New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: October 10, 2014

November 20, 2014

November 24, 2014

December 9, 2014

December 16, 2014

January 13, 2015

January 22, 2015

Actual Record Closed Date: March 30, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 10, 2014

Esq. Attorney — Student

Father — Student

Mother — Student

Esq. Attorney, — DOE

( ) Coordinator — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 20, 2014

Esq. Attorney — Student

Father — Student

Mother — Student

Esq. Attorney, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 24, 2014

Esq. Attorney — Student

Esq. Attorney — Student

Father — Student

Mother — Student

Esq. Attorney, — DOE

CPSE Administrator, (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 9, 2014

Esq. Attorney — Student

Father — Student

Mother — Student

Esq. Attorney, — DOE

Director of Education, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 16, 2014

Esq. Attorney — Student

Esq. Attorney — Student

Father — Student

Mother — Student

Director (via telephone) — Student

(via telephone) — Student

Parent Representative (via telephone) — Student

Esq. Attorney, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 13, 2015

Esq. Attorney — Student

Esq. Attorney — Student

Father — Student

Mother — Student

(via telephone) — Student

Esq. Attorney, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 22, 2015

Esq. Attorney — Student

Mother — Student

Esq. Attorney, — DOE

Introduction: — DOE

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC § 1400 [f][1] and Part 200 of the Regulations of the New York State commissioner of Education. This matter was brought by and ., the Parents (“Parents”) on behalf of , the student (“Student”) through their advocate, from , by filing a Due Process Complaint dated July

16, 2014. , Esq. is the attorney for the Student and , Esq.

is the attorney for the District.

The Parents are alleging that their son, , was denied a free and appropriate public education (“FAPE”) for the 2014-15 school year and is seeking tuition for his unilateral placement at the (“ ”) for said year.

There were seven (7) days of hearings in this matter. Hearings were conducted on October 10, 2014, November 20, 2014, November 24, 2014, December 16, 2014, January 13, 2015, and January 22, 2015. Extensions were granted in this case making the final compliance date April 7, 2015.^[1] A list of Exhibits is attached as Exhibit A. The Parent, the District and the Impartial Hearing Officer all submitted exhibits.

Background:

This case involved a ( year old student. During the 2014-15 school year, attended the where the Student was unilaterally placed by the

Parents.

With respect to the 2014-15 school year, an Individualized Education Program (“IEP”) was developed on June 5, 2014. Pursuant to the June 5th IEP, the following recommendations were made:

2. , time per week, at school;

1 The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering these requests, I weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly requests for extensions of the case compliance date were granted. (Tr. 105; Tr. 129; Tr. 552; IHO-III).

3. , , times per week, for each time; and

4. - , , times per week for each

time. D-1.

The June 5th IEP contained a summary sheet providing for July/August 2014 services which included:

1. approved, , center based, ;;

2. , time per week, at school;

3. , , times per week, for each time;

and

4. - , , times per week for each

time. D-1.

The Parents entered into an Enrollment Contract for with on February 24, 2014. P-K.

The Parents filed a Due Process Complaint on July 16, 2014. P-A. I was appointed as an Impartial Hearing Officer on July 26, 2014. A pre-hearing conference was held on September 15, 2014.

Position of the Parties

Parents’ Case

The Parent called five (5) witnesses, , , ,

, and the mother, and placed twenty-five (25) documents in evidence.

P-A – P-Y.

The first witness was , who is the education

director at and has held this position since the school opened in 2002. Tr. 423.

She is responsible for directly supervising staff, performing functional analysis and assessments, developing and modifying curriculum and IEPs as well as analyzing data.

Tr. 423 – 424. She has a Master’s degree and is certified in special education in New York State and is a board certified behavior analyst. Tr. 424. She has been working in the field of special education for 24 years. Tr. 424. The

. Tr. 425.

There are students in the in the / . Tr. 425.

In the , the youngest student is and the oldest is and in the . Tr. 425. The school is dedicated to servicing children on the utilizing , and , and . All of the students in the school have a diagnosis of with in the area of and , cognitive, as well as social skills. Tr. 426. They utilize a student to teacher ratio. Tr. 426. In a classroom of students, there would be , of which is a head teacher, and and . The head teacher has a Master’s degree and is certified in special education and in addition to that is a .

Tr. 426 – 427. Each teacher in the room must be an instructor which means they must have at least a Bachelor’s degree in a related field dedicated specifically to within the classroom setting. Tr. 427. Some of the instructors also have their Master’s degrees and are certified teachers,it depends on the classroom. Tr. 428. There is also a certified and in every classroom with an , , . Tr. 428. At present, the maximum student ratio in the is . Tr. 429.

The methodology used in the school is , which is the

. Tr. 429.

. Tr. 429. The data is reviewed by the head teacher and by Ms. . Tr. 430.

The instructors are rotated on a minute basis so that each instructor has the opportunity to work with each child during the ; however, each instructor is responsible for graphing the data for one student for the entire year as well as communicating on a with that particular parent. Tr. 430. The communication can take the form of , depending on the preference of the parent. Tr. 431.

There are in the school and they are all certified with an M.S.O.T.R.L. Tr. 432. They have an as well as a fine

. Tr. 432. The has a variety

of , etc. Tr. 433. is delivered on a -to- basis and some students also receive it in . Tr. 433.

The school year at is a month program. The academic year begins in . Tr. 433 – 434.

Predominantly the students in the are receiving times a week of , times a week of , and of . Tr. 434. In addition to the related services, the students are provided with hours of per day.

Ms. gets into the classroom continually during the school day. Tr. 435.

She meets with each instructor time a week for direct supervision where they brainstorm and analyze the data collected. Tr. 436. When she is in the classroom she is able to work with the instructors and the students to modify the curriculum. Tr. 435.

Ms. testified that the staff is trained on how to develop a and a . Tr. 435. The school permits parents to come in and observe their child through live observation or on the computer and can also receive instruction on specific protocols. Tr. 436.

Each classroom has a weekly team meeting, where the , and Ms. can meet. They also have an additional classroom teacher meeting where they discuss strategies. Tr. 436 – 437. Ms. stated that in terms of training, she is in the classroom on a daily basis reviewing protocols and directly training the instructors. Tr. 437. The staff has experience working with

. Tr. 437.

In order to be admitted to the school the child must have a diagnosis of with . Tr. 437. A student would not be accepted if they require a less restrictive or more restrictive environment. Tr. 438.

Ms. is familiar with and states that his application came in during the fall or winter of 2012. Tr. 438. She was involved with his assessment. She stated that he was an appropriate fit for because he presented with , . Tr. 439. began school in April 2013. Therefore, he was at school for three months of the 2012 – 13 school year, the full 2013-14 school year and currently the 2014 – 15 school year. Tr. 439.

In ’s class for the 2014 – 15 school year there are students, a head teacher, instructors and a in the room. Tr. 441. ’s schedule (P-M; P-O)

is a typical schedule. In the they work on (i.e.

, etc.). They do instruction,

. They have education and work on

and

. Tr. 443. In terms of walking

goals; ’s goals include ,

. Tr.

444. When is instructed to

. If he begins to

. Tr. 445. Ms. stated that if is not immediately , part of ’s escalation chain in terms of . Tr. 445. These additional could involve

. Tr. 446. Ms. stated that he would engage in these continuously without . Tr. 446. In education, it is a where they engage in or program. Tr. 449.

With respect to ’s schedule,

. Tr.

451. He is also working on specific work programs

Tr. 451.

Although

. Tr. 452.

. Tr. 458.

Ms. stated that their programs are based on the IEP’s that they prepare for the students, which they prepare using as the assessment tool. Tr. 451. is

-to- for times a week and is -to- times a week and that predominantly is . Tr.

458.

Ms. testified that, in her opinion, needs -to- instruction or teaching throughout the course of the day because he would engage in . He would exhibit

. Tr. 460. In terms of

. Tr. 462. In terms of his , is

. Tr. 462. She stated that without his

. Tr. 463.

