New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth: District: 8 Hearing Requested By: Parent Date of Hearing: February 7, 2011

February 28, 2011

March 28, 2011 Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 7, 2011

Attorney — Student

Parents

CSE Representative — DOE

CPSE Administrator — DOE

Education Teacher — DOE

Therapist — DOE

CPSE Administrator — DOE

EPOC Administrator — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 28, 2011

Attorney — Student

Parents

CSE Representative — DOE

Education Teacher — DOE

Therapist — DOE

CPSE Administrator — DOE

On November 15, 2010, I was appointed the Impartial Hearing Officer (“IHO”) to conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Parts 200 and 201 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act, regarding a dispute between the Parent of a (5) year old student attending a public school, and the Department of Education (“DOE”) - District concerning that student’s education program.

After the “resolution period” concluded without a settlement and adjournments were granted either on consent or for good cause, the impartial hearing was held on February 7, 2011, February 28, 2011 and March 28, 2011. A list of the witnesses testifying and documents received into evidence are attached to this decision. The parties requested to submit Memorandums of Law (“memo”) at the conclusion of the hearing. (T-282) Memos were ordered due on April 15, 2011.

BACKGROUND

This case involves a ( ) year old student who the Parent alleges has and Disorder (“ ”). (See Parent’s Due Process Complaint - “DPC”) The Parent further alleges that the Committee on Education (“CPSE”) conducted a meeting on August 31, 2010 and recommended the student’s continued placement at his current public school in a setting. (Id.) The Parent alleges that the student attended the same program during the 2009-2010 school year and made very little progress. (Id.) The Parent further alleges that the student’s twin brother, who has the same diagnosis, began attending a program in another public school for the 2010-2011 school year and has made tremendous growth. (Id.) The student’s twin brother attended the student’s current recommended DOE placement for the 2009-2010 school year. (Id.)

The Parent requests at the impartial hearing includes, but is not limited to the following: (1) annulment of the student’s current Individualized Education Program (“IEP”), (2) the student’s placement in the program at the public school currently attended by the student’s twin brother, and (3), payment of the Parent’s attorney’s fees. (Id.) The Parent’s remaining request can be grouped into a collective group of services that in the Parent’s view would constitute a “free and appropriate public education” (“FAPE”) for the student. (Id.)

THE DOE’S CASE

The DOE argues that the student is a ( ) year old attending a public school in a staffing ratio. (T-16) The student is in a -month program. (Id.) He receives therapy (2 x 30 x 1), therapy (2 x 30 x 1) and and services (2 x 30 x 1). (Id.) The student is making progress in his current public school program, so the Parent’s request for additional Applied al Analysis (“ABA”) services should be denied. (Id.) Nevertheless, the DOE proffers that it is willing to place the student in a different school simply to accommodate the Parent. (T-

17) However, the Parent has requested a specific placement in a program, or a similar program that offers ABA services. (T-18)

The DOE called (4) witnesses to testify on its behalf and submitted (26) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness conducted the last annual review for the student and his twin brother. (T-19) He is a administrator and a certified general and education teacher. (T-21) The student’s review was on August 31, 2010. (Id.) He became familiar with the student over the summer. (T-25) The student’s public school evaluation representative/liaison also participated. (T-26) The student’s teacher was not available. (Id.) The student’s teacher did write a progress report. (T-26-7) The related service providers also wrote reports. (T-27)

The witness stated that a history report was reviewed at the August 31st meeting. (T-29) DOE exhibits (6) through (11) were reviewed at the meeting. (T-29-30) The student’s education teacher’s educational evaluation recommended that the student remain in a self-contained class of . (T-30) The Parent did not request additional services for the student at the meeting. (T-30-1) Neither did the Parent request ABA services for the student. (T-31) Neither the student’s teacher nor his public school felt that there was a need for a Functional al Assessment (“FBA”) or a Intervention Plan (“BIP”). (T-31) The student’s IEP recommends he receive once a week to improve his / management needs. (T-31-2 & P-B) However, was not recommended because his teacher did not feel that it was necessary. (T-32) If the student’s teacher feels that she can handle the student’s , then there is no need to pull the student out of the classroom because he would miss instruction. (T-33)

On cross examination, the witness testified that he first learned of the student late July or early August. (T-35) Later he stated that he did know the student was prior CPSE meeting because he attended the initial meeting in August of 2009. (Id.) He participates in IEP meetings throughout the year as a District Representative, a general education teacher and a education teacher. (T-37) He is currently not a teacher. (T-38) He last taught about (10) years ago. (Id.)

