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13-061

Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a student with a disability

Appearances: 

Courtenaye Jackson-Chase, Special Assistant Corporation Counsel, attorneys for petitioner, Jessica C. Darpino, Esq., of counsel

Law Offices of Regina Skyer & Associates, LLP, attorneys for respondent, Jesse Cole Cutler, Esq., of counsel

Decision

I. Introduction

            This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the district) appeals from the decision of an impartial hearing officer (IHO) which found that it failed to offer an appropriate educational program to respondents' (the parents') daughter and ordered it to reimburse the parents for the costs of the student's tuition at the Brooklyn Autism Center (BAC), as well as the costs of related services, for the 2011-12 school year.  The appeal must be sustained.

II. Overview—Administrative Procedures

            When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

            New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]).  First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]).  An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]).  The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]).  A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]).  The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).

            A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).  The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4).  The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5).  The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]).  The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Facts and Procedural History

            During the 2009-10 and 2010-11 school years, the student attended BAC (see Tr. pp. 1039-40, 1074).[1]  On March 25, 2011, the CSE convened to conduct the student's annual review and to develop an IEP for the 2011-12 school year (see Dist. Ex. 1 at pp. 1-2).[2]  Finding that the student remained eligible for special education and related services as a student with autism, the March 2011 CSE recommended a 12-month school year program in a 6:1+1 special class placement at a specialized school, together with the following related services: three 45-minute sessions per week of individual occupational therapy (OT); five 30-minute sessions per week of individual physical therapy (PT); five 30-minute sessions per week of individual speech-language therapy; and the services of a full-time, 1:1 behavior management paraprofessional (id. at pp. 1-2, 7-9).[3]  The March 2011 CSE also created annual goals with corresponding short-term objectives, recommended strategies to address the student's management needs, and attached a behavioral intervention plan (BIP) to the IEP (id. at pp. 4, 6-14, 18).  In addition, the March 2011 CSE further recommended that the student participate in adapted physical education and alternate assessment (id. at pp. 1, 5, 9).

            On April 29, 2011, the parents executed an enrollment contract with BAC for the student's attendance from July 1, 2011 through June 30, 2012 (see Parent Ex. TT at pp. 1-3).

            In a final notice of recommendation dated June 14, 2011, the district summarized the special education and related services recommended in the March 2011 IEP, and identified the particular public school site the district assigned the student to attend for the 2011-12 school year (see Dist. Ex. 8).[4]

            By letter dated June 17, 2011, the parents notified the district of their intentions to unilaterally place the student at BAC for the 2011-12 school year and to seek reimbursement for the costs of the placement from the district (see Parent Ex. B at pp. 1-3).  The parents further notified the district that they rejected the IEP and "program" recommended by the March 2011 CSE, noting that upon discussions at the meeting the CSE refused to consider recommending a "one-to-one behavioral method of instruction," and instead, recommended the "only program that [the CSE] felt able to recommend"—a 6:1+1 special class placement at a specialized school (id. at p. 1).  The parents also noted that at the March 2011 CSE meeting, they shared that the student's previous placement in a 6:1+2 class was not appropriate (id. at pp. 1-2).  Finally, the parents indicated that they had not received a copy of the March 2011 IEP, and the district failed to recommend an "appropriate placement" for the student that would "provide a functional grouping" or meet the student's "individualized special education needs" (id. at pp. 1-2).

            On June 22, 2011, the parents—along with the student's "current teacher"—visited the assigned public school site, and in a letter dated June 24, 2011, advised the district that it was not appropriate, in part, because the "program"—the 6:1+1 special class at the assigned public school site—did not provide the student with a "sufficient level of support to meet her educational needs" (Parent Ex. C at p. 1).[5]  The parents further indicated that the "only way" the student could learn was through "intensive 1:1 discrete trial instruction" using the principles of applied behavior analysis (ABA), and the assigned public school site did not "incorporate a sufficient amount of 1:1 discrete trial instruction" provided by "properly trained individuals" (id.).  The parents expressed concerns about the "limited opportunity for parents to meet with teachers (4 times per year)" or to observe students in the classrooms, group instruction observed at the visit, the more "relaxed" nature of the summer portion of the 12-month school year program, the inability to interact with nondisabled peers, the noise level of the speech-language therapy areas, and not knowing which specific class the student would attend at the assigned public school site (id. at p. 2).

A. Due Process Complaint Notice

            In an amended due process complaint notice dated July 17, 2012, the parents alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2011-12 school year (see Parent Ex. A at pp. 1-3).[6]  The parents asserted that the 6:1+1 special class placement with a 1:1 behavior management paraprofessional was not sufficiently supportive for the student, who required a "more intensive staffing ratio" to make progress (id. at p. 2).  The parents also asserted that the March 2011 CSE impermissibly predetermined the 6:1+1 special class placement based upon the district's available programs rather than the student's unique special education needs (id.).  In addition, the parents alleged that the March 2011 CSE deprived them of an opportunity to participate in the development of the IEP and ignored input from both the parents and the student's providers attending the March 2011 CSE meeting (id. at pp. 2-3).  In particular, the parents alleged that the March 2011 CSE failed to adequately consider recommending a "1:1 ABA program format" (id. at p. 3).  Next, the parents asserted that upon receipt and review of the March 2011 IEP during the summer of 2011, the annual goals in the March 2011 IEP were not appropriate due to the absence of baselines upon which to measure progress and due to the absence of short-term objectives (id. at p. 4).  Additionally, while the March 2011 IEP referenced counseling in the BIP, the March 2011 CSE did not recommend counseling as a related service and the March 2011 IEP did not include annual goals related to counseling or to the services of the 1:1 behavior management paraprofessional (id. at pp. 4-5).

