New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND ORDER

Case Number: NYS Case Identifier Number: N/A Student’s Name:

Date of Birth:

District: Hearing Requested by: Parent Date of Hearing: 1/8/14

4/24/14

4/25/14 Record Close: 5/23/13 Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 8, 2014

Attorney — Student

Attorney — Student

Parents

DOE Attorney — DOE

School Psychologist (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 24, 2014

Attorney — Student

Attorney — Student

Parents

Head teacher, (Via Telephone) — Student

Program Director, — Student

Department of Education Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 25, 2014

Attorney — Student

Attorney — Student

Parents

OT (Via Telephone) — Student

Special Ed Teacher (Via Telephone) — Student

— Student

OT (Via Telephone) — Student

Program Director (Via Telephone) — Student

Attorney — DOE

School psychologist (Via Telephone) — DOE

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

student classified as a child and recommended for a program with related services of ), , and a management paraprofessional (para) and placement His parent, or parent) contested the program as not providing HS with a free appropriate public education (FAPE) and placed him at ). She requested direct payment of tuition the 2012-2013 and 2013-2014 school years, including payment for a paraprofessional.

The initial hearing request was made on May 30, 2013; I was appointed on July 2, 2013, following recusal by other hearing officer(s). An amended due process complaint notice was accepted on September 17, 2013. The hearing convened on January 8, 2014, April 24, 2014, and April 25, 2014. Extensions were requested and entered in the record as IHO Ex. V. The record closed upon receipt of transcripts and post-hearing briefs and accompanying materials on May 23, 2014. Minor transcript corrections are appended to this decision.

DISTRICT CASE

The district conceded that it had not provided a FAPE for the 2013-2014 school year, and its case focused on offering evidence that that it had provided a FAPE for HS in the 20122013 school year. Its single witness , a licensed school psychologist, with permanent state certification in that title.

Dr testified about the IEP meeting on February 8, 2012 held for HS for the 2012-2013 school year, in which he served as the district representative. He stated that the committee had available the previous IEP for the student, as well as an interdisciplinary progress report from the , and a psychological report that was provided by the parent at the end of the meeting. He described the school’s interdisciplinary report as comprehensive, including written summaries from the child’s teacher and service providers, and with the added active participation of the student’s teacher and parent at the meeting, stated that there was a wealth of information available to the committee. The recommendation was for a special class in a specialized public school, with ratio and related services. Dr. stated that the committee had sufficient information to make the recommendation it did. Asked about the development of goals, he cited the school’s report and said that based on the discussion of specific goals being worked on at the time, goals were crafted for the IEP. Tr. 35-41; 100-103; Ex. 3. He also identified a functional behavioral assessment and behavioral intervention plan, which he stated were discussed at the IEP meeting and part of the IEP. Tr. 106-109. He identified minutes that were prepared by a social worker on the committee. Tr. 44-45; Ex. 2. He testified at length about his general practice during meetings, describing what he called a “collaborative conversation” with participants and the parent. He testified that he followed the same practice in every meeting he participated in that year. Tr. 45-54.

Asked whether advance notice was parents that the committee intended to conduct a functional behavior assessment, he explained that it occurred as part of the conversation at the meeting, because it was then that they were given the information . He did not recall specifics of the discussion, but stated that consideration of the paraprofessional would have been based on discussion of a functional behavior assessment, noting that the SESIS system would not allow a paraprofessional on IEP without a functional behavior assessment being created. Dr. stated that the behavior plan was developed during the meeting, and there plan for , which doesn’t do formal behavior plans. He testified was based on the report of the teacher and the parents at the meeting. He stated that what was reported by the teacher was frequency and duration and intensity of the behaviors as variable, with no identified predictable schedule of their occurrence. included , behaviors in terms targeted, and acknowledged that the functional behavior assessment did not specifically enumerate them. Nor did it indicate what happens as an immediate result when . The document didn’t state interventions in the section where it should, but he recalled that the interventions that were reported were the same that had previously been recommended and in place , the functional behavior assessment included the function of the behavior, specifying “ ” indicated on the document. Tr. 138-140, 145-154, 543-544. He stated that the behavior intervention plan did not include strategies to address HS’s behaviors, which would be located in “the context of the IEP and the functional behavior assessment.” Dr. mentioned specifically the paraprofessional, and sensory and movement breaks, and acknowledged that the IEP did not indicate how often he would be provided or movement breaks. He acknowledged that the IEP had a box checked indicating did not have a behavioral intervention plan, and explained that the box was part of the pre-populated data on the IEP. He stated that at that time, there were glitches in the system at the time (since resolved), and there was nothing that would have caused a checkmark or anything other than “no” to appear in that box. Tr. 160-163. He acknowledged that a functional behavior assessment should include a baseline of behaviors, if one exists and one can be determined, and stated that there was no specific requirements of an observation, as observational information was available from the classroom teacher who had regular opportunity to observe the child’s behavior. Tr. 181-182.

He also acknowledged discrepancies between the minutes of the meeting and the IEP’s recording of physical therapy and occupational therapy recommendations, suggesting a clerical error when the related service information was entered into the IEP. He acknowledged that the Rebecca School report indicated HS was receiving physical therapy in one 30 minute session per week, and the IEP stated five times per week in 40 minutes sessions; the minutes of the meeting provided that physical therapy was recommended for three times per week in 40 minutes sessions. Similarly, the IEP indicated occupational therapy three times a week in 40 minutes sessions, while the minutes provided occupational therapy five times per week. He stated that what was reflected in the meeting minutes would be the accurate amount. Tr. 165-174. There was no specific speech and language evaluation or occupational therapy evaluation, nor was there an occupational therapist or . He testified that he did not recall if a classroom observation of the student was available. Tr. 176-180. Dr. conceded that the section for transition needs for HS was left blank on the IEP, which did not include a coordinated set of transition activities as it should have. He also agreed that the IEP did not make any recommendation for parent training and counseling. Tr. 183-185.

He stated that the recommendation was based on the description of in cognitive functioning, academic functioning, social emotional development, and discussions at the meeting which led to the conclusion that he would benefit from a full-time, structured, specialized special education program that can provide services on a 12-month school year basis. He noted the 6:1:1 program as a program developed by the DOE to assist students in developing skills in those areas, believed to be an appropriate program recommendation. He noted the recommendation for a full-time paraprofessional as based on reports of behaviors disruptive to his education. Tr. 111-

113. Asked issues constitute a primary need for him, Dr. stated that he didn’t think they would necessarily “trump” his academic needs or his needs for Tr. 511.

Dr. was questioned at great length about the process used to finalize the IEP in the DOE’s SESIS system and forward the IEP to the parent. He testified that he believed the IEP was finalized in May 2012, stating that he recalled looking in the SESIS event log and seeing a May date. He testified that he could not tell from the log when the IEP was first created, but it would have been created on February 8, 2012. He acknowledged there was no one typing information into SESIS during the IEP meeting, and explained that a template is used to “prepopulate” the document with the student’s demographic information, and that is what he meant by a draft document initially created in the SESIS system; it could be typed up at any time after that point. The event log on May 25th 2012 was entered under his name. He was unable to recall entering the information or any additional specifics of the meeting, held more than two years before, but explained a process whereby the IEP finalized in the SESIS system meant that it was mailed to the parent. He described a practice of printing out a hard copy of the document, addressing an envelope to the parent, placing the IEP in the envelope, and bringing it to the mailroom to mail it out. The mail clerk will put postage on it and bring it to the post office. He stated that he had no reason to believe he did not follow this practice with respect to this IEP. Tr. 63-68, 77--99; Ex. 4. He acknowledged that the SESIS program was new at the time, and had started phasing in in the winter of 2011-2012. Asked whether he recalled telling the parent that it would take longer to receive the IEP, Dr. that he might have told the parent that because of “transitioning to a new system, you know, there was always a learning curve and things.” Tr. 123-126. He explained that SESIS notes when a letter is sent, but as the IEP is not a letter, it did not record the sending at that time. Tr. 189.