The witness has never met the student. (T-39) Neither the general education nor the education teacher at the student’s IEP meeting has a classroom. (Id.) He is not aware of either of them meeting the student. (T-40) He assumes that the student’s public school liaison observed the student in class. (T-41) However, the liaison did not communicate that to him. (Id.) Neither did she tell him that she evaluated the student. (Id.) He does not know if the liaison is a psychologist. (T-41-2) He believes that the liaison may be a worker. (T-42)

The witness stated that at the time he scheduled the CPSE meeting he knew that the student’s teacher was not going to be available. (T-44) The reason he did not have the meeting two weeks later was so the student’s sibling could start school on time. (T-

46) The student’s sibling is in a different school. (T-47) He schedules the meeting when he receives the reports. (Id.) He did not review any reports at the August 31st meeting. (T-48)

The witness acknowledged that the student’s IEP states that his seriously interferes with instruction and requires additional adult support. (T-50 & 52) An FBA was not conducted for the student. (T-52-3) He is not aware of the Parent being provided with copies of DOE exhibits (6) through (11) prior to the meeting. (T-53-4) He acknowledged that the student’s educational evaluation states that a weighted vest should be considered to aid the student’s ritualistic and that the student was not provided with a weighted vest. (T-54-5 & D-8)

The witness stated that the student was (10) months behind cognitively at the time of his educational evaluation. (T-55-6) He would not describe such a student as displaying remarkable intelligence in the area of academics. (T-56) These issues were not exactly discussed by the CPSE. (T-57) They discussed a little bit of the student’s progress. (Id.) The educational evaluation recommended that he remain in a class. (T-59) They also considered the student’s other reports in making their recommendation. (Id.) He doesn’t know if the Parent had seen the educational evaluation prior to or during the meeting. (T-61)

The witness stated that the student’s 2009 IEP indicates that he was not receiving . (T-63) He does not believe that falling on the floor and having is a basis for ordering an FBA because all children for the most part. (T-64) The student also does not need an FBA because there is an assistant and two paraprofessionals in the classroom. (T-65)

On re-direct testimony, the witness testified that the student does receive additional adult support in his class. (T-68) On re-cross examination, the witness stated that it appears the student’s 2009/2010 IEP was not an accurate description of the program the student was actually receiving in terms of . (T-68-9) He did not realize that there was a report and does not recall seeing it at the meeting. (T-70 & D-9) They did review the student’s history report. (T-70) He does not think that he met with anyone regarding the student. (T-73) He does not prepare a record of the reports and evaluations reviewed at the CPSE meeting. (T-73-4) They also reviewed the student and report at the meeting. (T-77 & D-7)

The DOE’s second witness is the education program director for the student’s public school. (T-80) She has only had contact with the Parent over the telephone. (T-82) The student is not currently receiving services. (T-83) He did receive services in the past. (Id.) She does not know why services were discontinued for this year. (T-84)

The witness stated that they have parent training. (Id.) The Parent has participated in workshops but has not taken part in their . (Id.) From the reports she has read, it seems as though the student is making progress. (T-86) The student’s teacher is not trained in ABA. (Id.) The student’s reports were written around November. (T-88) She reviewed exhibits (1) through (5). (T-89) The reports indicate that the student is properly placed. (T-90)

On cross examination, the witness testified that she has recently seen the student in the classroom for two days. (T-92) There was no re-direct testimony taken from the witness. (T-100)

The DOE’s third witness has known the student since September of last year. (T-

113) She is the student’s education teacher. (T-115) There were (10) students in her class and (2) adults in addition to herself. (T-116) The student was in her class for the 2009-2010 school year. (T-117) She also taught the student during July and August of 2010. (T-118)

The witness stated that in pre-reading skills, the student is functioning very high and is academically one of the brightest students in her class. (T-119) The student would graduate in June unless he participated in the summer program again. (T-120) The summer program is optional. (Id.) The student is not academically delayed. (Id.) However, he does have some delays. (T-121) She has seen a lot of progress in the student’s . (Id.) The student is still immature. (T-122)