            The parents further alleged that the district failed to identify a "specific class" on the FNR for the student's attendance at the assigned public school site (see Parent Ex. A at p. 3).  With respect to the assigned public school site, the parents repeated many of the concerns expressed in the June 24, 2011 letter, and further asserted that the assigned public school site was too large and overwhelming for the student, the observed classrooms were "crowded and cramped," and the structure of the observed classrooms—which appeared to use '"work stations'"—would not be appropriate for the student (compare Parent Ex. A at pp. 3-4, with Parent Ex. C at pp. 1-2).  Finally, the parents alleged that BAC was an appropriate unilateral placement, together with the related services provided to the student, for the 2011-12 school year, and that equitable considerations did not bar an award of tuition reimbursement (id. at p. 5).

B. Impartial Hearing Officer Decision

            On July 17, 2012, the IHO conducted a prehearing conference, and on September 12, 2012, the parties proceeded to an impartial hearing, which concluded on December 26, 2012, after 11 days of proceedings (see Tr. pp. 1-1114).  In a decision dated March 12, 2013, the IHO determined that the district failed to offer the student a FAPE for the 2011-12 school year, the student's unilateral placement at BAC was appropriate, and equitable considerations weighed in favor of the parents' request for relief (see IHO Decision pp. 35-50).  First, the IHO concluded that the district's failure to provide the parents with a copy of the March 2011 IEP prior to the start of the school year—as a procedural violation—denied the parents of the right to "meaningfully evaluate the program recommended by the [district]" because the "IEP [did] not include all of the information required for the student to receive a FAPE," which the parents could not "assess until they received the IEP" (id. at pp. 37-38).  Thus, the failure to provide the parents with a copy of the IEP before the start of the school year resulted in a finding that the district failed to offer the student a FAPE (id. at p. 38).[7]  Next, however, the IHO found that the evidence in the hearing record did not support the parents' assertions that the March 2011 CSE deprived them of the opportunity to participate in the development of the IEP or impermissibly predetermined the 6:1+1 special class placement recommendation (id. at pp. 38-39).  More specifically, the IHO determined that the evidence did not support a finding that the March 2011 CSE would not consider a "1:1 ABA placement in an appropriate case," or that the 6:1+ special class placement was "policy driven" (id.).

            Turning to the parents' allegations regarding the annual goals in the March 2011 IEP, the IHO concluded that "none of the goals contain[ed] a baseline, specific evaluation criterion or evaluation schedule" (IHO Decision at pp. 39-40).  The IHO also found that the short-term objectives—if taken to be short-term objectives—also failed to include a "baseline, express method of measurement, specific evaluation criterion or evaluation schedule" (id. at p. 40).  Accordingly, the IHO concluded that the March 2011 IEP failed to comply with the IDEA's procedural requirements and resulted in a failure to offer the student a FAPE (id.).[8]  Finally, the IHO determined that the district "provided no evidence that the student could make progress under the proposed IEP" and similarly "presented no evidence that the student [was] capable of learning" in the recommended 6:1+1 special class placement (id. at pp. 42-43).  In addition, the IHO indicated that the district did not provide any explanation to address the parents' stated concern about the student's previous inability to learn in a 6:1+2 setting or "that the student has only been able to make progress with intensive 1:1 ABA" (id. at p. 43).  Furthermore, the IHO noted that the March 2011 IEP did not include provisions for "ABA instruction" or "1:1 instruction" and only included "prompting and redirection" as management needs (id.).[9]

            Next, the IHO found that BAC, together with related services, was an appropriate unilateral placement for the student (see IHO Decision at pp. 45-49).  The IHO specifically rejected the district's assertions that BAC was not appropriate because it was overly restrictive and did not provide the student with the necessary related services (id. at pp. 47-48).  The IHO also concluded that the parents cooperated fully with the CSE, provided a timely 10-day notice of unilateral placement, visited the assigned public school site, and advised the district of their concerns; consequently, the IHO found that equitable considerations did not preclude or reduce any award of tuition reimbursement in this case, and ordered the district to reimburse the parents for the costs of the student's tuition at BAC and for the costs of related services (id. at pp. 49-50).

IV. Appeal for State-Level Review

            The district appeals, and asserts that the IHO erred in finding that the district failed to offer the student a FAPE for the 2011-12 school year.  First, the district argues that the IHO erred in finding that the district's failure to provide the parents with a copy of the March 2011 IEP prior to the start of the school year—as a procedural violation—rose to the level of a denial of a FAPE.  Second, the district contends that the IHO erred in finding that the 6:1+1 special class placement was not appropriate for the student, and further note that the March 2011 CSE was not required to consider including ABA instruction on the IEP.  Third, the district argues that the IHO erred in determining that the annual goals were defective because they failed to include baselines, measurement procedures, evaluative criteria, or an evaluation schedule.  The district also argues that while speculative, the assigned public school site would have properly implemented the March 2011 IEP.  Finally, the district asserts that the IHO erred in concluding that the parents' unilateral placement of the student a BAC, together with related services, was appropriate.

            In an answer, the parents respond to the district's allegations and argue to uphold the IHO's decision in its entirety.

            In a reply to the parents' answer, the district asserted that it properly appealed the IHO's findings that formed the basis for the IHO's conclusion that the district failed to offer the student a FAPE for the 2011-12 school year.

V. Applicable Standards

            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 unique 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. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

            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; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).  While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 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 procedural violations are 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]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d  at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; 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]).

            The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  A school district offers a 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, 142 F.3d at 130; 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 T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 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 (LRE) (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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; 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 educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 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 also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with 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).