Ms. testified that Ms. is a special educator who was ’s head teacher during the 2013 – 14 school year. Ms. prepared the Educational Report from December of 2013. P-B. Ms. stated that in terms of learning styles, this report accurately describes ’s level of non-contextual hand movements,

. Tr. 466. There are also reports from June

2014. P-R; P-S; P-T. In addition,a progress report is presently being prepared for the 2014 – 15 school year. Tr. 466.

In terms of progress from June 2014 until now, based on the DRO, is now able to . Tr. 468. In terms of . Tr. 468. When he engages in

. In terms of

. As of June 2014, he was averaging

Tr. 469. With respect to

. Tr. 470. In terms of

. Tr. 472. He is making consistent progress in

. Tr. 473.

Ms. indicated that the program at has been tailored to meet his needs. First they do a full for each child and from there determine short term objective. Each short term objective is modified in terms of assistance needed and it is systematically faded over time to attain greater independence. Tr. 474. They are working with him to help him and they work on preparing him to get used to new instructions so if a new instructor is joining the classroom environment they would be paired with a previous instructor. Tr. 475. This past summer two instructors were paired all summer and then the new instructors transitioned. Tr. 476.

Ms. testified that the benefits that receives from -to- instruction are the . Tr. 479. She also stated that at this point he needs -to- instruction. Tr.

480

On cross examination, Ms. state that in ’s classroom there are certified teachers including the head teacher and the other instructor has a B.A. in psychology. Tr. 482.

At the present time, is not using the system due to his . He is using . Tr. 482.

She explained that was using the but as you progress through the stages, discrimination tasks become more complicated and he was unable to

. Tr. 483.

With respect to the using this format. Tr. 483.

Ms. testified that the and would be completed for each year after they complete the and reassess baselines of and this is usually done in May. Tr. 484. She doesn’t recall if the and were provided to the Committee on Special Education (CSE) prior to either of the two scheduled meetings. Tr. 485. Ms.

stated that there is an open door policy for parents but no defined once a month program. The is customized based on the parent’s particular needs. Tr. 485. She testified that ’s parents are coming in a week to receive training on the . Tr. 486.

The next witness was . He was the parent representative at the CSE meetings on May 21 and June 5, 2014 and accompanied the Parent on site visits. Tr. 494.

He is a retired social worker. Tr. 498. At the CSE meeting, Mr. testified that the CSE made a recommendation for a program with and , times a week. Tr. 495. He stated that the Parent disagreed with the recommendation because she felt that required more support than was offered. Tr.

496. Mr. stated that at the second site visit, attended and was

. Tr. 499. He

indicated that kept trying to and the Parent

when they were touring the school. Tr. 499.

The next witness was . She is the director of and services at . Tr. 504. She runs the department; co-teaching with the and consults with the teachers. She oversees all of the programming including developing the IEPs and creating and tracking the data sheets. Tr. 505. She started as a at eleven years ago and became supervisor years ago.

Tr. 506. Before that she worked as a at for and a years.

Tr. 506.

Ms. has known since he started in April 2013. is a student so their focus is developing a communication system for him. Tr. 507. He is showing some via and use of an . Tr.

507. The pathologists at the school are fully immersed into the classroom schedule and are responsible for running the room alongside the head teacher so that they can ensure that there is immersed in every activity. Tr. 508.

Ms. testified that has worked hard to learn the for . Tr. 508. She stated that some of his , which in turn affects his , which affect his ability to learn when we presentedwith items in a big field size. Tr. 509.

Ms. stated that ’s is Ms. and she is her supervisor and co-teaches with her sometimes so that they can trouble-shoot different ideas. Tr. 513. The and sessions notes are data sheets that are goals from ’s IEP and are tracked. Tr. 514; P-U. If masters something they bring in a new target for the next week. Tr. 513. They use the session notes to track progress. Tr. 514.

The data sheet for the 2014 – 15 school year has some goals from the beginning of the year and some that were swapped out as a result of progress. Tr. 515. was not the during the summer. It was . began in August.

She came in and spent a day with them so she could familiarize herself with the models and with the student so that there would be a smooth transition. Tr. 516. Although is mandated for sessions a week for ; he is receiving because he has . Tr. 517. Even when something is mastered, he needs to continue to maintain it. Tr. 517. The sessions are . Ms. testified that they have a set number of goals that they work on in a session; however, due to ’s intervening they need the time to teach him and redirect him. Tr. 517. The learns the protocols that are in place through from his classroom teacher. Tr. 518. She is in the classroom and is the leader in the classroom. Tr. 518. The plans weekly curriculum with the teacher, she collaborates with the instructors, especially in terms of protocols. Tr. 518.

Since the June 2014 and Progress Report was written (P-S), has mastered

. Tr. 521. Ms.

testified that the frequency and duration of is important for because he needs it take longer to get him back to task. Tr. 526. She stated that if they reduced the amount of time to a shorter session, the number of goals targeted is going to have to be reduced. Tr. 527.

Ms. testified that most of the goals on the IEP (P-I) were taken from the goals with slight variations. Tr. 537. Ms. testified that within

, if she reduced frequency and duration of services for she would have to reduce the number of goals she was targeting. Tr. 543. Ms. indicated that they go from . Tr. 546. With respect to , if he had downtime, he would start to engage in , and . Tr. 547. Ms. stated that is receiving educational benefit from the program at . Tr. 547.

The next witness was . She is part of the department at and is ’s primary . Tr. 560. She has a Master’s degree in and has her New York State certification and is licenses. She also takes training at . They have department meetings every week and go over different and upcoming new training tools in processing. Tr.

561.

Ms. has known since he began at . He has a number of different needs ranging from to . Tr. 562.

She works with her students on a -to- basis in the ; however, if they are working on . Tr. 563. She has a very integrated relationship with ’s teachers and instructors. They have weekly meetings, team meetings in the mornings and a daily communication book. In addition she gets a brief update and report before she . Tr. 564. She lets the teachers know what skills she’s working on and some of the adaptions that could be utilized in the classroom. Tr. 564.

Ms. testified that of ’s needs relates to his and to deal with this he has both a and a . For his , he works on a number of different activities and points of motion which allows him to reach an optimal level of . These are done at least activity every

. Tr. 565. The teachers administer the protocol as per her instructions. Tr. 566. The is more focused on endurance and strength with his and .

is seen times a week for each time by Ms. , times a week by another and then he’s seen in a group with -to- support.

Tr. 567. He receives predominantly in the . Tr. 568.

The is an

. Tr. 569. uses most, if

not all, of the . Tr. 570. To help with his

. Tr. 572. They also work on

. Tr. 573. They are also working on

. Tr. 574.

Ms. said that he has

Tr. 582.

Ms. stated that the rationale for receiving outside of his classroom is that he

. Tr. 582.

Tr. 582.

From her professional perspective, she believes the frequency and duration of his affects his ability to make progress. She stated that “ ”. Tr. 584. She stated that if there was a reduction in he would not make progress and he would not be able to accomplish what he needs to in order to gain the skills acquisition necessary. Tr. 587.

Ms. stated that the involves skills and is normally an obstacle course of activities. Tr. 585. Ms. ’s supervisor, is leading that group and his teacher is with him. Tr. 585.

Ms. stated that she is not in the classroom with him but picks him and drops him off, entering the classroom, reviewing his chart, catching up on his needs with the teacher and then taking him upstairs. Tr. 588-589. When he returns to the classroom, she gives the teacher a run down of what . Tr. 591. She also meets with the teachers a week in the mornings and then she meets with his case manager to go over different skills. Tr. 589. She also speaks to the Parent at drop off on Fridays and she emails the Parent approximately a week. Tr. 592. She stated that the believes that has received academic benefit as a result of his attendance at and the services she provides. Tr. 593.