The witness stated that the student’s receptive requires that she often repeat things to him because he tends to listen and respond to what he wants to. (T-123) His receptive has not improved as much. (T-124) Academically, the student is at the top of his class. (Id.) His fine motor skills have improved somewhat and she has seen growth in his / areas. (Id.) The student used to everyday and now that has diminished. (Id.) The student is more independent and seems to be maturing. (T-125) She saw a lot of progress in the student at the end of last year. (Id.) She saw the most growth in the student’s / areas. (Id.) The student still has a lot of problems with fine motor skills and still needs help with his “ADL” skills. (T-126)

The witness stated that the student eats fine. (T-127) He tries to distance himself from the group and needs a lot of . (Id.) The student prefers to play alone. (Id.) The student is not to the class. (T-128) His is good. (T-129) There are times when she will find the student in place and his arms. (T-131) She is not trained in “ABA” but has done some research on her own. (Id.)

The witness stated that for activities, they have “story time”, “circle time” and “collaborative reading” where the students will try to read a story to each other. (Id.) The students arrive at the school at 8:30 AM and the school day ends at 2:00 PM. (T132)

The witness stated that the student needs a lot of “ ”, so he gets to play in the water, the sand table, with clay, lotion and shaving cream. (T-135) Both of the other adults in the class are certified as teaching assistants in education. (T-137) One of them works with the student one-to-one and in a group of two. (Id.) The student does play with other students. (T-138) However, it is never his choice as he would rather be alone. (Id.) This September, the student was more independent. (T-139) Several times when the therapist came in to get the student, he would fall down and refuse to go with them. (T-140) Last year he had no problem going with his therapist. (Id.) The witness stated that the student was out of school a couple of weeks (summer break) and maybe changed. (T-141) Also, the Parent stated that there had been some changes in her household and that maybe the student was reacting to those changes. (Id.)

The witness stated that the student’s diminished and that he goes to therapy now without a problem. (T-142) She communicates with the Parent through a notebook. (T-142-3) The Parent told her that the student does not have . (T-

143) The Parent also did not express to her any dissatisfaction with the program. (T-143-

4) The Parent always said that they were doing a great job with the student. (T-144) She believes that the last Parent/Teacher conference the Parent attended was last May. (Id.) The Parent never asked her about a change in services. (T-144-5) She believes that the school is in the process of getting the student a weighted vest. (T-145) However, the therapist told her that the student does not need a weighted vest because they are for students that are . (T-146-7)

On cross examination, the witness testified that she never requested a CPSE meeting to discuss whether the student needed a weighted vest. (T-149-50) She believes that she attended the student’s CPSE meeting last year. (T-151) She did make the student’s August 2010 IEP meeting. (T-153-4) She participated over the telephone at the student’s IEP for the 2009-2010 school year, which did not occur over the summer. (T-156) She had met the student prior to that meeting. (T-158)

The witness stated that at the beginning of the 2010-2011 school year the student engaged in some . (T-159) She can recall at least three times. (T-162) There was no counselor discussing the student’s with him. (T-163-4) The student is not receiving this year, but he did so last year. (T-164) There might have been one occasion over the summer where the student and gave a therapist a hard time. (T-165)

The witness stated that she does a quarterly report every three months. (T-167) She prepared an educational evaluation of the student. (T-168) She does a “Brigance Diagnostic Inventory for Early Intervention” to do an evaluation and for an annual review. (Id.) She did one in November for the student, because it was time for an annual report. (T-169) When a student needs to be on something, they try to take some of his “free time” to work on his needs. (T-177) During “free time’, the student would more than likely sit down one-on-one with the teacher or with another student and do some type of activity. (T-178-9) “Free time” is approximately (45) minutes. (T-180)

The witness stated that the student likes to “ ” he might the table or floor with his “farm animals” or might require some of his . (T-181) She cannot say whether the student has some characteristics of . (T-182) She had one student on the spectrum in her class who is no longer with her. (T-183) She has seen the student engage in - . (T-184) She does not allow it to be frequent because she redirects the student. (Id.) The “ ” does not encourage the student’s because she usually gives the brushing before he would start that . (T-188) She discussed this with a therapist who agreed that it was good for the student. (T-189) The student’s IEP says to give him materials. (T-190) However, the IEP does not specifically state to the student in anticipation of - . (T-190-1)