On cross-examination, Dr. was asked about the team at the February 8, 2012 meeting. He identified a DOE special education teacher, and stated he was not aware of whether she had ever provided services worker, whom he did not believe had provided any services ; and a parent member, stating he was not aware if she had any personal knowledge of . He acknowledged the participation by telephone, and testified that he couldn’t say the extent of her personal knowledge but his understanding was at the time of the meeting she had teacher that school. He agreed that she provided a substantial amount information in the development of the IEP, and when asked if he relied on that information, he stated that “we relied on all the information that we shared at the meeting, so I would say yes.” Tr. 534-538. He did not recall any contact with the parent after the IEP meeting. Tr. 531-532.

PARENT CASE

There were several witnesses for the parent, who described HS and his education in detail. Appearing from , Program Director, , his head teacher in the 2012-2013 school year, and Andraya Guttzeit, his teacher in the 2013-2014 school year. Also testifying , who provided OT services in the in the 2012-2013 school year, and , who provided services in 20132014.

testified that she was a licensed clinical social worker, with certification in supervisory and district administration from New York State. She described the as a therapeutic school for children with , including children both on and not on the autism spectrum but with the same core deficits. There were 121 students at the school in 2012-2013 and 115 students in 2013-2014. She identified the academic curriculum used at the school, and described the Developmental Individual Difference Relationship–based (DIR) methodology utilized, detailing the six basic developmental levels through which children progress and explaining that the school seeks to build on relationships as well as that children can generalize what they’ve learned across all areas of development. Tr. 316-322; Ex. V.

has in relating and communicating. However, as Ms. and his teachers emphasized throughout their testimony, his , which affects all other aspects of his academic development. I credit Ms. that it was difficult to without reference to . There was no dispute concerning his problems ; is either , and has deficits in understanding where his body is in space. He is , on the move and seeking input. At the same time he is hypersensitive to auditory and visual input, which . The result is he spends most of his day trying to . Tr. 323-325. When he is under regulated, on the floor, not moving. Up-regulated, he will able . Sometimes he would go days at regulation, other times he would need support several times a day. Tr. 299-302. He requires a lot of support with gestures and physical support through the day to help keep him regulated. Tr. 632-633. Depending on the day, he A lot of the skills he attains are also dependent on his regulation. Tr. 646-647.

His occupational therapists also described his sensory processing challenges in detail. In addition to needing assistance to attain and maintain regulation throughout the day, he had poor body awareness, motor . Tr. 609-610, 671. His complicated sensory system creates many other complications for him. Tr. 336. The teachers noted several safety awareness issues, including challenges with personal or dealing with strangers in the community. Tr. 262-264, 271-272,

280. In the bathroom he needed one-on-one support, as well as prompting. Tr. 270.

In addition . His communication is not spontaneous and mostly about getting his his world and day as “a battlefield for him.” His responses they are appropriate, all day to be present and available. Tr. 336-337. He also in food in part because he mouth. Tr. 390.

In 2012-2013, was in a class with Ms. ; there were seven students in the class, and an additional student in April 2013 made a total of eight students. Ages ranged from 11 to 15 years old, level in literacy and math. Ms. 2012-2013 school year (she was his teacher continuously since September 2010), had an MA in educational theater in English, and was state certified in English, grades seven through 12, drama kindergarten through 12, and special and regular education, grades one through six. There were two teacher assistants, one in a graduate program in special education and the other awaiting certification as an occupational therapist; a third classroom assistant added in April 2013 was either applying for or in school for social work. Tr. 260-262, 277-279, 304-305.

In the summer of 2013, HS was in a class with eight students, with a head teacher, and three teacher assistants, as well as his assigned paraprofessional. The teacher in his summer class in 2013 was , who had an MA in special education and a certified special education teacher. The teacher assistants in that class had, respectively, an MA in occupational therapy, a BA and enrollment in an MA program in special education, and a BA. Tr. 331-332.

In October 2013, he was moved into a new transition classroom, with 11 students, a head teacher, four teaching assistants, and his assigned paraprofessional. Tr. 331, 380. Ms. who was

HS’s teacher in the transition class beginning in October 2013, has an MS in childhood education and special education and initial certification from New York State in general and special education. Tr. 630-632. All the teaching assistants had BAs, one is currently in school in a Master’s program in social work, and two others are to start Master’s degree programs in the following year in occupational therapy. Tr. 635. The transition class has a total of 11 students, aged 15 to 17 years old. When first started the class, there were nine students in the room; two additional students joined in January 2014 and another assistant teacher was added, for a total of four teaching assistants, as well as paraprofessional. Tr. 635. HS’s paraprofessional, who has been September 2011, has a high school diploma. Tr. 332-333.

According to , in the year 2012-2013, work mostly at DIR Levels 1 and 2, starting with regulation, engagement and shared attention, but he also showed some abilities at higher levels, emerging capacities in two-way communication (“circles of communication”) around things that were highly motivating for him. Tr. 325-329; Ex. Z. Ms. described standard academic curriculum, including Everyday Math and Balanced Literacy, stating that the curriculum was adapted to make the skills as functional as doesn’t read independently, his paraprofessional read with him. She described a sight word approach, because working on sight words that were In math, work was on a one-to-one correspondence and number sense, as related to money. Tr. 337-339.

Ms. testified at length about her In September 2012, literacy work began on prereading skills, holding the book appropriately and attending, matching pictures to simple questions. In math, work focused on pre-math skills such as one-to-one correspondence, and also spatial relations. She cited a program , to help him become more aware of his body and better able to use his eyes and hands together; bilateral coordination. Curriculum was a lot of modeling techniques as well as visuals to help him sequence of events. Reading and rereading took place on a daily basis to help become familiar with sight words. to keep him from . Math was often activities, such as , counting as he was removing buttons, and having him add items to a pile of snacks. Ms. described teaching him signs and symbols by modeling the signs during lunch while he was eating, so he could practice throughout the day. She testified that it helped HS to use signs and gestures, to which he was receptive, citing simple gestures like “more” and “drink.” Tr. 264-270. He also got modeling and one-on-one support in the bathroom for keeping his clothes on and prompting for washing his hands and using soap, teeth brushing, and other basic hygiene tasks. In the community, he signs, seeing . Tr. 270-272. Ms. described peer modeling with , which in really motivating such as music or cooking, helped him to become aware of the people around him and of personal space. Social skills throughout the entire day, with modeling for every activity. Tr. 273, 276, 279. HS was given breaks throughout the day. Tr. 271. He would get overwhelmed at large groups of people, especially people eating, so he was given sensory breaks minutes before lunchtime to calm him down, and have him start eating before everyone joined them. Tr. 274. He ate in the classroom, as a small group was the only way while eating. Tr. 275.