On cross examination, Ms. testified that all the students in the get times a week for and either a . Tr. 600. She said that additional sessions are not required because the are on a consult basis continuously throughout the day and the are continuing with the practice skills that the are using in their sessions. Tr. 602. She did not have input into the May 22, 2014 and June 5, 2014 IEP meetings. Tr. 604.

The last witness was the mother. She stated that she had a normal delivery and developed normally. By a year old he was . She described him as . Tr.

609. When he was approximately

. Tr. 612. By

January 2012, he started and . Tr. 613. She could not get anywhere with . Tr. 613. He was diagnosed at . She immediately got him into an program in a week and continued with supplemental .

At , his

. Tr. 615.

The Parent testified that she returned to New York in March 2013 and enrolled him at . Although she looked for a school prior to that time, the age to start was and all of the specific schools started at . Tr. 617. She stated that she was always in communication with the District because the plan was always to return to New York as soon as he was old enough to start school there. Tr. 617.

was evaluated at right after the Parents enrolled him at in preparation for his first Committee on Special Education (CPSE) IEP which was done in May 2013 for the 2013 – 14 school year. Tr. 619. The CSE made a recommendation for a school for the 2013 – 14 school year which the Parent found inappropriate. Tr. 620. He was also recommended for related services times a week for each time. Tr. 620. For the 2013 – 14 school year, attended

. Tr. 621.

On April 24, 2014, the Parent sent a letter to the District requesting a CSE meeting for the 2014 – 15 school year. P-E. A meeting was scheduled on May 22, 2014 and the parties present were: Ms. from the District’s CPSE, Mr. , and the teachers and related service providers from who appeared by phone. Tr. 622.

She doesn’t remember if ’s father was on the phone for both CSE meetings. Tr. 622.

At the meeting, they discussed ’s progress, his needs, his , his goals on the IEP, his at and the Parents concerns. Tr. 623. They reviewed the IEP and all the evaluations from the ,

, and head teacher. Tr. 625. At the end of the meeting, Ms. hadn’t completed the IEP and copying the goals from into the IEP. Tr. 626.

The Parent testified that is

. Tr. 623. His

. Tr.

627. She stated that he also does these things in school but they are working with him and she has seen improvement. Tr. 627. She said it is hard to get him to .

Tr. 623. She has found that the staff at has been working with him on and she has seen progress over the past months. Tr. 624.

At the May 22, 2014 CSE meeting no recommendation for program or placement was made by Ms. . Tr. 627. The Parent testified that Ms. hadn’t decided on placements but that she stated that she didn’t think the Parent was going to agree with her recommendation. She stated that the teachers got off the phone as each one completed their discussion about their reports. Tr. 628. At the meeting, they also discussed the fact that

. Tr. 629.

The second CSE meeting took place on June 5th, 2014 and started at 9:30 and ended around noon. There were three people present: Ms. , Mr. and the Parent. Tr. 630. from was on the phone; she was the and supervisor. Tr. 632. At that meeting they discussed parental concerns and Ms.

’s recommendations. Tr. 638. The Parent was told at the meeting that they had a spot for at the school which was a ratio and that she was going to have them contact the Parent. She also recommended and and , both times a week for each time. Tr. 638. Ms.

also recommended . Tr. 639. The Parent testified that she raised her concerns about travelling . Tr. 639.

The Parent testified that the other concerns she raised at the meeting were more specific than those set forth in the IEP but they broadly covered what she said. Tr. 642.The Parent stated that Ms. and Ms. agreed about what was discussed about at the meeting and what he needed to learn.

started using in the summer of 2012 and is presently using an . Tr.

642. At , attends school days a week from .

Outside of school, the Parent has a that comes in on Saturdays and works with him for as a supplemental program. Tr. 646. They also take a for Tr. 646. They do everything they can to keep him . Tr. 646. He needs to have

. Tr. 647.

At the end of the meeting, Ms. recommended a classroom at . She did not ask Ms. , Mr. or the Parent anything regarding the recommendation, and they didn’t raise objections. Tr. 648. She said at the end of the meeting nothing was resolved. The Parent visited following the meeting and wrote a letter objecting to the program. Tr. 649.

After the June 5th meeting, she did not receive a copy of the IEP. Tr. 649. It was the Parent’s understanding that if the school chosen was approved, could start immediately since Ms. said they had an open spot. Tr. 650. The Parent sent a letter to the District on June 9, 2014 (P-F) with specific objections to the placement, but the District did not respond. Tr. 651. She heard from following the meeting and scheduled a meeting. She sent a letter to the District dated June 16th following her visit to . P-G. Following this she received an e-mail from Ms. expressing her disappointment that the Parent did not take for the school tour. Tr. 652. She then sent a letter to Ms. stating that she did not take on the initial tour since he requires with him present. P-I; Tr. 652.

At the first visit, she went with Mr. . She observed a child tantrumming in the lobby and watched her fall backwards and hit her head. There was no adult present except for the doorman and the teacher. Tr. 654. Following this, Ms. took them on a tour and she was allowed to look in the rooms and classroom. The

. She was told that would be in a ratio. She was told that was not an and they do not do . Tr. 656. She was also told that the the classroom. Tr. 657. Ms. told her that there were not openings during the summer. The tour took approximately . She then wrote a letter to the District objecting to the program. Tr. 667; P-I.

She returned to the school on July 30th with Tr. 659. The Parent indicated that the reason the second meeting took place so long after the first was because she did not hear back from Ms. until after July 4th. Tr. 659. She also told Ms.

that she was told by Ms. at the initial meeting that they did not have any openings until September. Tr. 661. The Parent wrote a letter to Ms. on July 30th following the tour raising her objections to the placement. Tr. 661. At the second meeting, Ms.

, the Parent, , and Mr. met downstairs and were taken to the floor. They looked into the classrooms but were not allowed to enter them. Tr. 662.

’s during the tour was distracting for the Parent. Tr. 662. After the tour, they went into Ms. ’s office. The Parent testified that she tried to keep in control but he was distracted and she was trying to . As a result, the Parent had difficulty engaging in conversation with Ms. . Tr. 663. Ms. asked the Parent about ’s current program, what

. The Parent indicated that Ms. did not engage at all. Tr. 664. The Parent testified that Ms. confirmed that she did not have a spot available until September 2014. She did not provide the Parent with any additional information about the school or program. Tr. 665. The next day the Parent received an acceptance letter from Ms. . Tr. 666. The Parent’s objections to the District’s placement at the school were based on the decrease in services including the student to teacher ratio. Tr. 667. The Parent stated that she is asking that be given what he was currently receiving which included of and times a week with a -to- ratio and an protocol and a week. Tr. 668.

The Parent testified that the contract was signed by ’s father on March 11, 2014 and that he is paying for at this time. P-K; Tr. 668. She stated that she did not request a contract; it was sent to her. Tr. 669. She knew that the deposit was nonrefundable. Tr. 670. She stated that she believed the CSE and CPSE had different timelines than . Tr. 669.

On cross examination, the Parent indicated that at the May 22nd CSE meeting, it appeared that each teacher or from was called in as needed. Tr. 671.

She believed that when Ms. finished going over the reports with a particular provider and she had no more questions, they would go off-line. Tr. 672.

The Parent testified that the reports from were accurate representations of where was at the time of the meeting and Ms. was relying on these reports in drafting the IEP. Tr. 676. The Parent testified that in terms of the recommendation, she would disagree with less than per week since that was what was recommended by his , Dr. . She stated that was receiving that amount and was making progress. Tr. 677; Tr. 684.

The Parent testified that the reason there was a second meeting was because they were not finished. Tr. 672. Although Ms. was present at the June 5th CSE meeting, her interaction was minimal because it was mainly about Ms.

completing the IEP, the parental concerns and her making her recommendations. Tr. 679.

The Parent testified that she confirmed that goes by an protocol. Tr.

683. She also asked about the presence of a on staff and she was told that there is a consultant who is not employed full-time and she supervises programs for over 330 students. Tr. 683.