The witness stated that cognitively, the student is delayed. (T-191) The student is very bright when compared to his peers in his class. (T-194) All of the students are classified as students with disabilities. (Id.) When she performs the Brigance, she is measuring both cognitive and academic skills. (T-196) There is a difference between cognitive and academics. (T-197-8) The majority of students in her class make a full year’s progress in their test scores in a calendar year. (T-201) The students usually have problems in all areas, don’t speak, have very poor fine motor skills and their cognition and academics are very, very low. (T-206-7) She has one student in her class who is non-verbal. (T-207) One of her assistants works with the student most of the time three days per week. (T-208) If what she is doing might benefit the student more, she might take him to her table. (Id.)

The witness stated that the student is the only student that she has had in her class who is able to sound out words. (T-210) The student is the only student that she has had that can sight read. (T-211) As far as reading, the student is the best student that she has ever had. (Id.) It’s not that the student does not follow direction, it’s that he needs so much intervention and teacher assistance to understand what is expected of him. (T-214) The student is not a problem. (Id.) Neither is he not non-compliant. (Id.) The student needs a lot of hands on, visuals, tactile cues and things that help him understand what we need for him to try to do. (Id.) The witness stated that she is not aware of a time when an expert has diagnosed the student as having a disability. (T-216)

There was no substantive testimony during the witness’s re-direct examination. (T-217) There was no re-cross examination of the witness. (Id.)

The DOE’s fourth and final witness provided and services for approximately two years. (T-218-9) He is a licensed and pathologist. (T-220-1) He sees the student twice a week for (30) minute individual sessions. (T-222) He did not do an initial evaluation of the student. (T-223) He did re-evaluate the student for his annual review. (T-224)

The witness stated that the student has made significant progress in various areas. (Id.) Receptively he is doing quite well and expressively he has made progress. (Id.) However, the student is not at age level expectancy in terms of expressive skills. (Id.) Receptively, the student is basically functioning close to age level expectancy. (Id.) The student knows concepts like rote skills, counting and identifying letters. (Id.) Expressively, there maybe some skills still lacking, but the student has made significant progress. (T-225) He has not seen regression in terms of the student’s and skills. (T-226) The student has steadily progressed. (Id.)

The witness stated that the student is lagging behind typically developing peers in “pragmatic skills”, which is the ability to relate and use effectively to make his wants and needs known. (T-227) The student’s conversation skills are still limited, but the student’s communication intent has improved. (Id.) He’s works on the student’s expressive weaknesses by trying to decrease the “ ” and have him make more relevant responses. (T-229-30) The student has done well with that. (T-230) Before the student started working with him he met the student’s Parent. (T-232) The Parent acknowledged that the student had made progress. (T-233)

The witness stated that the Parent never expressed dissatisfaction with the program to him. (Id.) He’s never received any negative feedback from the Parent for . (T-234) He did not discuss other clinicians with the Parent. (Id.) The Parent has never asked him for additional services. (Id.)

On cross examination, the witness testified that the student is basically able to respond to simple direction. (T-238) “ ” is repeating prompts, verbalizations and instructions. (T-239) “ ” is also unintelligible gibbering. (T-240) This is not uncommon in young, typically developing young children. (Id.) There was no substantive testimony developed during the witness’ re-direct examination. (T-241-2) There was no re-cross examination of the witness. (T-242)

THE PARENT’S CASE

The Parent first “reserved” and then ultimately did not make an opening statement in this case. (T-18) The Parent called herself as the only witness on her behalf and submitted (8) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s only witness is the student’s mother. (T-251) She attended the CPSE meeting on August 31, 2010. (T-252) She did not agree with the IEP that was produced or with the recommended program. (T-253) She told the student’s teacher that the student is . (Id.) The student had been diagnosed with by a pediatrician who has seen him about three times, but the DOE always questioned whether he was . (T-254) She sees a lot of al problems with the student. (Id.) The student was first diagnosed with on August 14, 2009. (T-

255) However, there had been another finding from another doctor who said that it was just because at the time it was his cognitive skills. (Id.)