            A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

            The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

VI. Discussion

A. March 2011 IEP

1. Receipt of March 2011 IEP

            On appeal, the district acknowledges that although it did not provide the parents with a copy of the March 2011 IEP until July 15, 2011—after the start of the 2011-12 school year—this procedural inadequacy, alone, did not impede the student's right to a FAPE, significantly impede the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or cause 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]), upon which to conclude that the district failed to offer the student a FAPE.[10]

            To meet its legal obligations under the IDEA and federal regulations, a school district must have an IEP "in effect, for each child with a disability in [its] jurisdiction" at the beginning of the school year and must provide the parents with a copy of the student's IEP "at no cost" (20 U.S.C. § 1414[d][2][A]; see 34 CFR 300.322[f]; 300.223[a]; Cerra, 427 F.3d at 194 [finding that the school district "fulfilled its legal obligations by providing the IEP before the first day of school"]; Tarlowe, 2008 WL 2736027, at *6 [stating that a district's delay does not violate the IDEA so long as a placement is found before the beginning of the school year]; see also C.U. v. New York City Dep't of Educ., 23 F. Supp. 3d 210, 225-27 [S.D.N.Y. 2014] [noting that "it naturally follows from the regulations" that a district must provide a copy of the student's IEP to the parents at the beginning of the school year]; N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 586 [S.D.N.Y. 2013] [finding that the failure to provide the parents with a copy of the IEP prior to the start of the school year did not impede the parents' opportunity to participate in the decision-making process] [internal citations omitted]; J.G. v. Briarcliff Manor Union Free School Dist., 682 F. Supp. 2d 387, 396 [S.D.N.Y. 2010]).[11]  In this case, the district developed the March 2011 IEP—which the parents rejected in a letter dated June 17, 2011 prior to receiving the IEP (see Dist. Exs. 1 at pp. 1-18; 9 at pp. 1-3; Parent Ex. B at pp. 1-2).  Additionally, the district identified the assigned public school site in which to implement the March 2011 IEP, which the parents visited on June 22, 2011 and rejected in a letter dated June 24, 2011 prior to receiving the IEP and prior to the start of the 12-month school year (see Dist. Ex. 8; Parent Ex. C at pp. 1-2).[12]

            A review of the June 17, 2011 letter reveals that although the parents noted that they had not received a copy of the March 2011 IEP at that time, the parents did not in any way indicate that they could not fully evaluate the recommended program of special education and related services offered in the March 2011 IEP without a copy of the IEP (see Parent Ex. B at pp. 1-2).  Rather, the June 17, 2011 letter particularized the parents' specific disagreements with the March 2011 IEP, noting the student's need for 1:1 "behavioral method of instruction"—which the parents attempted to discuss at the March 2011 CSE meeting—and their continued belief that the recommended 6:1+1 special class was not appropriate for the student—which they also voiced at the March 2011 CSE meeting (id. at p. 1).  Similarly, the June 22, 2011 letter identified the parents' particularized specific disagreements with the assigned public school site, and did not otherwise indicate that they had not received the March 2011 IEP or that they could not fully evaluate the assigned public school site without a copy of the IEP (see Parent Ex. C at pp. 1-2).[13], [14]  The evidence in the hearing record also established that the parents voiced their disagreement with the recommended 6:1+1 special class placement at the March 2011 CSE meeting based upon a past visit to a "6:1:1" and their belief that it did not offer "enough 1:1" for the student (Dist. Ex. 9 at p. 3).  Moreover, at the impartial hearing, the parents testified that although they did not have a copy of the March 2011 IEP at the time they visited the assigned public school site on June 22, 2011, they were "aware of the program and plan that the IEP had in place" for the 2011-12 school year (Tr. p. 1073).

            Accordingly, the IHO erred in finding that the district's failure to provide the parents with a copy of the March 2011 IEP before the start of the school year denied the parents the right to meaningfully evaluate the program recommended by the district and resulted in a finding that the district did not offer the student a FAPE for the 2011-12 school year.

2. Annual Goals and Short-Term Objectives

            The district contends that contrary to the IHO's decision, the annual goals included the appropriate evaluative criteria, evaluation procedures, and schedules to measure progress.  A review of the evidence in the hearing record supports the district's assertions, and the IHO's finding must be reversed.

            An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 CFR 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures, and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 CFR 300.320[a][3]).[15]  Short-term instructional objectives or benchmarks—described as "measurable intermediate steps between the student's present levels of performance and the measurable annual goal"—are required for students who participate in alternate assessment (see 8 NYCRR 200.4[d][2][iv]; see 20 U.S.C. §1414[d][1][A][i][I][cc]; 34 CFR 300.320[a][2][ii]).[16]  As discussed more fully below, the annual goals in the March 2011 IEP met the applicable standards and were specifically designed to meet the student's needs that resulted from her disability, enabling her to be involved in and make progress in the general education curriculum, and meeting the student's other educational needs resulting from her disability.

            In this case, the March 2011 IEP included approximately 21 annual goals with approximately 71 corresponding short-term objectives or benchmarks to address the student's identified needs in the areas of receptive and expressive language, fine and gross motor skills, imitation, socialization, self-care, feeding safety, visual motor skills, balance, and pre-academic skills (labeling, sequencing numbers, matching, and vocabulary) (see Dist. Ex. 1 6-14).  A careful review of the annual goals reveals that each annual goal included the evaluative criteria (i.e., 90 percent accuracy for two consecutive trials, 80 percent accuracy in three consecutive sessions), the evaluation schedule (i.e., 3 progress reports per school year), and procedures to evaluate the goals (i.e., teacher-charted observations, clinician charting) (id.).  Thus, contrary to the IHO's findings, all of the annual goals include the required criteria, including the evaluative criteria and an evaluation schedule (compare IHO Decision at p. 40, with Dist. Ex. 1 at pp. 6-14).  In addition, even if—as noted by the IHO—the "Short-Term Objective" heading was crossed out for approximately 10 annual goals in the March 2011 IEP, the activities listed and enumerated under each of these annual goals directly related to the annual goal and provided general indicators of the student's progress toward the annual goal—which, according to State guidance, is the purpose of short-term instructional objectives and benchmarks (compare IHO Decision at p. 40, with Dist. Ex. 1 at pp. 6-8, and ("Guide to Quality [IEP] Development and Implementation," at pp. 37-38, Office of Special Educ. [Dec. 2010], available at http://www.p12.nysed.gov/specialed/publications/iepguidance/IEPguideDec2010.pdf).[17]  Finally, while the IHO criticized the same short-term objectives as failing to include methods of measurement, specific evaluation criteria, or an evaluation schedule, the regulations cited above only require annual goals to include such criteria.