In terms of ’s plan and program at , the Parent stated that it is constantly changing and being re-evaluated based on communication in school and outside of school and the tracking of data. Tr. 685-686. For instance, started in February of 2013. He started out being and it has increased to every based on tracking to allow for .

Tr. 687.

District’s Case

The District called three (3) witnesses, , and and placed eleven (11) documents in evidence.

The first witness was who is currently employed at ( ) as an intake coordinator. If a child is referred from a CPSE or Central Based Support Team (CBST) administrator, she reviews the file and potentially schedules an intake for the new students. Tr. 49. She has been in that position for a year and a half. Tr. 50. is a non-public school for preschoolers and students ages . Tr. 51. Ms. stated that when she sets up an intake meeting, she tells the parent that the child and the parent both have to come in for an intake to be considered for the program. Tr. 53

She is familiar with because he was referred over the summer by a CPSE administrator. Tr. 54. They initially scheduled an intake appointment in time

(approximately June 19th) and the Parent came without the child and then an intake occurred with the child in July. Tr. 54. In June, Ms. showed the Parent the floor including the classrooms ( and ) and the movement room. Tr.

55. The students in the class should have been to years old. Tr. 55. It includes students, a head teacher, and teaching assistants. Tr. 56. Also and services are done so those are in the classrooms as well. Tr. 57. Ms. stated that students go in the movement room for a day for activities. Tr. 57. She stated that the tour in June took approximately . Tr. 58.

has four floors in the building and the is on the third floor. Tr.

59. Presently, there are students in the program and students overall up to age . Tr. 59; Tr. 73-74. The students do not interact with the other students. Tr. 59. Ms. did not recall if the Parent had any questions at the end of the tour nor whether there was room for the Student in the classroom. Tr. 61. She wasn’t sure if the class that she showed the Parent was the classroom that existed already for the 2014-15 school year. Tr. 61. When the Parent visited in June, it would be considered the 2013-14 school year. Tr. 62. is the methodology of instruction that is used at school-wide and for the provision of related services. Tr. 63. The runs from , to . Tr. 63. The purpose of bringing the child in for intake is so that one of the directors get to meet the student and consider him/her for placement after referral by CBST or CPSE and also to see which class ratio would meet his/her needs. Tr. 64; Tr. 74. was offered a place in the school after his

July intake. Tr. 65. Ms. testified that he was offered a place for September. Tr. 63.

Ms. testified that he was not offered a place from the time of his intake because “probably at the end of July we were already full”.

On cross examination Ms. stated that when she first reached out to the Parent she had the student’s IEP and progress reports from his current placement. Tr. 66. Ms.

stated that she and Ms. , the director reviewed the paperwork and invited the Parent for an intake. Tr. 66. In June at the meeting, Ms. was present, and in July it was both Ms. and Ms. for the tour and only Ms. for the intake interview. Tr. 67. The Student and Parent toured the and met in Ms. ’s office on the school floor. Tr. 67. There are classes in the . They determine where to put each child at the intake. Tr. 71. Ms.

wasn’t neither aware of the qualifications of the head teacher nor teaching assistants nor whether any were certified as . Tr. 72. A master teacher supervises the head teacher. Tr. 72.

Ms. testified that when the students

Tr. 77. There is a video

recording in the hallway and classrooms so that parents can observe without being in the classroom and for data collection. Tr. 78. The maximum number of students they can have in the is and they have . Ms. isn’t aware how many students are Tr. 80. She is also not aware whether another adult replaces him/her when an adult goes to the bathroom with a student. Tr. 80. Data is collected through video and on paper during the day. Tr. 81. Ms. stated that she believed data is collected based on the student’s IEP goals by the teacher and teaching assistants. Tr. 82. Ms. stated that a good amount of the students need She also stated that does not administer . Tr. 83. As intake coordinator she is not in the classrooms. Tr. 85. When deciding if a child is appropriate at intake they look at level, ability of the student, how advanced or not advanced the goals are, etc. Tr. 88. They are approved for a class but presently only have and classes. Tr. 89.

Ms. is the person that sends the acceptance letter but she doesn’t prepare it. It is prepared by the CPSE administrator. Tr. 90. The classrooms at are known as the ). Tr. 90. Ms. stated that the Student was accepted for September 2014. Tr. 91. The acceptance letter goes out right after the intake or the day after. Tr. 91-92. During the intake the conversation is predominately with the parent and that gives the director an opportunity to observe the child. Tr. 93. After the intake, there is a meeting between the director and Ms. and sometimes the medical director. Tr. 95.

Ms. testified when asked when ’s enrollment begins for ,

“

” Tr. 96.

On recross, Ms. stated the

. Tr. 101. There are

. Tr. 102. There are

. Tr. 102. Ms. also indicated that they do

a month. Tr. 106.

The next witness was . She works as an administrator at the Region

CPSE and has been there for four years. Prior to that she worked as a teacher assigned at CSE and for many years as a special education teacher. Tr. 144. She has an elementary education certificate and a special education certificate from New York State.

Tr. 144. She also has her administrator’s license. Tr. 145. As a CPSE administrator, her job is to make sure a referral gets processed for an intake meeting. She reads through the evaluation process and arranges for a meeting to take place, goes over the draft of the IEP that the evaluation agency created, gets parent input, discusses goals and makes recommendations. Tr. 146. The parties at this meeting are the parents, the evaluation center, any other parties the parent wants to bring and the administrator. Tr. 147. There are also reconvenes, when the parent has new information regarding the student and believes that something needs to be modified on the IEP. Tr. 148. There is also an annual meeting where Ms. receives reports from all providers and goals based on progress. Tr. 150. The parties present at this meeting are the parents and Ms.

and anyone that the parent wants to bring. Tr. 151. She usually conducts about 600 meeting a year. Tr. 151.

Ms. is familiar with She held his initial meeting in 2013 and had meetings for the annual review in 2014, in May and June. Tr. 152. For the May 22, 2014 meeting, she requested reports from and prepared a draft of the IEP from the reports given to her. Tr. 153. At the May meeting, the following people were present in person or by phone: the mother; , advocate from & Associates; and , teachers; , ; and

, . Tr. 156; D-1. The reports that Ms. obtained from were at the meeting as well as a draft of the IEP that she developed. Tr. 157.

The reports that she used to create the IEP were to months old. Tr. 157. The reports that were utilized included the Educational Progress Report dated December 13, 2013 (D-7), Report date January 2014 (D-4). Ms. marked up the reports at the meeting and the IEP to bring them up to date. Tr. 160; D-3. With respect to the May 22nd IEP, Ms. read the IEP and was given changes by the teachers and Parent. Tr. 163. She stated that she checked off that the child needed a . Tr. 164. She said that indicated that a new was going to be written in August and the that they had in place expires in June. Tr. 164. She did not receive the new but did subsequently receive the old . Tr. 165. She stated that she never prepared a because she didn’t have the information from the and is not a psychologist and didn’t have access to the at the time of the meetings. Tr. 166. She stated that if she had a viable and current plan, she would have written it up and included it on the IEP. Tr.

166. She said stated that they were currently working on the plans with all of the children and would be sending it to her in July. Tr. 166.

Ms. testified that the first thing they did at the May meeting was review the present levels of performance. Tr. 168. She stated that they talked about ’s . They discussed what they were working on academically and what his ability level was for that. Tr. 169. Although she asked for social information, they had a lengthy description of his

. Tr. 169.

There were a lot of changes to the section of the IEP regarding how he . Tr. 169. She realized she was missing the goals and advised her that they would scan and send them to her at the meeting; however, they ran out of time so she agreed to make the changes at the second meeting. Tr. 170.

Ms. reconvened the CSE meeting on June 5, 2014. D-1. Between the May 22nd and June 5th meetings, Ms. made modifications to the IEP and included her handwritten annotations. Tr. 173. All of the goals came from the reports from the service providers and from their oral reports at the May meeting. Tr. 175. They reviewed all information on the IEP at the June meeting and changes were made including intervals. Tr. 178. At the June meeting, a lot more information was given to Ms.

about parental concerns. Tr. 178. Specifically, the Parent talked about her concern about

’s

. Tr. 179. She also indicated that he is

. Tr. 179.