The witness stated that the student “ ” and “ ”, although he is smart. (T-256) He also puts his in his . (Id.) As for his “repetitive ”, the student at himself when he sleeps. (T-257) In school, they tell her that the student isolates himself. (T-258)

The witness stated that when she observed the student in school, he was his hands and was all over the place while the other students were doing what they were supposed to be doing. (T-262) The student was not really interacting with other students. (T-262-3) The school was not expecting her when she observed the student. (T-263) She saw the student being contained by one of the administrative assistants and the student was pulling on the assistants . (Id.) They were just holding the student . (Id.) She observed this for more than (20) minutes. (Id.)

The witness stated that the student cannot to change. (Id.) She was told that by one of the therapist. (Id.) At home, when the student , he throws himself on the floor and does not want to go to school. (T-264) Out of the (5) day school week, the student about three or four days of those days. (T-265) In 2009, the student used to go to school. (T-266) The student has been in Early Intervention since he was very young. (Id.) The student did not interact with other students his age in 2009. (Id.) There has been no change in the student’s interactions with other students from 2009 to 2010. (T-269)

The witness stated that the student’s current public school is not the proper setting for him. (T-270) She believes that the student might be “mildly .” (T-271) The student’s pediatrician recommended ABA for him. (T-272) She has not received any training or from the student’s current public school. (Id.) After she started the impartial hearing, the DOE had her going to different schools to attend programs and parent support groups. (T-273)

On cross examination, the witness testified that the student did see another pediatric . (Id.) That said the student was not . (T-273-4 & D-

21) When asked if she had observed the student refusing to return to class, the witness stated that she was in the hallway trying not to interfere with the evaluation. (T-276) She did not want the student to know that she was present at the school. (T-277) She did not contact the administrator and request another meeting. (T-278-9) On re-direct examination, the witness stated that the first pediatrician has not wavered from his diagnosis of concerning the student. (T-

281) The second pediatrician has not seen the student since 2009 because she does not trust his diagnosis. (Id.) There was no re-cross examination of the witness. (Id.)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

SRO Decision 06-037 states in relevant part:

One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1482)5 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]). A FAPE includes education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347).6 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 parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch.

Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id. at pp. 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir.

2000]). 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 (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate education services (Application of the Bd. 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).

I first turn to the question of whether the CPSE on August 31, 2010 was properly constituted. Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CPSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one education teacher of the student, or, if appropriate, one education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CPSE; and (10) if appropriate, the student.

Here, the CPSE meeting was attended by the Parent, the District Representative, a General Education Teacher, the student’s Education Teacher, the liaison from the student’s public school, a Parent Member and unidentified person. (P-B & T-153-4) There was no psychologist at the CPSE meeting. (P-B) The District Representative is not a psychologist. He is a administrator and a certified general and education teacher. (T-21) He is not currently a teacher and last taught about (10) years ago. (T-38) I find that the CPSE was missing a mandated member.

As noted above, “An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate education services.” (Supra) Here, the District Representative at the meeting testified that he reviewed DOE exhibits (6) through (11) at the CPSE meeting. (T-29-30) Later he testified that he did not recall seeing the student’s report (D-9) at the meeting. (T-70) Later again, he stated that did not review any of the student’s reports at the meeting. (T-48) That would leave out a review of the student’s Educational Evaluation dated May 19, 2010 which was prepared by the student’s education teacher, although the teacher did testify that she attended the meeting. (T-153-4)

There is a dispute in this case between the Parent and the DOE as to whether the student has . (T-143, 253, 255 & 273-4) Yet the two documents that address the issue of , were not reviewed by the CPSE although they are dated August 31, 2010 (same date of the meeting) and October 14, 2009 respectively. (P-D & D-21) Although the student’s teacher testified that the student was not a problem (T214), she also gave numerous examples of the student , falling down and refusing to go with therapist, in place and hand . (T-64, 131, 140, 159, 162, 165 and 184) This was corroborated by the Parent’s testimony who also testified that the student “tippy toes”, “ his hands”, and at home about three to four days out of the school weak. (T-256 & 264-5)

Despite the student’s IEP indicating that the student’s seriously interferes with his instruction, an FBA was not conducted for the student. (T-50-3) The administrator who was the District Representative at the CPSE meeting, stated that was not a basis for ordering an FBA, because “all children for the most part.” (T-64) He also stated that the student did not need an FBA because there is an assistant and two paraprofessionals in the student’s classroom. (T-65)

