school year, the Department shall make direct payment to for Students on the , in the amount of $76, 000.00

Dated: April 2, 2014 Leah Almeleh mv

LEAH ALMELEH, ESQ. LA;mv 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 Hearing request, 9/23/13, 18 pages B Application regarding pendency, 11/12/13, 27 pages C E-mail correspondence, 11/5/13, 11/6/13 D DOE notice of resolution meeting 10/10/13, 3 pages E Resolution waiver, 10/10/13, 3 pages F Letter to , 5 pages G Letter to , 6/7/13, 5 pages H Letter from , 6/11/13, 1 page I Letter to , 6/17/13, 3 pages J Letter to , 6/17/13, 5 pages K Letter from , 6/17/13, 1 page L Letter to , 6/26/13, 3 pages M Letter to , 8/17/13, 4 pages N Letter to , 8/27/13, 5 pages O IEP, 5/2/12, 14 pages P IEP, 5/26/11, 54 pages Q Parental guarantee of tuition, 7/1/13, 2 pages R Tax return 1040 form, 2012, 2 pages S Affidavit and attendance report, 7/25/13, 2 pages T Weekly schedule, 2013/2014, 1 page U Canceled check #4059, 9/23/13, 1 page V Scheduling letter, 5/2/13, 2 pages W Signed consent form, 1/11/13, 2 pages X Scheduling letter, 5/29/13, 2 pages Y HIPAA form and request for Transportation accommodations 6/1/13, 3 pages Z Letter from psychiatrist, 7/1/13, 1 page AA Final report card, 2012/13, 7 pages BB progress report, 8/13/13, 9 pages CC Academic annual review, 5/1/13, 4 pages DD BIP, 3/4/13, 2 pages EE FBA, 3/4/13, 1 page FF Social-emotional progress report, 4/26/13, 2 pages GG Speech progress report, 4/29/13, 3 pages HH OT progress report, 5/7/13, 3 pages II Omitted - JJ Transition annual review, 4/28/13, 3 pages KK Report card, 4/11/13, 7 pages LL Report card, 1/22/13, 7 pages MM Report card, 1/15/12, 5 pages NN Summer progress report, 8/17/12, 10 pages OO Fourth quarter progress report and Report card, 6/25/12, 18 pages PP Progress report and report card, November 2013, 7 pages

DEPARTMENT OF EDUCATION

2 IEP, 5/16/13, 14 pages 3 Notice of IEP meeting, 5/16/13, 4 pages 4 Notice of IEP meeting, 5/2/12, 4 pages 5 FNR, 6/11/13, 1 page 6 CSE minutes, 5/2/13, 3 pages 7 Classroom observation, May 2013 1 page 8 Academic annual review, 5/13/13, 2 pages 9 OT annual review, 5/7/13, 3 pages 10 Health info for busing, 6/1/13, 3 pages 11 FBA, 6/7/13, 1 page 12 BIP, 6/7/13, 1 page 13 CSE minutes, 5/16/13, 2 pages 14 evaluation, 4/30/12, 5 pages 15 Memorandum, 11/27/12, 1 page 16 Letter from , 6/10/12, 1 page 17 Letter from , 10/1/12 18 letter, 6/4/12, 1 page 19 letter, 5/25/12, 1 page 20 Summit School letter, 5/16/12, 1 page 21 letter, 5/7/12, 1 page

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Footnotes

[1] In fact, Ms incorrectly testified that the child would receive only one hour of SETSS per day. The IEP mandates two hours daily. Exh. 2.

[4] http://www.ca2.uscourts.gov/decisions/isysquery/4b2a5018-cb90-4054-a841-c2ec37f8b79e/1/doc/11- 1266_11-1474_11-655_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4b2a5018-cb90- 4054-a841-c2ec37f8b79e/1/hilite/