            Thus, overall the evidence in the hearing record supports a finding that the annual goals in the March 2011 IEP targeted the student's identified areas of need, appropriately addressed the student's needs, and were sufficiently specific and measurable to guide instruction and to evaluate the student's progress over the course of the school year (see D.A.B. v. New York City Dep't of Educ., 973 F. Supp. 2d 344, 359-61 [S.D.N.Y. 2013]; E.F. v. New York City Dept. of Educ., 2013 WL 4495676, at *18-*19 [E.D.N.Y. Aug. 19, 2013]; D.B. v. New York City Dep't of Educ., 966 F. Supp. 2d 315, 334-35 [S.D.N.Y. 2013]; S.H. v. Eastchester Union Free Sch. Dist., 2011 WL 6108523, at *8 [S.D.N.Y. Dec. 8, 2011]; W.T. v. Bd. of Educ., 716 F. Supp. 2d 270, 288-89 [S.D.N.Y. 2010]; Tarlowe, 2008 WL 2736027, at *9; M.C. v. Rye Neck Union Free Sch. Dist., 2008 WL 4449338, at *11 [S.D.N.Y. Sept. 29, 2008]; W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 146-47 [S.D.N.Y. 2006]; Application of the Dep't of Educ., Appeal No. 12-108 [finding annual goals appropriate where the goals addressed the student's areas of need reflected in the present levels of performance]).

3. 6:1+1 Special Class Placement with a 1:1 Paraprofessional

            The district contends that the 6:1+1 special class placement with a 1:1 paraprofessional was reasonably calculated to enable the student to receive educational benefits, and the IHO erred in basing her determination about whether the district offered the student a FAPE upon the absence of evidence that the student would make progress in the 6:1+1 special class placement and because the student did not make progress in a previous 6:1+2 special class placement.[18]  In addition, the district asserts that the March 2011 CSE was not required to specify a particular methodology—such as ABA—on the student's IEP.  A review of the evidence in the hearing record supports the district's contentions, and the IHO's findings must be reversed.

            State regulations provide that a 6:1+1 special class placement is designed for students "whose management needs are determined to be highly intensive, and requiring a high degree of individualized attention and intervention, . . . , with one or more supplementary school personnel assigned to each class during periods of instruction" (8 NYCRR 200.6[h][4][ii]).  The evidence in the hearing record indicates that the March 2011 CSE relied upon the following to develop the March 2011 IEP: a February 2011 BAC student progress report, a March 2011 related service progress report and justification letter for increase (March 2011 OT progress report) (see Dist. Ex. 3 at pp. 1-3), a March 2011 related services student progress report (March 2011 PT progress report) (see Dist. Ex. 4 at pp. 1-4), a March 2011 related services progress report: speech-language (March 2011 speech-language progress report) (see Dist. Ex. 6 at pp. 1-4), and a March 2011 BAC treatment summary (see Dist. Ex. 7 at pp. 4)[19] (see Tr. pp. 28-30; Dist. Exs. 1 at pp. 1-5, 9; 2 at pp. 1-10; 9 at pp. 1-3).[20]  The March 2011 CSE also relied upon input provided by the parents and the BAC educational director who attended the March 2011 CSE meeting (see Tr. pp. 38-44, 49-51, 75-79, 1042-47; Dist. Exs. 1 at p. 2; 9 at pp. 1-3).

            At the impartial hearing, the district school psychologist who attended the March 2011 CSE meeting testified that the CSE recommended a 6:1+1 special class placement with a 1:1 behavior management paraprofessional—together with a 12-month school year program, related services, annual goals, and a BIP—to address the student's needs in the areas of sensory integration, language, fine and gross motor functioning, and self-care or self-management (see Tr. pp. 26-27, 30-38; Dist. Ex. 1 at pp. 3-5, 7, 18).[21]  The district school psychologist further testified that, traditionally, the district's "6:1+1 program" helped students with autism because it was "language enriched" and "tailored specifically to the needs of autistic children" (Tr. p. 51; see Tr. pp. 67-68; see generally Tr. pp. 116-19).  In addition, the "program" worked on "socialization, activities of daily living, [and] modeling," and offered related services through "on site" providers, who collaborated with the classroom teachers (id.).  According to the district school psychologist, the March 2011 CSE believed that the 6:1+1 special class placement offered the student the opportunity for "modeling and generalization of skills" (id. at pp. 51-52).[22]  Although the BAC educational director recommended at the March 2011 CSE meeting that the student continued to require the "one-to-one type of ABA program," the district school psychologist testified that the 6:1+1 special class was appropriate for the student because she would have "peer models" in the classroom—especially with regard to communication and ADL skills—and she would have the opportunity to generalize skills learned within the "small groups in the classroom" and through her related services providers (Tr. pp. 52-53).  In addition, the district school psychologist further testified that the March 2011 CSE did not recommend a "one-to-one structured teaching setting utilizing the principles" of ABA due to the student's need to "generalize her skills"—which BAC did not provide to the student—as well as providing the student with "on-site" related services to "offer help and suggestions" to the classroom teacher—which BAC also did not provide to the student (Tr. pp. 93-95; see Tr. pp. 148-49, 171-74, 176-77, 181-82).  The district school psychologist also clarified that the March 2011 CSE did not recommend 1:1 ABA instruction in the IEP because "several methodologies" existed for students with autism, and the decision regarding which methodology to use with particular students was left to the discretion of the classroom teachers working with those students (Tr. pp. 98-101).