Ms. testified that according to the Parent, she was seeing progress with some . She stated that the Parent is concerned about . She also indicated that he . Tr.

180. The Parent was also concerned about his

. Tr. 180.

With respect to the academic section of the IEP, Ms. testified that the first deficit was . He is able

. He

. Tr. 182.

He has

. Tr. 182. Ms. indicated that pragmatic goals focused on improving his . Tr. 182. She

also indicated that he has . Tr. 182. She stated that his feeding has improved and he was . Tr. 182. He is also able to use and can make

Tr. 183. She stated that he is working on . Tr. 183.

To address his deficits, Ms. testified that goals were created. Tr. 183. For instance, with respect to . Tr. 184. It also states in the IEP as a goal that the Student will improve his ability to follow directions. Tr.

186. Ms. stated that there are also other based goals in the IEP including . Tr. 189. For instance, since he is not to address this.

Tr. 191. There are also goals to improve production including . Tr. 192. There are also other goals associated with . Tr. 194. of the goals indicates that he will play with . Tr. 194. This is important for because he needs to translate what he knows in his own classroom to other scenarios. Tr.

195. There are also additional goals relating to

. Tr. 196.

There is also a goal regarding addressing

Tr. 202 – 203.

Ms. stated that the Parent was concerned about the Student’s . Tr. 203. She indicated that throughout the CSE meeting, they talked about the

.

Tr. 205. She stated that of the

Tr. 205.

Ms. testified that at the May 22nd CSE meeting, she spoke to the Parent about parental goals and her concerns. Tr. 207. She also indicated that the inclusion of is related to the parental goals and concerns. Tr. 209. Ms.

testified that the Parent wanted .

Tr. 210. Ms. testified that the on the IEP were obtained by through the reports. Tr. 210.

At the end of the June CSE meeting, Ms. testified that was recommended for an approved program with a ratio of . Tr. 214. She stated that this was “ ” stated that the related service providers were at the May meeting, not the June meeting and did not agree with the recommendations. Tr.

214. stated that the recommendations from were given; however, they don’t provide as many services in the District. Tr. 215. She stated that they consider it too restrictive and make sure sessions are given in minute intervals and that the providers come into the classroom. Tr. 215. She stated that with respect to the “the sum is greater than its parts” which means that the talk to the classroom teachers and follow the same procedures and goals so they in essence are given related services all day long. Tr. 215. When the program was discussed at the June meeting, Ms.

stated that the Parent was not in agreement and wanted a program which Ms. found too restrictive. Tr. 216. Ms. testified that she has never been in a classroom at . Tr. 217. The program recommended by the CSE was for children, teacher and . She stated that the are trained by the teacher. Tr. 217. Although related services are , there is no program in the District; however, when the related services , that reduces the ratio of teachers to students. Tr. 218. The in the classroom are assigned to the class not to individual students. Tr. 219. This program is in a private, state approved . Tr. 220.

Ms. stated that the program was starting in September because “the [District]” starts their programs in September”. She stated that she did recommend month services for so the students finish their program for weeks in the .

Tr. 221. She made the recommendation for a recommendation for because he “ ” Tr. 221. She believed he could make academic and social progress in the recommended program. Tr. 222. She based her knowledge of on the reports from the staff. Tr. 223. She stated that at he was receiving a lot of methodology; however, the District does not prescribe to methodology 100% of the time for any given child. Tr. 227. She stated that the District uses but she doesn’t think it’s as tightly and structurally controlling as .

Tr. 227.

On cross examination, Ms. testified that the recommendation on the June IEP for the 2014 – 2015 school year was her recommendation. Tr. 229. She stated that as a CPSE administrator, she makes the recommendation. Tr. 230. She indicated that the last time she taught an child was seven years ago. Tr. 232. Ms. testified that she received a copy of ’s IEP from at the May 22nd meeting and used it at the meeting in helping developing goals for the 2014-2015 school year. Tr. 235; D-10;

D-11.

At the May 22nd CSE meeting, Ms. stated that they never discussed how many hours he was in school at and she never asked. Tr. 237. She then stated that she was aware that he was receiving hours of instruction. Tr. 237. At the June meeting, , the supervisor was the only person participating from .

Ms. testified that she discussed the and goals with the respective at the May meeting but they were not at the June meeting. Tr.

240. She stated that she took into account what they said and reviewed the goals at the June meeting. Tr. 242. She stated that some of the goals were too detailed so she left out some information between the May and June meeting. Tr. 242. She stated that she did not leave out goals but in some instances summarized or paraphrased. Tr. 243.

Ms. testified that the IEP does not contain all of the detail in the reports. Tr. 248. She also stated that she did not create a since that was something was providing to her. Tr. 249. She did state that she had the that expired in June 2014 at the meeting. Tr. 249; D-9. She stated that she received it after the May meeting but before the June meeting. Tr. 249. She stated that they didn’t want to discuss changes to the , and said that they would send a new one once it was written. Tr. 251. She stated that she contacted the after the June meeting but they didn’t send the new Plan. Tr. 253. She stated that she gave , specifically Ms. , the old , as well as the other reports from . Tr. 253 –

254. She stated that is was necessary for Ms. to meet before making a decision as to whether the school was appropriate for him. Tr. 254.

Ms. stated that she thought the length of the school day at was to hours a week which was less than the hours he was at and the related services were less as well. Tr. 257. She also indicated that whether the related services were was up to the . Tr. 257. She did not visit , the school she recommended, nor did she visit . Tr. 258. She did not do an observation of at school or at . Tr. 259. It was her understanding the would be ready for for the 2015-2016 school year. Tr. 259.

Ms. stated that the Parent and indicated that there were certain that were concerning to them including . Tr. 261. She stated that indicated that “ ”

“this has to be done on a basis”. Tr. 265. She said the did say she wanted for the services. Tr. 265. At the May meeting, Ms. made notes on the Educational Progress Report (D-5) which stated that “he requires a school program, not only to learn new skills but to help maintain and generalize learned skills across environments”. Tr. 266. She stated that she disagreed with that because the District, on the CPSE level, only offers weeks in and has nothing to offer regarding that. Tr. 267. She stated that she “[didn’t]

believe in such a tight, restrictive program”. Tr. 267. Based on the information she received, she stated that she believed adult can manage students and pay attention to both of them at the same time when is Tr. 268. She expected that the majority of the students in ’s class at would be . Tr. 271. Ms.

testified that she made the recommendation of because “ ” the [District] can make”. Tr. 271. She said she is bound by the limitation from the District but also believes in it. Tr. 271. She also reduced his related services from days a week to and from to . Tr. 272. She stated that her rationale for this was that she believed that the special education teachers are instructed to follow through with what the are teaching. Tr. 272.

Ms. testified that was entitled to a month IEP. Tr. 275. On the IEP, it states that the projected date of implementation is September 1, 2014. D-1. On

Exhibit D-1, page 1; however, it states that there is going to be month services for July and August 2014. Tr. 276. Ms. stated that is should say 2015. Tr. 276. Ms.

stated that the timeline for a student is September through August. Tr.

275. She is not sure when a student would start because it would be based on a CSE review. Tr. 279. She stated that the school year started in September and there isn’t space for a child to start in July because the kids from the year before are sitting in those seats. Tr. 280. She stated that when she prepared the IEP she was under the impression that the student would be in until August for the 2013 – 2014 school year even though the expired at the end of June. Tr. 282. She stated that it was her understanding that the Parents understood that the program was starting in September. Tr. 283. She wasn’t sure if she explained that the summary page was wrong.

Tr. 284. Her practice is to make a copy of the IEP including the summary page and give it to the Parent. Tr. 287. No goals changed at the June meeting except for the goals added at the end with respect to the Parent (D-1, page 22). The rest of the goals came from the reports and May 22nddiscussion. Tr. 286.