After the summer of 2013, was moved into the transition class. explained that because of his age and his very complicated needs, he needed to get as much time on functional skills as possible. Tr. 334-336; Ex. X. Ms. his teacher in the transition class, described the class as many students working on similar goals goals and sharing attention with others. Some of the students are able to initiate with their peers a little bit more, which has been expand his relationships. Tr. 634.

The main focus on the classroom is transitional skills and independence. The class goes into the community as much as possible, and also works in school on independence and navigating relationships. There is a once weekly grocery store trip, during go to the grocery store with the group, pick out a snack for the day, and purchase the snack. Other times they would go to the park or different places, depending on the student vote, to give them the opportunity to plan things depending on their individual needs. In the community, work is on personal safety and the safety of others. Before they go out, students are regulated and once in the community they are given supports to maintain the regulation. For HS, that means working a lot on modulating his speed, helping him remain with the group rather than moving quickly in an unpredictable way. He is given support to stop and wait for the walk signal at the corner, and not to approach and initiate with strangers. Tr. 635-639. Rather than touching people inappropriately, they try to , like giving a high-5 or tapping a shoulder. She cited movement activities with peers, which allow successful and vibrant . They also began with moving his desk before back from the table to be reminded not to grab food. Tr. 644-645. In community trips to the grocery store, they work skills, specifically one-on-one correspondence and counting out dollar bills and coins, as well as navigating his body in a different environment. They also work on activities of daily living, maintaining , bathroom protocols, and ADL skills throughout the day. Tr. 639-643.

transitions to another transition room for reading, and she communicates with the teacher often to see how he is doing. Tr. 646. benefits from a lot of visuals, so stories are modified or visuals made to help him answer questions and break things down for him, including auditory and tactile ways of teaching him. In math, they are working on skills throughout the day, using motivating things such as money practice when he wants a snack. Tr. 649-650. Ms. cited the use of DIR to help understand where he is, and co-regulate with him so he can be functional and ready to engage in learning. Tr. 651. She gestures, that he has learned. He is able to model other signs, although not use independently, such as a sign for bathroom and for food. A lot of narrating is the day. His language needs are addressed with the help of the speech therapist, who provides help on how to get him to communicate more. Tr. 652-654.

She described a typical day sessions for an obstacle course and movement activities with peers, reading, lunch, social skills opportunities, group art, group music, and floor time sessions. During the day he has a lot of movement breaks and sensory breaks throughout the day. She also described the sensory diet which he follows every day, including scheduled time for the sensory gym or other types of movement. Even if it’s not scheduled, if he needs a break, he has access to equipment in the classroom as well as the sensory gym. Tr. 655-656.

Equipment in the classroom is in a sensory corner, with a bean bag chair, mat, therapy balls, and big bouncy balls that HS can sit on or roll over different parts of his body. There is also a ceiling swing. Tr. 656. A big part of his program is sensory regulation, and they are constantly assessing his sensory needs. Tr. 656. As example, , it was very comforting for him and he was able to feel grounded, which helped him engage with his peers. Peer interactions are usually based around some movement activities support. Tr. 658-659.

Ms. described sensory supports in the classroom in the 2012-2013 school year. wore a compression vest on and off every half-hour to squeeze him. They would also provide him with pressure in his hands, and joint compressions and deep pressure in his hands, his joints, on his back, and his head. She also cited use of the trampoline, jumping on a trampoline or bouncing on it therapy ball which was in the room. In addition to the sensory diet, the supports were implemented throughout the day as needed during or in between activities. The swing, vest, ball, and foof chair were in the classroom; the room or just outside in the hallway. She stated that the hand squeezes and joint compressions really helped him. He would also input by pulling towards a therapy ball or trampoline. Tr. 280-283, 287.

The occupational therapists who during the two school years in question testified about their work with HS and the sensory diet developed for him. Ms. Bishop and Ms. Regan were both licensed as occupational therapists, and Ms. Bishop was also certified as a DIR Floor Time provider. Tr. 597, 668.

Both therapists described the sensory diet developed . Ms. explained a sensory diet based on the child’s sensory needs and sensory systems, individualized and provided in a specific order so the child is able to regulate and engage in different interactions. Ms. described specific vestibular input followed by active proprioceptive input, then followed by passive tactile and passive proprioceptive input. These included a brushing protocol and joint compressions. The proprioceptive input helps them understand where his body is in relation to others throughout the day. Tr. 606-608.Training is provided to the classroom teachers on how to implement the sensory diet throughout the day. Ms. described the sensory diet prescribed by the occupational therapist as a series of different movements based on specific sensory needs. would have it as needed, which might be as often as every half-hour between activities; she described a quiet room across the hall when music was played for him. Tr. 280-281. HS’s paraprofessional was also trained, and Ms. described the para bringing him to the sensory gym every two hours to give him needed input to help increase his engagements and interactions throughout the day. Tr. 598-599, 673.

The sensory diet was in addition to the occupational therapy sessions. Both therapists saw HS four times a week for 30 minute sessions, three times individually and once in a group. Tr. 599-600, 670. Therapy took place mainly in the sensory gym, sometimes in the hallway. Tr.

670. HS also wore compression vest, 30 minutes on and 30 minutes off. During therapy sessions, in addition to sensory input they would work on improving his motor planning abilities and visual perceptual abilities. Tr. 606. In the movement group, they concentrated on primitive reflexes, while hallway, for motivating objects or people hiding in to find. Tr. 610-611, 671675 HS needs the and to meet his needs in terms of vestibular input. The sensory gym has suspended equipment, therapy balls, padded walls and floors, and other equipment. It provides a safer environment for him to receive sensory support. Tr. 612-613. Due to his sensory needs, he needs access to basic equipment throughout the day, including therapy balls, dynadiscs, swing, and trampoline. Tr. 612-614, 676.

Ms. schedule for the 2012-2013 school year, testifying that it did not reflect one of the individual occupational therapy sessions. Tr. 334-335; Ex. W. In both 2012-2013 and 2013-2014, he received speech and language therapy individually three times a week. All therapists in both years are New York licensed and certified in their respective fields. She described and in the classroom to ensure goals are carried over, citing a communication book with pictures which he uses in the classroom and is as well as having him use it expressively as an exchange for something. Tr. 345-347. Ms. escribed an oral motor protocol for HS set up by the speech and language pathologist, a vibrator called a Z-vibe which massages his cheeks and provide input to reduce his need to put things in his mouth, eat more often, or grab food. Tr. 391.

Most related services, occupational therapy, , were provided in the sensory gym, with HS was best able to function. Tr. 382. In 2012-2013, he received physical therapy once a week from , who has a doctorate in physical therapy. At the start of the school year, his needs were motor planning and sequencing, walking up and down stairs independently. He needed support for holding onto the railing and being able to track visually. He made progress and was discharged from physical therapy in May 2013, based on her assessment that he was relatively age-appropriate in gross motor skills and his issues were more sensory processing and not gross motor. Tr. 348-351; Exs. Y, AA.

Asked about parent training and both school years, Ms. stated ongoing contact with the social worker, and has gotten support at home to make sure there is carryover between the home and school. in to get trained to make sure she is implementing the program with expectations the same as the school. In the past, she has also been through DIR training. Tr. 366.