            At the March 2011 CSE meeting, the district school psychologist acknowledged that the parents voiced disagreement with the decision to recommend a 6:1+1 special class placement because they believed the student required "more one-to-one services, meaning that providers [would] work with [the student] on an individual basis" and it "was the way [the student] would make progress" (Tr. p. 44; see Tr. pp. 70-71; see also 1042-47).  In addition, the district school psychologist testified that the parents also shared concerns about the recommended 6:1+1 special class placement based upon previous observations of such placements (see Tr. pp. 71-73; see also 1042-47).  In addition, the BAC educational director opined at the March 2011 CSE meeting that the 6:1+1 special class placement would not be "educationally beneficial" to the student, and instead, believed that the BAC program was "best suited" for the student to make progress (Tr. p. 46; see Tr. pp. 52, 176-77).  When asked by the parents to consider placing the student at BAC, the district school psychologist informed the parents that the March 2011 CSE could not recommend BAC because it was not a State-approved school (see Tr. pp. 73-75; 145-47; see also Tr. pp. 1042-47).

            Based upon the foregoing, the evidence in the hearing record supports a finding that consistent with State regulation and the student's significant needs across several domains, the March 2011 CSE's decision to recommend a 6:1+1 special class placement with a 1:1 behavior management paraprofessional— together with a 12-month school year program, related services, annual goals, and a BIP—was reasonably calculated to enable the student to receive educational benefits.

VII. Conclusion

            Having determined that the evidence in the hearing record demonstrates that the district sustained its burden to establish that it offered the student a FAPE in the LRE for the 2011-12 school year, the necessary inquiry is at an end and there is no need to reach the issues of whether the student's unilateral placement at BAC, together with related services, was an appropriate placement or whether equitable considerations supported the parents' requested relief (Burlington, 471 U.S. at 370; see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]).

            THE APPEAL IS SUSTAINED.

            IT IS ORDERED that the IHO's decision, dated March 12, 2013, is hereby modified by reversing that portion which found that the district failed to offer the student a FAPE for the 2011-12 school year; and,

            IT IS FURTHER ORDERED that the IHO's decision, dated March 12, 2013, is hereby modified by reversing that portion which directed the district to reimburse the parents for the costs of the student's tuition at BAC and to reimburse the parents for the costs of the student's related services for the 2011-12 school year.

[1] The Commissioner of Education has not approved BAC as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).

[2] At the impartial hearing, the parent testified that the March 2011 CSE meeting lasted approximately one hour (see Tr. p. 1042).

[3] The student's eligibility for special education programs and related services as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).

[4] The parents testified that they received the FNR on or about June 17, 2011 (see Tr. p. 1047).

[5] The "current teacher" who accompanied the parents on the visit to the assigned public school site also attended the March 2011 CSE meeting; however, the "current teacher" identified herself on the attendance page of the March 2011 IEP as the "Educational Director"(compare Dist. Ex. 1 at p. 2, and Dist. Ex. 9 at p. 1, with Parent Ex. C at p. 1).

[6] The parents amended the initial due process complaint notice, dated June 6, 2012, to insert one word (see Tr. pp. 3-8, 12-15).  Neither party submitted the initial due process complaint notice as evidence in the hearing record.

[7] At the impartial hearing, the parties stipulated that the district mailed the March 2011 IEP to the parents on July 15, 2011 and that the parents received it (see Tr. pp. 22-23, 54).

[8] The IHO also found that the March 2011 CSE's failure to recommend counseling or to create annual goals related to counseling did not result in a failure to offer the student a FAPE (see IHO Decision at p. 41).

[9] Having concluded that the district failed to offer the student a FAPE for the 2011-12 school year, the IHO noted that it was "unnecessary to reach a determination regarding the appropriateness of the proposed placement" (IHO Decision at p. 44 n.13).

[10] As a matter of State law, the school year runs from July 1 through June 30 (see Educ. Law § 2[15]).

[11] Furthermore, the Second Circuit has established that "'educational placement' refers to the general educational program—such as the classes, individualized attention and additional services a child will receive—rather than the 'bricks and mortar' of the specific school" (R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 504 [S.D.N.Y. Aug. 19, 2011]; R.K. v. Dep't of Educ., 2011 WL 1131492, at *15-*17 [E.D.N.Y. Jan. 21, 2011], adopted at, 2011 WL 1131522 [E.D.N.Y. Mar. 28, 2011], aff'd, 694 F.3d 167; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 [2d Cir. 1980]).  Moreover, the R.E. Court found that "[t]he requirement that an IEP specify the 'location' does not mean that the IEP must specify a specific school site," and that "[t]he [district] may select the specific school without the advice of the parents so long as it conforms to the program offered in the IEP" (R.E., 694 F.3d at 191-92; see S.M. v. Taconic Hills Cent. Sch. Dist., 2013 WL 773098, at *5 [N.D.N.Y. Feb. 28, 2013]; J.L. v. City Sch. Dist. of  City of New York, 2013 WL 625064, at *10 [S.D.N.Y. Feb. 20, 2013];F.L. v. New York City Dep't of Educ., 2012 WL 4891748, at *12 [S.D.N.Y. Oct. 16, 2012]); K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 [S.D.N.Y. Aug. 23, 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 668 [S.D.N.Y. Nov. 18, 2011]; S.F., 2011 WL 5419847, at *12, *14; C.F. v. New York City Dep't of Educ., 2011 WL 5130101, at *8-*9 [S.D.N.Y. Oct. 28, 2011]; A.L, 812 F. Supp. 2d at 504).

[12] The IDEA does not require districts to maintain classroom openings for students enrolled in private schools (E.H. v. Bd. of Educ., 2014 WL 1224417, at *7 [S.D.N.Y. Mar. 24, 2014] [finding that the parent's argument that the student was denied a FAPE because the proposed classroom did not have a space for the student was without merit and that the district public school was not obligated to hold a seat open for the student after the parent rejected the district's offered public school placement prior to the start of the school year]; see M.L. v. New York City Dep't of Educ., 2014 WL 1301957, at *7 [S.D.N.Y. Mar. 31, 2014]; M.O. v. New York City Dep't of Educ., 2014 WL 1257924, at *2 [S.D.N.Y. Mar. 27, 2014]; R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *17 [S.D.N.Y. Sept. 27, 2013]N.K., 961 F. Supp. 2d at 590).