On cross examination, Ms. testified that she knew that after the summer, if he went to the recommended school, he would be in an entirely new environment with new teachers, new , etc. She doesn’t remember if were discussed at the CSE meeting. Tr. 289.

Ms. stated that at the end of the meeting the participants all shouted out their recommendations with respect to related services and it was very disorganized. Tr.

291. She stated that hours of instruction was not discussed at the May meeting.

Tr. 292. She indicated that the May meeting was incomplete and a lot of modifications were made. Tr. 290. She stated that that is why she went over everything at the June meeting. Tr. 290. She said that when placement was discussed, they cannot place a child at or another non-approved private school. Tr. 291. She stated that the Parent would have to follow the procedure of filing an impartial hearing request, which she is presently doing. Tr. 291. She stated that when discussing present levels of performance and goals, the amount of hours of program or length of sessions is normally not discussed. Tr. 295. Ms. testified that the has a program and it is the most restrictive and the District does not have this program. Tr. 303. She stated that she believes it is too restrictive.

Ms. stated that she didn’t know what the qualifications of the in were. Tr. 297. She did state that from her past experience, do not have to start with a college education but with training and then were to achieve a college degree by a certain time. Tr. 296. She stated that the director of the school supervises the special education teacher and the special education teachers supervise the . Tr. 298.

The last witness was . She is currently employed at as the director of and education and has been there since 1999. Prior to that she served as a teacher at a private school funded by the District with the same population. Tr. 316-317. She has Master’s degrees in special education and supervision and administration. Tr. 316. Her role is to oversee the program, meet with parents, teachers, do intakes, trainings, screenings, etc. Tr. 318. It is a private funded by the District that services children on the and is behaviorally based and uses , and it is approved by the District. Tr. 318 – 319. Most children are diagnosed with when they come in and then at are diagnosed with . Tr. 319. The school goes up to age or . Tr. 319. There are students in the and in the and program. Tr. 320.

In the they have a month program which is a based program. Tr. 320. They have ratios: ; ; and . Tr. 321. They determine what ratio a student belongs in on an individual basis. If is an issue and the child needs skills broken down into -to- , they are put in a program. If they are able to learn from another student and do a bit more socialization then it’s an class, and if they are able to learn in a group setting, it’s a program (which is more like a typical ). The assistants all have to be certified assistants and all have college educations. Tr. 322. Some are level and some are level . Tr. 323. In terms of the intake review, a packet is sent in and is reviewed by Ms. , the intake coordinator and then a paper review is done by Dr.

, the medical director. Tr. 323-324. He is the director of but is at days a week and is responsible for meeting with families and doing intakes and doing paper reviews. Tr. 325. He is a and his role is to see if the child is appropriate. Tr. 325. After he reviews the documentation, it is handed back to Ms.

and she schedules an intake with the parents or she communicates with the District as to why it is inappropriate. Tr. 326. For the intake meeting, the child and parent should be present. Usually, Ms. does the tour and Dr. or another doctor, or Ms.

does the intake. Tr. 328. After the parent is given the tour, the person at the intake asks questions about the potential student and the parent would ask questions as well. Tr. 330. The intake person basically asks about the child, what he likes at home, whether he is on medication, what he is doing in his current placement, what the parent’s main concerns are, etc. Tr. 331. They also have current evaluations of the child and the student’s last IEP. Tr. 331. No testing is done. The meeting takes approximately an hour to an hour and a half. Tr. 332. The child in question goes on the tour. Tr. 332. After the parent leaves, they go over the paperwork as a team, look at their board to see where they have vacancies and decide if there is an appropriate placement for the student. Tr. 333.

Ms. then sends an approval letter to the parent and the District. Tr. 333. If the parent accepts, there is a CPSE meeting and is put on the IEP or the District is notified that the parent did not accept. Tr. 334. A is a less restrictive program because it’s a public school.

Ms. became familiar with the Student at an intake over the summer. Tr.

336. Ms. and Ms. were present, Dr. was not. Tr. 336. She stated that she “had a feeling” the Parent wasn’t interested in the program. Tr. 338. The child was recommended for a program because he had and he was not . Tr. 338. The setting is the only setting for those . Tr. 339. Ms. stated that she felt that the ratio would provide the appropriate amount of support for the Student’s needs when she observed him. Tr. 339.

She stated that they are a model so with the related services, on a given day, there could be a ratio of -to- in a classroom. Tr. 340. They follow the most recent IEP for the Student and the specific related services indicated; however, they can alter that.

Tr. 340-341. Since it is a based program and everybody is working on the same program, a , or teacher might provide a related service for generalization. They generally come together as a team and decide what’s appropriate for their setting. Tr. 341. Since there are discrete trial programs, a might write the program but everyone in the class is trained by the to do . Tr. 341. The school provides a month and it’s held by a . A lot of these trainings deal with questions parents are having at home, things they would like to see, issues, etc. Tr.

342. Ms. indicated that the school uses the system and they are able to use it in the way described in ’s June IEP. D-2; Tr. 345. Ms. stated that is used in a program and it is a thing so it can be sent and allows the student to express his wants and needs. Tr. 346. Parents are trained in how to use and they also have cameras in school so parents can observe how it is used in the classroom setting. Tr. 347.

Ms. testified that the “ classroom is basically spent in -to- instruction for about hours a day”. They also have . Tr. 348. The students travel to

. Tr. 349.

. Tr. 349. If a child needs a

. Tr. 350. There is a rotational system and whoever is working with the child at that time would take him/her for a break. Tr. 350. In a class, the teacher would create the schedule and she would divide the people by half days. Tr. 350.

Therefore, they work with student a day and another the other . Some kids are doing . Tr. 351. This schedule is coordinated with the mandated schedule. Tr. 352.

is a and

. Tr. 353. They have an agency wide system

which is part of and . Therefore, if a child is , they get an . This is basically the program, which falls under the umbrella of . Gr. 353. The does trainings a week with the classes. Tr. 353. Some of the teachers are in the process of getting their so they have additional training. Tr. 354.

Based upon ’s June 2014 IEP (D-2), Ms. believes that the student would be appropriately placed at . Tr. 355. In terms of , it’s very . Tr. 356. The section of ’s June IEP lists some . She stated that that is something they are able to handle. Tr. 358. They deal with on an individualized basis and use an

) sheet and they write down what is going on before the child displays the , what the is like and what was the consequence of the . Based on that, they come up with a plan. Tr. 359.

Ms. said the students do not usually come in with a in but they would follow if the student had . Tr. 360. The school also provides . Tr. 360. There is a team including the , , and . Tr. 361.

Ms. testified that based on the population of students in the program, she thinks was in the appropriate functional setting and that he would make academic progress. He could not, however, answer whether the Student could make social progress. Tr. 367.

On cross examination, Ms. stated that the hours of for preschoolers is , which is hours a day. She stated that a student in a classroom has -to- instruction “ ”. Tr. 372. She indicated that they are with a group of children when they do a but they are still basically -to- since there is basically watching child. Tr. 373. Each child receives -to- a day and is throughout the day. Tr. 373. Some providers are employed by the school and some are contract providers. Tr. 374. There is not or assigned to a classroom for an entire day. Tr. 374. The or for each child may be different and they are coming and going in and out of the classroom. Tr. 375.

Ms. stated that Ms. gets the packet from the school and she doesn’t see it before the intake. Tr. 376. Ms. reviewed ’s packet before the intake.

Tr. 376. Ms. stated that a child may not be appropriate if they do not have a spot in the right class. For instance, if there is only a spot in a 10:1:1 class and a nonverbal child who is not toilet trained is at the intake, the school would not be appropriate at that time. Tr. 380. There may also be something medically that they are not able to provide.

Tr. 380. None of the students in the program have -to- aides. Tr. 380.