Ms. described academic gains the 2012-2013 school year, notably being able to identify sight words in different settings and with different people, i.e., generalizing what he had learned to other staff members. He was able to more consistently identify numbers, and actually began following the letters written out for him and identifying them in other ways, able to make some identification by the end of the school year. She also cited some improvement in identifying street signs, although that was still difficult for him. His bathroom practice altered, so that instead of just going and stripping down, he began to hand a picture of the bathroom, communicating his need and not stripping as often. Tr. 340-342. Ms cited as progress that he was able to hold over skills that he had learned in previous years, including signs and gestures, and socializing with his peers. In addition, he was advocating for himself a little more, requesting his sensory supports when or before he . She also cited particularly in motivating situations like music where he was able to . She also cited him opening more circles, initiating and using gestures and requesting things. In regard to academics, he could attend to a read-aloud longer, holding and turning the pages correctly, able to so sight work and matching. He was also answering very . In math, he had more of a sense of correspondence. She also cited his ability to follow simple directions, and ADL skills . He had also made some progress in not putting things in his mouth as much. Tr. 287-290; Exs. AA, BB. Ms. described progress in occupational therapy in the 2012-2013 school year, noting improvement in motor planning with him going from not really assisting with the swing toward the end of the year, he was able to locate her a lot quicker and more times in a session, displaying improvement in visual perceptual skills. She also cited his ability to maintain his presence within the group for longer amount of time and engage in movements in different positions and planes, compared to being upright sitting. Tr. 620-621; Ex. AA.

In the current 2013-2014 school year, Ms. noted that he has continued to communicate when he has to go to the bathroom, more often not stripping down. He has also improved in the community, needing adult support but able sometimes to see the sign and know when to cross the street. In the community, he uses money more productively, knowing how many dollars he needs to buy his snacks. Another big change is that he is sitting at the table with other children and eating, showing improvement in letting others eat their own food without trying to take it from them. She stated that a big improvement in his comprehension and understanding what was being asked of him allowed the level of support in many areas to go from severe to moderate support. Tr. 342-343. She cited an increase in vocalizations and making sounds, trying to put vowels and consonants together, and using signs (“more,” “all,” “gone”) more consistently. Tr. 344-345, 385-388. She also cited improvement in asking for the sensory input he needs, such as coming over and taking an adult’s hands and placing them on his head for deep pressure when he feels overwhelmed. She testified that it reflects much more awareness of where he is in space and what his needs are. Tr. 343. Ms. , his occupational therapist, described progress in the 2013-2014 school year, stating that he has demonstrated . He needs less frequent tactile cues to get moving and engage in the session, shares attention with her easier and for a longer period of time, going from five or six minutes to a 10 minute period during the session. He initiates a lot more and engages purposefully. In groups he . He is also able to attract and scan and participate and has definitely improved body awareness. She described increased core strength and increased ability to maintain unfamiliar positions. Tr. 679-680.

Ms. his transition class teacher, testified that although trips in the community and the grocery store were , he showed a lot of progress once a routine was established. She cited progress in his being able to stay with the scan the environment in grocery stores, and not when outside. He also has made some progress . Tr. 639-641.

She also noted that he has been able to sit at the group table with all his peers, the desk moved back to the table, which she described as an area of progress that allows him to be with the whole group. He is able to a little bit more, although at times . Tr. 645. He is able to stay in the room and attend the story for the duration, and is more consistent and better able to differentiate between real objects and pictures of objects. In math, he is very consistent now with identifying “more.” She conceded that a lot of his skills are . Tr. 646-648. She stated that his regulation in general has definitely improved, and is most noticeable in the community where he can modulate his speed better. In addition, she cited develop some peer relations. He is more aware of his peers and able to stay in small group settings for longer periods of time. In academics, he is able to stay . He is beginning to understand the function of the dollar, and able to generalize his signs more with all staff members. He also uses more. Tr. 658-660.

Ms. the as cited the gains he had made in an individualized program designed to meet his needs, as did Ms. . All spoke of the program’s ability to meet his sensory as well as his academic and social needs, with Ms. offering praise for a “ton of access” to sensory materials within the classroom, the hallway, and the building, which she described as “really vital growth,” stating that without the sensory support, it is really hard for him to engage and be open for learning. Tr. 295, 375, 661. Ms. also noted that at the was able to get his individualized sensory diet regularly. Tr. 680.

Witnesses from the also rejected the appropriateness of the district’s 6:1:1 class recommended for testified that a 6:1:1 class did not provide enough staff the child and the common teaching methodology (TEACCH) required independence, a type of teaching would not be successful with him. Tr. 362. Ms. said that she didn’t think he would be able to sit at a desk in a public school , citing that she had never seen adequate sensory supports in any classroom she had seen the single year she worked as a paraprofessional. Tr. 283-285, 296-297.

Ms. also noted that the goals in the February 8, 2012 IEP had been met prior to the start of the school year. Tr. 368. Asked about management needs in the IEP for the 2012-2013 school year, Ms. stated that the section didn’t describe the extent or needs, omitting reference to his , and neglecting to describe how often or what his needs are. Tr. 370. Commenting on the assessment in the IEP, she stated that it skimmed the surface of his behavioral needs without details about behaviors that need to be addressed. She testified that the behavior intervention plan doesn’t give any indication about what is to be done and how often it is to be done. Tr. 372-373. Ex. 1.

Ms. stated that the IEP recommendation for physical therapy five times a week both inappropriately increased his prior recommendation of once a week physical therapy and , was also not needed as he later. Tr. 354-356. Asked about an occupational therapy recommendation for three times a week on an individual basis, she stated that at that time he needed more occupational therapy more times a week. Tr. 357.

parent, testified that when he was two years old, receiving a diagnosis of . He was subsequently given an autistic diagnosis, as well as being diagnosed with . These diagnoses continue to be accurate, although she was not Tr. 405-408. He attended a center-based program until he , after which he for one year. She removed him from the school, as the he was in was not enough to support him. He then nearly because he wasn’t receiving all his . He began at Tr. 410-414, 557-558.

She testified about the IEP meeting on February 8, 2012. She testified that she was not asked about conducting an , nor did the CSE discuss with her if evaluations were required. She identified participants at the meeting, including a social worker from parent advocate, another teacher from the DOE, and , the teacher from , participating by telephone. Tr. 415-417.

testified that a lot of things were discussed at the meeting. Discussed at the meeting was the progress report from the Rebecca School, short-term goals, long-term goals, where HS was at and where he would be expected to be. They also discussed formal assessments, which he was not required to take because of his special needs. Dr. mentioned the IEP was changing, and would be in a different format, stating that when she received it she wouldn’t even recognize it but it might take some time for that. The recommendation was for a paraprofessional support and related services of occupational therapy, physical therapy, and speech. She recalled that they mentioned how much he would be getting, and told her that it would be in 30 minute sessions but once he reached a certain age, it would change to 40 minutes sessions. She stated that she didn’t agree with the recommendation. There was no discussion of evaluations and she did not recall any transition plan for HS. Tr. 419-420, 474-475. talked about the goals he was working on at the Rebecca School and they went over the progress report from the school. Tr. 558. The discussion about related services was would be changing from 30 to 40 minutes, five times a week; she was glad because the occupational therapy was sensory connected which he needed. She was also hopeful about the speech recommendation, also five times weekly for 40 minutes. She did not recall a discussion about physical therapy. Tr. 559-560. On cross-examination CM acknowledged that the concerns she voiced at the meeting about a 6:1:1 program were based on her knowledge of program he was enrolled in years before.