[13] Although the district offered the parents the opportunity to visit the assigned public school site, neither the IDEA nor State regulations confer a right upon parents to visit a school or classroom.  Rather, the United States Department of Education's Office of Special Education Programs (OSEP) has opined that the IDEA does not provide a general entitlement to parents of students with disabilities to observe their children in any current classroom or proposed educational placement (Letter to Mamas, 42 IDELR 10 [OSEP 2004]; see Application of a Student with a Disability, Appeal No. 12-047; Application of a Student with a Disability, Appeal No. 09-082; Application of the Dep't of Educ., Appeal No. 08-097; Application of a Child with a Disability, Appeal No. 07-049; Application of a Child with a Disability, Appeal No. 07-013).

[14] The Second Circuit has also made clear that just because a school district is not required to place details such as the particular school site or classroom location on a student's IEP, a school district is not free to choose any random classroom and services that deviate from the provisions set forth in the IEP (see T.Y., 584 F.3d 412, 420 [2d Cir. 2009] [explaining that a school district does not have carte blanche to provide services to a child at a school that cannot satisfy the IEP's requirements]).  Thus, in reaffirming T.Y., the Court held that a school district "may select the specific school without the advice of the parents so long as it conforms to the program offered in the IEP" (R.E., 694 F.3d 167, 191-92).

[15] To the extent that the parents assert that the annual goals were not appropriate because they lacked baselines upon which to measure progress, the applicable State regulations cited above do not require "baseline" functioning levels to be included in annual goals in an IEP (R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *13 [S.D.N.Y. Sept. 27, 2013] [noting that with respect to drafting annual goals "[c]ontrary to Plaintiffs contention . . . . , nothing in the state or federal statute requires that an IEP contain 'baseline levels of functioning' from which progress can be measured]).  Instead, the annual goals must meet a simpler criterion—that is, the annual goals must be "measurable."

[16] State guidance describes short-term instructional objectives as the "intermediate knowledge and skills that must be learned in order for the student to reach the annual goal" ("Guide to Quality [IEP] Development and Implementation," at pp. 37-38, Office of Special Educ. [Dec. 2010], available at http://www.p12.nysed.gov/specialed/publications/iepguidance/IEPguideDec2010.pdf).  According to the same State guidance, short-term instructional objectives break down the skills or steps necessary for a student to accomplish an annual goal into discrete components (see id.).  Benchmarks are described as "major milestones that the student will demonstrate that will lead to the annual goal;" benchmarks "usually designate a target time period for a behavior to occur" and generally establish "expected performance levels that allow for regular checks of progress that coincide with the reporting periods for informing parents" of progress toward the annual goals (id.).  "Short-term instructional objectives and benchmarks should be general indicators of progress, not detailed instructional plans, that provide the basis to determine how well the student is progressing toward his or her annual goal and which serve as the basis for reporting to parents" (id.).

[17] The district school psychologist testified that although she did not know "why" a "colleague" may have crossed out the heading in the IEP, the activities enumerated below each of the annual goals on pages 6, 7, and 8 of the March 2011 IEP continued to be short-term objectives (see Tr. pp. 81-83).

[18] As noted above, a district offers the student a FAPE if it complies with the procedural requirements and develops an IEP that is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; R.E., 694 F.3d at 189-90; M.H., 685 F.3d at 245; Cerra, 427 F.3d at 192).  Here, the IHO erred in requiring the district to present evidence to establish that the student could "make progress under the proposed IEP" and was "capable of learning" in a 6:1+1 special class placement (IHO Decision at pp. 42-43). Moreover, there is no evidence in the record that the 6:1+2 preschool special class placement referenced by the parents was either identical, or substantially similar, to the program, including all supports, goals, management needs and related services,  recommended by the March 2011 CSE.

[19] The IHO concluded that the district failed to offer the student a FAPE, in part, based upon testimonial and documentary evidence adduced at the impartial hearing concerning the student's "need for intensive 1:1 ABA instruction throughout her day" (IHO Decision at p. 42).  However, the only documentary evidence in the hearing record—which was available to the March 2011 CSE—indicating that the student required a "1:1 structured teaching setting utilizing the principles of [ABA]" was the March 2011 BAC treatment summary (Dist. Ex. 7 at p. 1; see Dist. Exs. 1-6; 8-9; Parent Exs. A-Z; AA-ZZ).  The IHO did not cite to any particular testimonial evidence to support the conclusion that the student required 1:1 ABA instruction throughout the day (see IHO Decision at pp. 41-44).  And while it is not unexpected that the parents and the BAC educational director may have testified at the impartial hearing about the student's need for 1:1 ABA instruction throughout the school day, the parents and the BAC educational director attended the March 2011 CSE meeting and expressed their opinions regarding the 6:1+1 special class placement and 1:1 ABA instruction (see Tr. pp. 46, 70; Dist. Ex. 1 at p. 2).  Additionally, aside from the parents and the BAC educational director, none of the remaining witnesses presented by the parents attended the March 2011 CSE meeting (compare Tr. pp. 1-1114, with Dist. Ex. 1 at p. 2).

[20] Prior to the March 2011 CSE meeting, the district school psychologist also reviewed the "history of the case" by reviewing documents in the student's folder (Tr. pp. 28, 63, 65).