She also does not know if any of the students receive or related services outside of school nor does she think any do receive services. Tr. 380-381. She stated that usually Dr. meets with the parent and child at the intake but he is not available during the summer. Tr. 382. A decision cannot be made about admission unless the child is present. Tr. 382.With respect to the child they are just “ ” him/her to see if the paper matches the student. Tr. 384. For a class a good fit would be a child who needs assistance with toilet training. Tr. 384. Ms.

remembered that at the intake, was not being very related, not using any , and displaying some . Tr. 395. Ms. testified that the school has multiple classes and had in July 2014. Tr. 388. Usually the students come into the classroom at different times since there is an early admission policy so you can begin at any point during the school year. Tr. 389. If a child has an evaluation from the District they can recommend an other than . Otherwise it is not done through the program. It has to go through the District because they fund the device and they do the training on it as well. Tr. 390. None of the create for the students in the program. Tr. 390.

They are an program and are not so basically have very little

. Tr. 391. She stated that there is nothing in their that is basically . Tr. 391. In

. Tr. 391. There is an open door policy and parents observe in the classrooms. Tr. 392. If a parent wants to view a video of the classroom, it can be set up. Tr. 393. There is person designated for the , children, teachers and assistants. Tr. 394. There are staff related service providers and contract ones. Tr. 395. There is also a a week training for staff. Tr. 395.

Ms. testified that there are students at the school that exhibit

. Tr. 395. Typically, there is not

a . Tr. 397. None

of the students in the class receive more than of or . Tr. 399. Some students receive or more than times a week. Tr. 399. Data for are conducted during the day and the staff is also in the progress notes. Tr. 400. At the end of the day, they take all the data and graph it and the analyst comes up with a chart for the classroom and reviews for progress. Tr. 401.

Ms. does not recall if the summary page of the IEP (D-1) was with her at the time of the intake. Tr. 401. She also did not recall if it was a month IEP. Tr. 402.

With rolling admissions, the month program starts a year after the date of the prior IEP for CPSE. Tr. 403. She stated that although the school year is different for all kids, it goes through August and then resumes in September. Tr. 403. If a child is in , the IEP starts in July. Tr. 403. At the time, Ms. was reviewing the June IEP; she did not recall that had summer services. Tr. 405. There was a seat available when he came for the intake but there was no acceptance until September 4, 2014. Tr. 405; D-2.

Ms. testified on cross examination that there is always “a line of sight, and the teacher should have a line of sight on all students”. Tr. 410. made clear that “they are approved through State Ed only to allow what we’re approved for, and that’s a , and and a . If they need a -to- , they [would] probably say this wasn’t an appropriate setting for them if they agreed and they needed a -to-

. Tr. 412.

Findings

Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C.

1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme court in School Committee of the Town of Burlington

v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]).

Prong 1 – Appropriateness of District Program The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent.

Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma CitySch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2dCir. Aug. 16, 2010]; E.H. v. Bd. Of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F.

Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak

v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see, Rowley, 458 U.S.

at 189). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989]

[citations omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …affords the student with an opportunity greater than mere ‘trivial advancement’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v.

Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see, Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Childwith a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

The Parents allege that the District did not comply with the procedural requirements of the IDEA. In the Impartial Hearing Request (P-A), it states that “the CSE team was not duly constituted according to IDEA 2004 Section 1414(d)(1)(B) i. A special education teacher from the CSE was not present for the meeting; ii. The individual listed as the district representative from the CSE did not meet the necessary criteria as defined by applicable federal and state education law. iii. Team members were not present for the whole meeting, including when recommendations were made.”

At the May 22, 2014 meeting, the parties present included: , who was designated as the special education teacher on the IEP; the mother; , CPSE

Administrator/District Representative; , Parent representative; , ; , classroom teacher; , .

Ms. , Ms. , Ms. and Ms. appeared by phone. According to the testimony of the Parent, each party provided information about their school reports and then were dismissed from the CSE meeting. I credit the testimony of the Parent and Ms. that no placement recommendation was made at the May 22 meeting, nor was their input regarding placement solicited by Ms. . In this regard, Ms.

testified that the recommendation on the June IEP was her recommendation. She testified that as CPSE administrator, she makes the recommendation. Tr. 229-230. At the second meeting, the parties present included: the Parents; Ms. ; Mr. ; and Ms.

. D-1.

Although the team was properly constituted, the team members were not present for the whole meeting on May 22, were not present when placement recommendations were made on June 5th , and were denied the ability to participate in the decision making process. An IEP should be prepared by an informed multidisciplinary team, and Ms.

denied the Parents meaningful participation.

The Parent also alleged in the Impartial Hearing Request that “the school ( ) does not have an opening until September and [ ’s] IEP is for a month program.” P-1. In this regard, the summary page of the IEP (D-2) provides for a “ approved program, , and related services of - , ( ), , ( ), and , time per week for July/August 2014. Based on the testimony of the Parent, the recommended placement at was not available until September despite the fact that ’s placement began in July. I credit the testimony of the Parent in this regard that Ms.

told her that there were no openings during the summer at her first visit. Tr. 657. Infact

Ms. ’s testimony was that was accepted for the program for September 2014 and that is when there are the most vacancies because the students graduate in August. Tr. 96. Ms. also testified that the school year starts in September and that there isn’t space for a child to start in July because the students from the previous year are sitting in those seats. I find Ms. ’s testimony lacked credibility when she indicated that the summary page was wrong and she didn’t remember if she advised the Parents of this. In addition, she testified that she was under the impression that the student would be in for July and August. Tr. 283. The acceptance letter that was sent to Ms. and placed in evidence by the District indicated that was accepted for for September 4, 2014 based on his June 5th IEP; no mention was made of the summer. D-2. Based on the foregoing, I believe that the District did not provide the Parent with a timely placement since the placement was not available until September despite the fact that they were required to provide the Student with a month placement encompassing July/August of 2014.

In addition to the foregoing, the IEP provided that “

” “Student

need[s] a ”, yet, none was prepared. The IEP provides that it would be prepared in July. Ms. did testify that she received the that had used for the 2013-14 school year and went through the child’s issues and goals at the CSE meeting, yet no was prepared. In a recent Second Circuit case where a included target and supports to remediate but did not identify supports for specific , the court held there was a procedural violation despite the fact that the CSE indicated that it would be more specific the student was placed. C.F.vs. New York City Dept. of Education, 746 F3d 68, 79. (2d Cir.

March 4, 2014). In the instant matter, the CSE did not include any , nor did they conduct a , despite the fact that had utilized a for the 2013-14 school year and Ms. indicated that she had that after the May meeting but before the June meeting. The fact that was preparing its for its students in July should not have prevented the CSE from developing its own plan for based on the reports and information presented at the May and June CSE meetings. This would have been important for since he was mandated by the IEP to receive placement and services as of the beginning of July.

Substantively, I have reviewed all of the testimonial and documentary evidence in this matter. Clearly, the central issue is whether the District provided this child with FAPE for the 2014-15 school year. The CSE recommended a ,

, ; - , , times a week for each time; , , times a week for each time; and , time per week. The IEP provided for a month program and indicated that the Student will receive the same special education program/services during July and August as recommended during the school year. D-1. It also indicated on the IEP that the Student needed a . D-1. Although Ms. included and updated the information on the IEP to include all of the new reports from the teachers and service providers from , as well as the goals provided by them, her placement recommendations were not reasonably calculated to provide educational benefit to meet this child’s needs, nor could the goals be achieved in the District’s placement. Based on a review of the hearing record and the severity of his including of the Parent witnesses that required a placement at this time, the placement provided by the District was not reasonably calculated to meet his unique special educational needs. Although Ms.

testified that both the Parent and the teacher and related service providers from indicated that there were certain that concerned them including that no one stated in terms of his behaviors that “this needed to be done on a basis.”

Tr. 261-265. She did, however, indicate that the Educational Report from stated that “he requires a treatment in a month school program, not only to but to help across environments.” Tr. 266; D-5. Ms. did, however, testify that she made the recommendation for a program because “ and [she]

wanted to make sure he was in the most restrictive setting that [they] can give…” Tr. 221.