There was no functional behavior assessment conducted, although the CSE requested consent to conduct on that day. She testified the CSE did not develop a behavior intervention plan with her either, and she has never received either a functional behavior assessment or behavior intervention plan the 2012-2013 school year. Tr. 420-421. She did not think behaviors were discussed during the meeting. Upon consulting her notes from that day, she explained the reference to “behaviors” as being something she anticipated would be discussed and it wasn’t, so she “just wrote whatever came along like what he can or can’t do.” Tr. 470-472. Asked about the needs on the IEP’s functional behavior assessment, i.e., sensory input, movement breaks, communicating , she agreed with the characterization. She testified could be reinforced by music as well as food, explaining that anything he likes will encourage him to comply with the task at hand. Tr. 472-474.

identified notes she took during the meeting, which included the statement by Dr. that the IEP would be on a different platform and would take some time. She was not given an IEP on February 8, 2012, nor did she receive one any time prior to July 2012. Tr. 421-424; Ex. N. She faxed a letter to the DOE, stating that she had not received an IEP or placement for the upcoming school year, and a few days later received a final notice of recommendation for P 37 annex. Tr. 424-426; Ex. C. On cross-examination, she stated that she “never sent anything about rejecting anything.” She stated that she decided to the school placement after she saw it and saw it was inappropriate She offered the explanation that she wrote the DOE that she would be at , but didn’t actually say that she did. She testified that she made the decision to the after she did not receive a response to the letter she sent. Tr. 565-569; Ex. C.

She described her visit to the school at length, meeting with the assistant principal and touring the school. She observe classrooms and noticed clutter, and was told they use a combined methodology of ABA and TEACCH. The school didn’t have a sensory gym, only a treadmill and what looked like basketball hoops. She was told the students were taken out to eat once a week, but everything else was mimicked in the school, such as a pretend grocery store and pretend laundromats. In the speech room, she saw data entry, do. She stated that it was too advanced for him, as were the students in some of the classes she saw. The assistant principal told her he could get more speech therapists for the school, but , he would have to provide a letter for a related service authorization (RSA) as they may not have enough therapists to come to the school. A few of the classes eat lunch in the cafeteria together. She stated this would not be due to his . She acknowledged that the school did have the sensory ball, swinging, and a bear hug vest. She faxed a letter concerning her visit to the DOE in August 2012, requesting further information, specifically a class profile and program description. She did not received any response to her letter. Tr. 426-433, 438; Ex. D. She conceded that she knew from the placement letter that she would be looking at program. Asked whether she saw the actual classroom into which HS would have been placed, she was unresponsive, evading the question with multiple replies, and stating that she looked at quite a few classrooms of different ages and ratios, and went by what she was told by . Tr. 476-479. When asked about the due process complaint notice statements that she was not informed which be placed in during her visit, she testified that the assistant principal didn’t specify which class, stating that “I assumed but he didn’t tell me.” She then acknowledged that she didn’t know the functional levels of the students that would have classmates. Asked about the data entry room with students typing, she said that it was either speech , and did not respond to the question about why she thought would be required to type, other than to say, “I guess it’s part of the therapy they use.” She conceded that it was also her assumption that his class would have lunch in the cafeteria with other classes, and that the assistant principal did not would have to eat the cafeteria with the other students. Tr. 479-486. On cross-examination, she testified that she made the visit because she wanted to be open if it was an appropriate placement, and explained that she was looking for a sensory gym, equipment to needs, community walks, and many other things he needs. She stated that she didn’t ask whether stated that she didn’t remember if she asked or not, and she may have asked. She testified that she wasn’t told the school did community walks, and when reminded that she had testified that she was told walks were taken once a week, she stated that she didn’t know “if they walked to a restaurant or if they were brought there by a vehicle, but that’s once a week and it’s to a place to eat.” She did not remember if she told the assistant principal the specific was recommended for related services. Tr. 560-565.

Following the visit, wrote to the DOE asking for a class profile and program description because she had been told would be in, she saw various different classes, and the meeting was vague. She was willing to go back to the school for another look if she knew what class . Tr. 569-571. She agreed the offered placement site were too distracting , and she wrote the letter sent August 1, 2012 stating that it would not be appropriate for him as it was too distracting. She explained that the students she saw at the school were although she didn’t know if she was told that or she was guessing. In regard to related services, she was told the school could get more speech pathologists if necessary, but he would not have enough occupational therapists to provide the she then recalled that she was told he would have to get an RSA for occupational therapy because there would not be enough therapists to meet what was mandated on the IEP. When asked whether she was told they might not gave the different answers she gave. Tr. 571-

578. Asked why an RSA would not be welcome when she had explained she was glad about the five times a week occupational therapy the services in the school all day long. She then said that five times a week was not enough; he would need more than that. Tr. 578-580. She placed HS at the Rebecca School for the 2012-2013 school year. Tr. 438.

In the summer of 2012, she went to the record room at the CSE, accompanied to see ’s file. She and Ms. reviewed the entire file, which did not contain any IEP for February 8, 2012. She testified that the first time she ever saw the IEP was in January 2014, the day before the first day of the impartial hearing. Tr. 434-438.

Questioned about the 2013-2014 school a document that she sent to the CSE about not being offered a placement. She placed him at for 2013-2014 school year. Tr. 439-440; Ex. J.

Asked about progress at testified that s much better take out into community, calmer, able to wait patiently on line and make better decisions. He is more aware of his space and considerate of others’ personal space. He is also , and she has noticed a difference in his behavior during school breaks. Tr. 448-449.

There was prolonged testimony about the parent’s contract with the by both and Ms.

. testified about the enrollment contracts and payment schedule at the Rebecca School for the 2012-2013 school year. She agreed required a paraprofessional for the 2012-2013 school year. She testified that she was obligated for the tuition stated in the enrollment contract and payment schedule. Exs. E, F. She also identified the enrollment contract and contract paraprofessional for the 2013-2014 school year, acknowledging that she was obligated for the tuition and cost of the paraprofessional contained in those documents. Exs. K, L. She testified that she was not in a financial position to lay out the entire for the two school years. She identified her tax return for the 2012 calendar year, and her wage and tax statement for the 2012 year. Exs. H, I. She stated that she had no other assets. Tr. 441-446.

There was additional testimony about her payments to the school. testified that she paid $50 monthly for each year’s tuition (for a total of $150, which included additional $50 payment for a prior year, the decision for which was awaiting an appeal decision). She repeated several times her understanding that she pays monthly and to the best of her ability. She testified that HS would be able to attend the following school year as long as she was making an attempt to pay, paying what she could in good faith. Asked about her understanding that he would be able to continue to attend under that arrangement, she stated that she didn’t remember having a conversation with someone at . She said that all she knew was, “Where else is he supposed to go?” She that she didn’t remember who if anyone told her that, whether she had a conversation with someone at the school. She was unable to say or give an estimate of how much she had paid. She thought the tuition was about $90,000; that tuition for the 2013-2014 school year was “a little bit more” that the $97,000 in the contract; and that the cost for the paraprofessional was approximately over $20,000. Asked how she knew she was to write a check for $50 for each school year, she stated that it was “whatever I could afford,” and did not remember talking to anyone about it. She has not done the math to figure out how long it would take her to pay. She didn’t remember if she discussed the possibility of an alternate payment plan with anyone if she was not successful at hearing. Asked if she ever received notice of late charges from the Rebecca School, she first answered she may have, then stated that she had received them. She explained that when she received late notices, she contacted the responsible person at the Rebecca School, Sylvie in the 2012-2013 school year in the current 2013-2014 school year. After several questions, she acknowledged and in the following , her ability to afford payments and trying to work something out. She was never told she had to pay the $300 late fee in the contract, nor did she mentioned to them. She did not recall the actual payment schedule in the enrollment contract, although she knew it was more than $50.^[1] Tr. 447-469.