[21] The March 2011 CSE adopted the frequency, duration, and group size recommendations set forth in the March 2011 OT progress report, the March 2011 PT progress report, and the March 2011 speech-language therapy progress report (compare Dist. Ex. 1 at pp. 2, 9, with Dist. Ex. 3 at p. 3, and Dist. Ex. 4 at p. 4, and Dist. Ex. 6 at pp. 3-4).  BAC did not provide the student with any related services (see Dist. Ex. 3 at p. 1; 4 at p. 1; 6 at p. 1).  None of the student's related services providers attended the March 2011 CSE meeting (see Dist. Ex. 1 at p. 2).  In addition, none of the March 2011 related services reports available to the March 2011 CSE included recommendations to use a particular methodology with the student, and the evidence in the hearing record did not otherwise indicate that the related services providers used ABA to provide OT, PT, or speech-language therapy to the student or that the related services providers were trained in ABA (see Tr. pp. 394-427, 719-48; see generally Tr. pp. 859-92; Dist. Exs. 3 at pp. 1-3; 4 at pp. 1-4; 6 at pp. 1-4).  The student's speech-language provider testified, however, that she received informal training in ABA from her supervisor and from BAC staff, and she used ABA techniques with the student to extinguish behaviors (see Tr. pp. 884-85, 887-98; see generally Tr. pp.  859-92).

[22] The district school psychologist also testified that program had been described to the parent (see Tr. pp. 51-52).

Topical Index

Accommodations/Management Needs1:1 Support/Aide
Annual Goals
District Appeal
Educational PlacementSpecial Class6:1+1
Implementation/Assigned SchoolAvailability/Transmittal of IEP
Methodology

PDF Version

[1] The Commissioner of Education has not approved BAC as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).

[2] At the impartial hearing, the parent testified that the March 2011 CSE meeting lasted approximately one hour (see Tr. p. 1042).

[3] The student's eligibility for special education programs and related services as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).

[4] The parents testified that they received the FNR on or about June 17, 2011 (see Tr. p. 1047).

[5] The "current teacher" who accompanied the parents on the visit to the assigned public school site also attended the March 2011 CSE meeting; however, the "current teacher" identified herself on the attendance page of the March 2011 IEP as the "Educational Director"(compare Dist. Ex. 1 at p. 2, and Dist. Ex. 9 at p. 1, with Parent Ex. C at p. 1).

[6] The parents amended the initial due process complaint notice, dated June 6, 2012, to insert one word (see Tr. pp. 3-8, 12-15).  Neither party submitted the initial due process complaint notice as evidence in the hearing record.

[7] At the impartial hearing, the parties stipulated that the district mailed the March 2011 IEP to the parents on July 15, 2011 and that the parents received it (see Tr. pp. 22-23, 54).

[8] The IHO also found that the March 2011 CSE's failure to recommend counseling or to create annual goals related to counseling did not result in a failure to offer the student a FAPE (see IHO Decision at p. 41).

[9] Having concluded that the district failed to offer the student a FAPE for the 2011-12 school year, the IHO noted that it was "unnecessary to reach a determination regarding the appropriateness of the proposed placement" (IHO Decision at p. 44 n.13).

[10] As a matter of State law, the school year runs from July 1 through June 30 (see Educ. Law § 2[15]).

[11] Furthermore, the Second Circuit has established that "'educational placement' refers to the general educational program—such as the classes, individualized attention and additional services a child will receive—rather than the 'bricks and mortar' of the specific school" (R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 504 [S.D.N.Y. Aug. 19, 2011]; R.K. v. Dep't of Educ., 2011 WL 1131492, at *15-*17 [E.D.N.Y. Jan. 21, 2011], adopted at, 2011 WL 1131522 [E.D.N.Y. Mar. 28, 2011], aff'd, 694 F.3d 167; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 [2d Cir. 1980]).  Moreover, the R.E. Court found that "[t]he requirement that an IEP specify the 'location' does not mean that the IEP must specify a specific school site," and that "[t]he [district] may select the specific school without the advice of the parents so long as it conforms to the program offered in the IEP" (R.E., 694 F.3d at 191-92; see S.M. v. Taconic Hills Cent. Sch. Dist., 2013 WL 773098, at *5 [N.D.N.Y. Feb. 28, 2013]; J.L. v. City Sch. Dist. of  City of New York, 2013 WL 625064, at *10 [S.D.N.Y. Feb. 20, 2013];F.L. v. New York City Dep't of Educ., 2012 WL 4891748, at *12 [S.D.N.Y. Oct. 16, 2012]); K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 [S.D.N.Y. Aug. 23, 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 668 [S.D.N.Y. Nov. 18, 2011]; S.F., 2011 WL 5419847, at *12, *14; C.F. v. New York City Dep't of Educ., 2011 WL 5130101, at *8-*9 [S.D.N.Y. Oct. 28, 2011]; A.L, 812 F. Supp. 2d at 504).

[12] The IDEA does not require districts to maintain classroom openings for students enrolled in private schools (E.H. v. Bd. of Educ., 2014 WL 1224417, at *7 [S.D.N.Y. Mar. 24, 2014] [finding that the parent's argument that the student was denied a FAPE because the proposed classroom did not have a space for the student was without merit and that the district public school was not obligated to hold a seat open for the student after the parent rejected the district's offered public school placement prior to the start of the school year]; see M.L. v. New York City Dep't of Educ., 2014 WL 1301957, at *7 [S.D.N.Y. Mar. 31, 2014]; M.O. v. New York City Dep't of Educ., 2014 WL 1257924, at *2 [S.D.N.Y. Mar. 27, 2014]; R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *17 [S.D.N.Y. Sept. 27, 2013]N.K., 961 F. Supp. 2d at 590).

[13] Although the district offered the parents the opportunity to visit the assigned public school site, neither the IDEA nor State regulations confer a right upon parents to visit a school or classroom.  Rather, the United States Department of Education's Office of Special Education Programs (OSEP) has opined that the IDEA does not provide a general entitlement to parents of students with disabilities to observe their children in any current classroom or proposed educational placement (Letter to Mamas, 42 IDELR 10 [OSEP 2004]; see Application of a Student with a Disability, Appeal No. 12-047; Application of a Student with a Disability, Appeal No. 09-082; Application of the Dep't of Educ., Appeal No. 08-097; Application of a Child with a Disability, Appeal No. 07-049; Application of a Child with a Disability, Appeal No. 07-013).