She also testified that she based her knowledge of on the reports from the staff. With respect to the recommendation on the June IEP, Ms. testified that that the related service providers were at the May meeting and not the June meeting and did not agree with her recommendations. Tr. 214. She stated that the District does not provide as many services as and that although the related services are , there is no program in the school and that there are in the room and they are assigned to the class not individual students. Tr. 219. With respect to the program itself, there was a letter from Dr. , who conducted a evaluation indicateing that requires an of as well as related services. P-Q. In addition to the classroom program which the Parents and believed needed, the and in her report (P-S) indicated that required sessions of at each session and the in her report (P-T) indicated that required sessions of at each session and minute session in a , Ms.

, utilizing the reports and goals prepared by the staff, determined that sessions of and at a session were sufficient without explaining how this was determined. In fact, Ms. , his teacher testified that the frequency and duration of services for is important because he needs , it takes time to . Tr. 526. Ms. , of his , testified that “ , [she] thinks that is the appropriate time for ’s sessions and times a week”

“

” Tr. 716. In addition, with respect to transportation on the IEP, based on his , was not sufficient and required

.

For all of the foregoing reasons, I find that the District did not provide FAPE to for the 2014-15 school year. Hence it is necessary to consider Prongs 2 and 3.

Prong 2 – Appropriateness of Parent Placement

Under the second prong of Burlington, the Parents bear the burden of proving the appropriateness of the Parents’ unilateral placement of at . In order to meet that burden, the Parents must show that offered an educational program designed to meet ’s special education needs. Burlington, 471 U.S. at 370; M.S. v.

Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112. “To qualify for reimbursement under the IDEA, 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.”

Gagliardo, 489 R.3d at 112, See, Frank G., 459 F.3d at 364-65). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010). The courts have held that the test for the parents’ private placement is that it is appropriate and not that it is perfect.

Frank G., 459 F.3d at 364. It should be noted, however, that while evidence of progress is relevant, it does not in and of itself establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the

IDEA”].

The Parents have met their burden in showing that was an appropriate placement for The staffing in ’s class with master teacher and instructors allows for -to- instruction throughout the day. He also is provided with the related services of both and times a week for each time. There is evidence from his teacher and service providers and the Parent that he has made progress while at . The school will only admit students who have a diagnosis of with . Ms.

testified that is an appropriate fit for because he presented with

. Tr. 439. Ms.

further testified that requires and gets instruction throughout the course of the day due to his engagement in . Tr.

460. The instruction is appropriate to address his needs at this time, and, therefore, is not too restrictive. It should be noted in this regard that parents are not held as strictly to the LRE standard as are districts, however this criteria may be considered in terms of an entitlement to an award of tuition reimbursement. (Rafferty v. Cranston Pub. School

Comm., 215 F.3rd. 21, 26(1st Cir. 2002)). has other students in his class and is initiated among them, as well as . Ms. indicated that the program is specifically tailored to meet ’s needs by administering the and then determining short term objectives which are modified as things change throughout the year. Tr. 474. Even the District, in their closing remarks, indicated that is a very good school and provides an abundance of services.

I find that , with its special education program will meet the Student’s unique special education needs and is appropriate for him at this time. Specifically, his teacher at , Ms. , in his Educational Progress Report from June 2014, indicates that “ [ ] has displayed progress with a highly structured and behaviorally specific teaching approach which uses . He has made progress keeping his hands quiet during a

), however he still engages in

. He has decreased

from averaging

. He has “also demonstrated progress with learning new skills in a teaching environment when provided with

P-R.Ms. also discussed his progress in many areas including the use of the and his ability to as well as his consistent progress in .

Tr. 469-473. In he has made progress in all areas though he continues to

,

. P-S.

Specifically, Ms. indicated that since June 2014 he has mastered

. Tr. 521. Ms. explained that although he is not using the system at this time due to his Tr. 482-484. Ms. , of his , also indicated that he is making progress in , etc. Tr. 575. The Parent also indicated that he is making progress and that is constantly changing and reevaluating his program based on the tracking of data. Tr. 285-286.Both Ms. and Ms.

indicated that he is receiving educational benefit as a result of his instruction at and the services they provide. Tr. 547; Tr. 593.

Based on the foregoing, it is clear that is providing with educational instruction specifically designed to meet his unique needs and he is benefitting from the instruction and receiving education benefit. Therefore, I find that the Parents have met their burden in proving the appropriateness of for

Prong 3 – Equitable Considerations

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding they’re being advised that they should do so, parents never 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 USC 1412

(a)(10)(C)(ii).

I find that the Parent participated in the May 22nd and June 5th CSE meetings. They contacted the District after each meeting, visited the program two times and notified the District of their objections to the program. Although advised the Parent that they could not admit the child to the Program unless the child was present at the intake, I find that the Parent did bring to the second visit and her explanation as to why she didn’t bring the Student to her visit was appropriate; she wanted to see the program and ask questions and would not have been able to do so if were with her. P-I; Tr. 652.

Based upon their actions, in terms of equitable considerations, I find that the Parents cooperated with the District and analysis of equitable considerations offers no basis to rule against them.

Based upon foregoing I find that (1) the District did not provide FAPE to for the 2014-2015 school year; (2) the Parents placement of at is appropriate; and (3) the Parents cooperated with the District and analysis of equitable considerations offers no basis for ruling against them.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that the District shall reimburse the Parents for tuition at the for the 2014-15 school year in the amount of

Thousand ( ) Dollars, upon proof of payment and proof of ’s attendance at the for the 2014-15 school year beginning July 1, 2014 and ending June

24, 2015.

Dated: April 7 2015

, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

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

DOCUMENTATION ENTERED INTO THE RECORD

District’s Exhibits

No. Date Document Pages

1. 6/5/2014 Individualized Education Program (IEP) 28

2. undated Acceptance 1

3. 5/22/2014 IEP (annotated) 26

4. 1/2014

Progress Report (annotated) 11

5. 12/20/2013 Educational Progress

Report (annotated) 4

6. 6/17/2013

Third Education 3

7. 12/13/2013 and

Progress Report (annotated) 3

8. 4/9/2014 and

Test Results 4

9. 7/2013 – 6/2014 Plan 4

10. 6/2013 and

IEP goals (annotated) 4

11. 7/2013 – 6/2014 Integrated IEP 19

Parents’ Exhibits

A. 7/6/2014 Impartial Hearing Request 8

B. 12/20/2013 Educational Progress Report 5

C. 12.13.2013 and

Progress Report 3

D. 1/2/2014

Progress Report 9

E. 5/14/2014 Parent Letter to CSE 3

F. 6/9/2014 Parent Letter to CSE 5

G. 6/16/2014 Parent Letter to CSE and CPSE 8

H. 6/24/2014 Letter from CPSE to Parent 1

I. 7/9/2014 Parent Letter to CSE and CPSE 4

J. 7/30/2014 Parent Letter to CSE and CPSE 5

K. 2/24/2014 Enrollment Contract 3

L. 9/30/2014 Tuition Affidavit and Proof of Payment 3

M. 2014-15 Student’s Daily Schedule 2

N. 2014-15 Student’s Attendance Record through 9/25/14 1

O. 2013-14 Student’s Daily Schedule 1

P. undated Description of 1

Q. 4/3/2013 Clinical Summary by . , M.D. 1

R. 5/20/2014 Education Progress Report

(end of year) 6

S. 6/2014 and

Progress Report (end of year) 3

T. 5/1/2014

Progress Report 11

U. undated Student’s and Session Notes 2

V. 7/2013 – 6/2014 IEP 19

W. 7/2013 – 6/2014 Reduction Plan 5

X. 7/2014 – 6/2015 IEP 14

Y. 7/2014 – 6/2015 Reduction Plan 5

Impartial Hearing Officer’s Exhibits

I. undated Subpoena to 2

II. 10/10/2014 Revised Subpoena to 2

III. misc. dates Compliance decisions 7

Footnotes

[1] , approved, , , ;