Ms. also testified about payment tuition for 2012-2013 and 2013-2014. She testified that the agreement with the parent was that would make monthly payments towards the balance due on her payment schedule. The payment due was a minimum $50 a month for each school year. spoke with the business managers in 2012-2013 and in 2013-2014, and they set up the day payments schedule of monthly payments. There was no written signed payment schedule or payment plan; Ms recalled emails with Ms the 2012-2013 school year but these were not readily available. The terms were would pay the $50 for each school year monthly until either her situation changed or the final end of these proceedings happened. There was no writing memorializing the payment plan of $50 monthly, and there were no late charges as referenced in the contracts incurred by stated that the contract addendum provided that if tuition was not paid, a new payment plan would be issued for the parent to make payment; she acknowledged it was not said as clearly as on the contract’s payment schedule. She testified that there was no need for an oral addendum; the contract is that if the DOE does not pay, would have to pay. There were no other terms or portion of the contracts modified after they were signed. Tr. 637-723.

FINDINGS

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

In evaluation the evidence in this case, I must first comment on the testimony of the parent. ’s testimony, self-serving, confused, and contradictory, was characterized by evasions and obfuscations, and failed all tests . While the parent’s closing brief attributed her troubling testimony to during a long hearing day, I reject that claim. The hearing schedule was necessitated by several prior adjournments requested by the parent and parent attorney, and there was no mention during the hearing of discomfiture by the parent or a need to adjourn the proceedings; recesses were granted throughout the day.^[2] The parent’s brief also incorrectly attributes my questioning of the witness as caused by the attempts of the district’s attorney to confuse the witness, a of my effort to get a clear answer from a witness who was unwilling to provide one. The description of the district and embarrass” was also an unfair description of questioning warranted by the parent’s many evasions. IHO Ex. VII.

Due to the parent’s many contradictions, evasions, obfuscations, and confabulations, I found her testimony to be unreliable and lacking in credibility, so much so that I am forced to eliminate any consideration of her testimony in my analysis. The merits of the case will be decided without reference to any of her testimony.

ISSUE 1 - Appropriateness of School District Program

A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure attorney was instructed to provide the documents. Tr. 464-465; IHO Exs. III, IV. that students with disabilities have available to them a free appropriate public education (FAPE). 20 U.S.C. § 1400(d) (1) (A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (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. A FAPE must be reasonably calculated to enable the child to receive educational benefits. 20 U.S.C. 1400 et seq.; Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). The student's recommended program also be provided in the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. 34 C.F.R. § 300.320(a)(1), (a)(4); 8 NYCRR 200.4(d)(2)(i), (iii), (v).

As the DOE conceded it had not provided a FAPE for HS in the 2013-2014 school year, analysis of the request for that year will turn directly to the second prong of the Burlington test, discussed below.

I find that the DOE has also failed to sustain its burden in regard to the 2012-2013 school year. I note at the outset that the failures in this case were multiple, notably inaccuracies and omissions in the IEP impacting directly on the DOE’s recommendation for the child’s program and services, as well as failure to provide the parent with an IEP for the year in question.

In so ruling, I am relying exclusively on the testimony of , the district’s sole witness, and the five staff members from , as well as documents entered into evidence. For reasons explained above, I am not considering any of the testimony of the parent in this case.

I find that the recommended program was not appropriate recommendation was based on insufficient information and failed to indicate the substantial amount of occupational therapy needs of the child. It was undisputed requiring support, and that without a and movement breaks throughout the day he was not available for learning. As the many witnesses from the attested, he needs occupational therapy during the day and all day. Dr. s explanation that was based on the child’s reported delays in cognitive functioning, academics, and social-emotional development, having been developed to assist students in developing skills in those areas, clearly indicated misperception and insufficient information to make an appropriate recommendation for the child. His conclusion did not failed to acknowledge that the child’s need for regulation due to was an absolute prerequisite for the child to be

In fact, the occupational therapy recommendation on the IEP was plain wrong, first because it was admittedly not the same as the recommendation of the committee made on February 8, 2012, and more importantly, because it did not provide sufficient amount of occupational therapy for HS. Exs. 1, 2. The description of his sensory needs was insufficient, omitting reference to his any specifics of supports he would need.

The parent also argued that a properly conducted functional behavior assessment would have made the difference. While the absence does not necessarily constitute a denial of FAPE by itself, in this case it was its presence that supported the parent’s argument that had it been done correctly the child’s needs would have been more properly included in the IEP and reflected in the recommendation for program and services. I note testimony that the functional behavior assessment was needed for the recommendation of to be accepted by the SESIS system and that the assessment was conducted in the “context” of the February 8, 2012 meeting, a swift and summary manner not envisioned by regulation. It was not based on multiple sources of data, only on teacher and parent reports of behavior; there was no evidence of any other observation of the student nor of input from The district’s argument that the discussion was memorialized in the IEP minutes only lends support to the inadequacy of the process by which the analysis was conducted. The minutes only referenced “ a plan that could not be identified by Dr. . Nor could minutes of a meeting remedy defects in the IEP, the all-important document meant to follow the child. His testimony of reliance upon the discussion of parent comments and teacher report failed to comply with applicable regulations. There was no in concrete terms, and no baseline describing . The behavior plan, written more for brevity than substance, also failed to , and failed to identify the behaviors or strategies to be used. Both documents described in summary terms, as having , difficulty with communication, distractions by food, and the need for sensory and movement breaks. They failed to include any specifics concerning such as throwing himself on the floor or loud vocalizations, or how to identify interventions he would need and strategies to provide the proprioceptive, vestibular, or tactile input required. 8 NYCRR §§ 200.1(r), 200.4(b)(1)(v).

While complaints about an absence of evaluations would not necessarily render an otherwise valid IEP invalid, in this case the IEP that came out of the February 8, 2012 review was singularly absent of needed data about the child. There were several other errors and omissions in the IEP that was produced. testimony highlighted several, among them the unchecked box that not have a behavioral intervention plan; the incorrect recommendation for physical therapy sessions; the incorrect recommendation ; the absence of a transition plan and transition activities; and the absence of recommendation for parent training and counseling.