[14] The Second Circuit has also made clear that just because a school district is not required to place details such as the particular school site or classroom location on a student's IEP, a school district is not free to choose any random classroom and services that deviate from the provisions set forth in the IEP (see T.Y., 584 F.3d 412, 420 [2d Cir. 2009] [explaining that a school district does not have carte blanche to provide services to a child at a school that cannot satisfy the IEP's requirements]).  Thus, in reaffirming T.Y., the Court held that a school district "may select the specific school without the advice of the parents so long as it conforms to the program offered in the IEP" (R.E., 694 F.3d 167, 191-92).

[15] To the extent that the parents assert that the annual goals were not appropriate because they lacked baselines upon which to measure progress, the applicable State regulations cited above do not require "baseline" functioning levels to be included in annual goals in an IEP (R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *13 [S.D.N.Y. Sept. 27, 2013] [noting that with respect to drafting annual goals "[c]ontrary to Plaintiffs contention . . . . , nothing in the state or federal statute requires that an IEP contain 'baseline levels of functioning' from which progress can be measured]).  Instead, the annual goals must meet a simpler criterion—that is, the annual goals must be "measurable."

[16] State guidance describes short-term instructional objectives as the "intermediate knowledge and skills that must be learned in order for the student to reach the annual goal" ("Guide to Quality [IEP] Development and Implementation," at pp. 37-38, Office of Special Educ. [Dec. 2010], available at http://www.p12.nysed.gov/specialed/publications/iepguidance/IEPguideDec2010.pdf).  According to the same State guidance, short-term instructional objectives break down the skills or steps necessary for a student to accomplish an annual goal into discrete components (see id.).  Benchmarks are described as "major milestones that the student will demonstrate that will lead to the annual goal;" benchmarks "usually designate a target time period for a behavior to occur" and generally establish "expected performance levels that allow for regular checks of progress that coincide with the reporting periods for informing parents" of progress toward the annual goals (id.).  "Short-term instructional objectives and benchmarks should be general indicators of progress, not detailed instructional plans, that provide the basis to determine how well the student is progressing toward his or her annual goal and which serve as the basis for reporting to parents" (id.).

[17] The district school psychologist testified that although she did not know "why" a "colleague" may have crossed out the heading in the IEP, the activities enumerated below each of the annual goals on pages 6, 7, and 8 of the March 2011 IEP continued to be short-term objectives (see Tr. pp. 81-83).

[18] As noted above, a district offers the student a FAPE if it complies with the procedural requirements and develops an IEP that is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; R.E., 694 F.3d at 189-90; M.H., 685 F.3d at 245; Cerra, 427 F.3d at 192).  Here, the IHO erred in requiring the district to present evidence to establish that the student could "make progress under the proposed IEP" and was "capable of learning" in a 6:1+1 special class placement (IHO Decision at pp. 42-43). Moreover, there is no evidence in the record that the 6:1+2 preschool special class placement referenced by the parents was either identical, or substantially similar, to the program, including all supports, goals, management needs and related services,  recommended by the March 2011 CSE.

[19] The IHO concluded that the district failed to offer the student a FAPE, in part, based upon testimonial and documentary evidence adduced at the impartial hearing concerning the student's "need for intensive 1:1 ABA instruction throughout her day" (IHO Decision at p. 42).  However, the only documentary evidence in the hearing record—which was available to the March 2011 CSE—indicating that the student required a "1:1 structured teaching setting utilizing the principles of [ABA]" was the March 2011 BAC treatment summary (Dist. Ex. 7 at p. 1; see Dist. Exs. 1-6; 8-9; Parent Exs. A-Z; AA-ZZ).  The IHO did not cite to any particular testimonial evidence to support the conclusion that the student required 1:1 ABA instruction throughout the day (see IHO Decision at pp. 41-44).  And while it is not unexpected that the parents and the BAC educational director may have testified at the impartial hearing about the student's need for 1:1 ABA instruction throughout the school day, the parents and the BAC educational director attended the March 2011 CSE meeting and expressed their opinions regarding the 6:1+1 special class placement and 1:1 ABA instruction (see Tr. pp. 46, 70; Dist. Ex. 1 at p. 2).  Additionally, aside from the parents and the BAC educational director, none of the remaining witnesses presented by the parents attended the March 2011 CSE meeting (compare Tr. pp. 1-1114, with Dist. Ex. 1 at p. 2).

[20] Prior to the March 2011 CSE meeting, the district school psychologist also reviewed the "history of the case" by reviewing documents in the student's folder (Tr. pp. 28, 63, 65).

[21] The March 2011 CSE adopted the frequency, duration, and group size recommendations set forth in the March 2011 OT progress report, the March 2011 PT progress report, and the March 2011 speech-language therapy progress report (compare Dist. Ex. 1 at pp. 2, 9, with Dist. Ex. 3 at p. 3, and Dist. Ex. 4 at p. 4, and Dist. Ex. 6 at pp. 3-4).  BAC did not provide the student with any related services (see Dist. Ex. 3 at p. 1; 4 at p. 1; 6 at p. 1).  None of the student's related services providers attended the March 2011 CSE meeting (see Dist. Ex. 1 at p. 2).  In addition, none of the March 2011 related services reports available to the March 2011 CSE included recommendations to use a particular methodology with the student, and the evidence in the hearing record did not otherwise indicate that the related services providers used ABA to provide OT, PT, or speech-language therapy to the student or that the related services providers were trained in ABA (see Tr. pp. 394-427, 719-48; see generally Tr. pp. 859-92; Dist. Exs. 3 at pp. 1-3; 4 at pp. 1-4; 6 at pp. 1-4).  The student's speech-language provider testified, however, that she received informal training in ABA from her supervisor and from BAC staff, and she used ABA techniques with the student to extinguish behaviors (see Tr. pp. 884-85, 887-98; see generally Tr. pp.  859-92).

[22] The district school psychologist also testified that program had been described to the parent (see Tr. pp. 51-52).