In addition, I find that the district argued that the DOE failed to provide the parent with an IEP for the 2012-2013 school year. Dr. s testimony was sufficient to support a presumption of mailing, as provided in in New York common law. In this case, however, the evidence was not persuasive that the IEP was received by the parent and the presumption was easily rebutted. Nassau Ins. Co., 46 N.Y.2d, at 829-30 (1978); Application of the XXXXXXXXX, Appeal No. 12215; see also SRO Appeal No. 12-052; .Dr. s testimony, while otherwise knowledgeable about protocols, revealed gaps in a process that had not yet become routine. While Dr. account was reliable, he had no specific memory and his protocols could not stand up against several facts in evidence. As he conceded, this was a first run of the SESIS system, with acknowledged glitches in the system. Several of those problems were apparent in the errors and omissions in the IEP, noted above. I also credit the , who accompanied the parent to the CSE’s record room in the following summer and failed to find an IEP in the student’s education file. I note also that Dr. was not questioned about whether an IEP was returned to the DOE, or protocols for that type of event. Exs.4, O. Finally, there were multiple letters sent by the parent, to which the DOE did not respond. Exs. C, D. There was no explanation why the DOE, given notice that perhaps their SESIS had not in fact sent out an IEP, did not just put another one in the mail. Had it done so, taken the opportunity offered not once, but three times (two letters and the DPCN) there would be no claim. Nor did the DOE response even acknowledge much less deny the claim in its due process response. Exs. A, B. Upon review, I find that it would be unreasonable to assume that the IEP was mailed.

The district’s failure to provide the IEP does not automatically rise to a denial of FAPE. In this case, however, the failure to respond to the parent’s entreaties for a copy of the IEP, as well as the various defects noted above in the IEP that was presented in evidence, had consequences that went beyond a missing document. The failure to provide the IEP was not insignificant nor without practical effect, as noted in the parent’s claims. As noted, the recommendation for occupational therapy, of critical incorrectly entered in the IEP, and important details about his sensory diet and supports were not included. The functional behavioral assessment and behavior intervention plan were unusually cursory, without sufficient guidance, and parent training was completely omitted. These flaws were compounded by the district’s failure to provide an IEP, depriving the parent of the opportunity to review the recommendations and offer corrections. See, e.g. Application of the XXXXXXXXX, Appeal No. 12-215.

I reject claims made based on the parent’s visit to the school. The claims with respect to the assigned school are at the least speculative, in that her letter of June 18, 2012 rejected the recommendation of the CSE. It was clear from her June 18, 2012 letter that she was at the (“I am … I will request an impartial hearing in the near future to pursue public funding for this placement.)” Ex. C. Her letter of August 1, 2012, following the visit to the recommended school, repeated her statement that a was . Ex. D. I discount all claims concerning the proposed placement as speculative, and irrelevant as the child was placed in and attending the private school. Had he attended the recommended placement, it would have been required to conform to the program offered in the IEP, but her rejection of the placement made such compliance unnecessary.^[3] Under the circumstances, the district was not required to prove it could implement the February 8, 2012 IEP. Application of a Student with a Disability, Appeal No. 11-098. As noted, I have excluded consideration of the parent’s testimony, including testimony about the proposed site. I concur with the district argument that sufficiency of the district’s offered program is to be determined on the basis of the IEP itself. R.E. v. New York City Dept. of Educ., 694 F.3d 167 (2012),

In regard to claims in the due process complaint, I discount the claim that the team was improperly constituted, noting undisputed testimony that all mandated members were present. I discount claims concerning goals, noting undisputed testimony that goals were discussed at the meeting. As for functional grouping, the law is clear that this is speculative where the student never attended the public school placement. R.C. v. Byram Hills Sch. Dist., 2012 WL 5862736 (SDNY 2012); see also SRO Appeal No. 11-016.

For the reasons noted above, I find the DOE failed to provide a FAPE in 2012-2013 as well as 2013-2014.

ISSUE 2 - Appropriateness of Parent Placement

Under the second prong of Burlington, the parents bear the burden of proving the appropriateness of the services sought for . M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the Rebecca School offered an educational program designed to meet HS’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of . There was no dispute concerning ’s needs, both his cognitive deficits and the sensory challenges that impeded his learning and social-emotional development, as well as issues with body , and visual perceptual difficulties. The evidence was substantial concerning the program designed at the special education needs. I credit the testimony of the classroom teachers concerning the several strategies the classroom, noting reading for familiarity with sight words, math integrated with sensory activities, and the use of modeling and peer modeling to . In the transition class in the 2013-2014 school year, he worked on personal safety and maintaining regulation in the community as well as ADLs. I also credit the testimony of all the staff concerning implementation of an ongoing sensory diet to help attain and maintain regulation. The district argued that related services did not meet the IEP mandates, ignoring the acknowledgement by its own witness that the mandate amounts recorded in the IEP were incorrect. I credit testimony that physical therapy was discontinued upon the recommendation of the physical therapist was age-appropriate and his deficits more in the sensory rather than the physical domain. In all other aspects, if anything, the exceeded the IEP recommendations. Certainly, the occupational therapy and support in the classroom, hall way, and , including equipment, sensory breaks, appropriate , allowing him the continued support he needed to be .

that I agree to be inappropriate.

As for progress, I credit the reports of teachers and therapists concerning HS’s increases in regulation, his increased amount of attention, his increased awareness of his body in space, and his engagement and awareness of peers and others. Academic progress was noted in identifying sight words in different settings, an emerging number sense, and attending in read-alouds for longer periods of time. Although the several improvements were generally small steps, they indicated progress that was . I note in particular Ms. s description of the transition class and ’s community forays, and the improvements she noted in his functional skills.

I note also that reliance on the written and verbal reports of the particularly , s teacher at the time and the only person at the meeting who had ever seen the child (other than the parent), as described by Dr. weighs in favor of the appropriateness of the school for A.D. v. Board of Educ. of the City of New York, 690 F. Supp.2d 193 (2010).

For all the foregoing, I find the program and services at the in the 2012-2013 and 2013-2014 school years to be appropriate. I note also that it was undisputed that a one-on-one paraprofessional was needed to provide support for throughout the day. As he was recommended for the same level of services by the DOE, I find those services to be appropriate.

ISSUE 3 - Equitable Considerations

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. §1412(a)(10)(C)(iii).

The district argues that equities favor the DOE because the parent had no intention of placing this student in a public school, did not fully cooperate with the DOE, and does not have an enforceable contract with the tuition.

I reject the argument that the parent had no intention of placing the child in a public school and did not cooperate with the DOE. Despite while testifying, there was ample evidence of her cooperation, indeed her efforts in securing an appropriate placement The documentary evidence reveals that she attended the IEP meeting, wrote letters trying to obtain the IEP for her son, and even went to the DOE offices trying to locate the errant IEP, as well as visiting the placement recommendation. Exs. 1, C, D, O. Given those efforts, I cannot find fault with her cooperation for the 2012-2013 school year. I note the district offered no claim or support for a claim that she failed to cooperate with the district in the 2013-2014 school year.

The district also argued that the contracts with was illusory, given the parent’s limited resources and her unhelpful explanation that she would pay what she could, simply $50 a month for each year unpaid. The parent argued that the validity of the contract was not properly before me, citing A.R. v. New York City Dept. of Educ., 2013 WL 5312537 (SDNY). I reject that argument, as the court in A.R. relied on the decision in Mr. and Mrs. A v. New York City Dept. of Educ., which authorized precisely such review to determine whether there exists collusion between the parent and private school, artificial inflation of tuition charges, or bad faith warranting a rejection or reduction of tuition funding. Although both cases rejected a finding that the contract in question was a sham, the authority of hearing officers to conduct a review was expressly sanctioned. The parent’s obligation is an appropriately an ethical consideration for my review. Mr. and Mrs. A v. New York City Dept. of Educ., 769 F.Supp.2d 403 (2011).

I do agree with the parent’s argument that the parent’s limited resources, even resources as limited as this parent’s, do not constitute a bar to an award of tuition beyond the parent’s means. As was made clear in the case of Mr. and Mrs. A, a lenient payment schedule, even one where tuition expenses dwarf the parent’s annual income, does not change the nature of the DOE’s obligation to the student and his parent under IDEA. The court noted that “Presumably, nearly all parents who seek a unilateral placement under IDEA and then seek tuition reimbursement act at least in part out of a hope, belief, or expectation that the school district will ultimately be forced to fund their placement. The only difference in this case is that School absorbed some of that risk, by agreeing with a needy family to a permissive payment schedule.” The court found 20 United States Code §1415(i)(2)(c)(iii) sufficiently broad to encompass retroactive direct tuition payment relief sought by the parent.

The parent’s wage statements and tax returns clearly provide adequate proof qualifying direct payment to the school under a Connors analysis. Exs. H, I, JJ, KK. Connors v. Mills, 34 F.Supp.2d 795 (NDNY, 1998); see also D.A. v. N.Y.C. Dept. of Education, 09-CIV-5097 (SDNY, 2/1/11); Sabatini v. Corning-Painted Post Area School District, 78 F.Supp.2d 138 (WDNY).

Moreover, I note the parent’s letters of June 18, 2012 and August 1, 2012, which offered the DOE multiple opportunity to provide the missing IEP to the parent. Exs. C, D. Again, upon the filing of the due process complaint notice, there was notice that the IEP was not received, and again the district failed to provide it. Its response to the hearing request did not even address the claim. Exs. A, B. Clearly, the district failed at different stages to do what it should have done and could so easily have done. The district’s abdication of its role merits a finding that equities favor the parent. R.B. v. New York City Dept. of Educ., 713 F. Supp.2d 235 (2101); N.R. v. Dept. of Educ. of the City Sch. Dist, of N.Y., 2009 WL 874061 (SDNY), citing Gabel v. Board of Educ. Hyde Park Central School District, 368 F.Supp.2d 313 (2005).

For all the above, I find that equitable considerations do not operate to deny or reduce an award of tuition payment.

ORDER

1. Upon submission of proof of payment, the DOE shall reimburse the parent for payment of tuition for for the 2012-2013 and 2013-2014 school years. After reimbursement to the parent of tuition paid, the DOE shall pay the remaining balance directly to the school. Total tuition costs to be paid by the DOE under this Order shall not exceed $97,700 for 2012-2013 and $103,990 for 2013-2014.

Payment to shall be subject to and reduced by the amount of reimbursement paid to the parent.

2. The DOE shall also pay for the cost of paraprofessional services for HS for the 2012-2013 and 2013-2014 school years, at a cost not to exceed $20,317 for each year. IT IS SO ORDERED. Dated: May 28, 2014

Nancy M. Lederman, gc

NANCY M. LEDERMAN

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the Board 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.

If the parent plans to appeal the decision, 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 so that a certified copy of the hearing record may be prepared for submission by the school district. Failure to file the notice of intention to seek review is a waiver of the right to appeal the decision.

If the school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

The petition for review shall be served upon the opposing party 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. (8 NYCRR §279.2[b])

The rules of procedure for proceedings before a State Review Officer are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

EXS.

DOE Exs. 1 IEP, 02/08/2012, 16 pages 2 Meeting Minutes, 02/08/2012, 5 pages 3 Interdisciplinary Report of Progress Update, 12/2011, 13 pages 4 Events log, 01/24/2012 - 12/18/2013, 4 pages

Parent Exs. * A Amended Impartial Hearing Request, 09/19/2013, 6 pages B Response to Amended Due Process Complaint, 09/26/2013, 6 pages C Letter, , 06/18/2012, with fax confirmation, 2 pages D Letter, 08/01/2012, with fax confirmation, 3 pages E Enrollment Contract, , 2012-2013, 6/20/12, 4 pages F Addendum to Payment Schedule, 2012-201, 07/26/2012, 2 pages G Cancelled checks, 6/20/12 – 10/29/13, 9 pages H Income tax return, 2012, 3 pages I W2 form, , 2012, 1 page J Letter, , with fax confirmation, 06/17/2013, 2 pages K Enrollment Contract, , 2013-2014, 06/19/2013, 4 pages L Addendum to Payment Schedule, 2013-2014, 07/17/2013, 07/23/2013, 2 pages M Cancelled checks, 10/17/2013, 11/29/2013, 2 pages N IEP meeting notes, 2/8/12, 7 pages O Affidavit, Andrea Santoro, 1/8/14, 1 page S IEP, 3/18/13, 16 pages T Memos, , 7/2/12, and subpoena, 6/20/12, 5 pages V curriculum, undated, 3 pages W Schedule, , 2012-2013, 1 page X Schedule, , 2013-2014, 1 page Y Physical therapy discharge report, 5/3/13, 3 pages Z Inter-disciplinary report of progress update, 6/12, 15 pages AA Progress report, , 12/12 10 pages BB Progress report, , 6/13, 9 pages CC Progress report, , 1/14, 8 pages DD evaluation, 12/18/12, 6 pages EE evaluation, 1/30/13, 5 pages FF Physical therapy evaluation, 2/18/13, 2 pages GG evaluation, 1/8/13, 4 pages

II Special education delivery service report, 12/31/11, 1/20/12, 1 page JJ 2013 tax return, , 2/18/14, 3 pages KK W-2 form, , 2013, 1 page LL Cancelled checks, CM, 9/13 - 3/14, 11 pages MM IEP, 1/26/11, 16 pages

* Documents marked for identification as P, Q, R, U, and HH were not admitted into evidence.

IHO Exs. I Subpoenas, , 3/21/14, 3 pages II Psychological evaluation, 1/25/12, 8 pages III Payment schedule, 2012/2013, 6/20/12, 7/24/12, 7/26/12, 4 pages IV Payment schedule, 2013/2014, 6/19/13, 7/17/13, 7/23/13, 4 pages V Extensions, 8/10/13 - 4/24/14, 6 pages VI Closing Brief, DOE, 5/12/14, 14 pages VII Closing Brief, Parent, 5/12/14, 30 pages

TRANSCRIPT CORRECTIONS

Page 113, Line 21 attribution to Hearing Officer Lederman is incorrect; correct attribution is to Ms. Faraci

Page 340, Line 20 “able to identify sight words or cross” is incorrect; correct clause is “able to identify sight words across”

Page 716, Lines 7, 12 “lay” is incorrect; correct word is “late”

Page 724, Line 19 “formulary’ is incorrect; correct word is “following”

Page 726, Line 2 “validity” is incorrect; correct word is “ability”

Footnotes

[1] It became clear during s testimony that the contracts submitted by the parent had not included the payment schedules that were expressly incorporated within the contract, and the parent’s

[2] The parent’s brief suggests her testimony on April 24, 2014 at 4:30 PM began when the hearing day started at 10:00 AM, when in fact CM’s testimony only began in the afternoon, after two witnesses from the Rebecca School.

[3] Although I have credited the parent’s claim that she failed to receive an IEP from the district, it was equally clear that the parent’s objection was primarily to the program proposed, a program