State and federal law require that a child’s IEP be reviewed and, if appropriate, revised periodically, but not less than annually. (See 20 U.S.C. § 1414[d][4][A][i] and 8 NYCRR 200.4[f]). What constitutes a suitable evaluation depends upon the nature of the child’s disability and the nature of the change in the child’s placement. (See SRO No. 93-22). Although an FBA is required in the initial evaluation of the child, both state and federal regulations also provide that any subsequent IEP review "shall. . .in the case of a student whose impedes his or her or that of others, consider, when appropriate, strategies, including interventions, and supports to address that ." (See 8 NYCRR 200.4[d][3] [emphasis added], 8 NYCRR 2004.[f][1][i], 34 C.F.R. § 300.346[a][2][i] and 34 C.F.R. § 300.346[b]). Federal regulations specify that "a failure to, if appropriate, consider and address these s in developing and implementing the child’s IEP would constitute a denial of FAPE to the child." (See Appendix A to Part 300 Notice of Interpretation, Section IV, Question 38)

The CSE (here the “CPSE”) must first accurately assess the child’s , drawing upon a variety of sources, including tests, parent and teacher input, and adaptive , and ensure that the information obtained is documented and carefully considered. (See 34 C.F.R. § 300.535[a][1], [a][2]). In so doing, the CPSE has an affirmative obligation to administer tests and other evaluation materials as needed to ascertain whether any additional modifications to the IEP are necessary in order for the child to participate in the general curriculum (8 NYCRR 200.4[b][5][iii]), including using instruments that may assess the contribution of al factors, where appropriate. (See 20 U.S.C. § 1414[b][2][C] and 34 C.F.R. § 300.532[i]). These tests must be tailored to assess the particular area of need of the child, not merely provide a general intelligence quotient. (See 34 C.F.R. § 300.532[d], 34 C.F.R. § 300.536[b] and 8 NYCRR 200.4[b][6][iii])

Thus, a CPSE must accurately identify a student’s needs as a first step when amending his or her IEP, which would include, where is at issue, performing an FBA and/or adding a formal management plan to the IEP where appropriate. (See SRO Nos. 01-094, 01-060, 00-081 & 99-56). Once the is assessed, where al concerns exist, any new IEP must specifically reflect which s must be changed or re in order for the child to achieve academic success. (See SRO No. 93-15).

There is ample evidence in the record that this student has severe issues that interfere with his instruction and must be assessed and specifically addressed. Accordingly, I find that the CPSE should have had an FBA and a subsequent BIP prepared for the student.

I also note that although the student’s IEP requires that he receive (P-B & D-9), the student is not being provided with that service by the DOE. (T-32, 83-4 & 163-

4) For all of the reasons stated above, I find that the student’s August 31, 2010 is invalid and that the DOE has failed to provide the student with a FAPE for the 2010-2011 school year.

I next turn to the question of whether the Parent’s proposed placement in a program that employs ABA is appropriate. (See DPC) Here I find that the record is insufficient to support such a finding. The Parent submitted a one page letter from the student’s pediatrician which in two conclusory sentences only states that the student is diagnosed with and is recommended to be placed in a program with ABA. (P-D)

The Parent also relies on a Psychological Evaluation dated March 11, 2011 (after the CPSE meeting) which does not diagnose the student with and concludes that “Findings from the present assessment, along with the history, and and and therapy evaluations, will be considered at the CPSE meeting, with eligibility determination and recommendations following from that meeting.” (P-H) The student’s Educational Evaluation dated November 17, 2010 (produced by his education teacher after the CPSE meeting) states that the student has made significant progress in his classroom setting (a ) and concludes that he should continue in this structured Centerbased classroom setting. (D-1) The student’s History Report dated May 28, 2010, states that the Parent would like the student to continue in his program and with his related services. (D-6)

For all of the reasons stated above, I must deny the Parent’s request for a program that employs ABA.

Although the necessary inquiry is at an end, I note for the record that there is nothing in the record that sustains a finding that the Parent has not cooperated with the CPSE. Therefore, I find that equitable considerations would not have barred an award on behalf of the Parent.

NOW therefore, it is hereby

ORDERED that the student’s IEP dated August 31, 2010 is annulled and that the CPSE shall forthwith comprehensively re-evaluate the student, including, but not limited to conducting an FBA and producing a BIP for the student; and it is further

ORDERED that as soon as possible after re-evaluating the student, the CPSE shall reconvene to produce a new IEP for the student; and it is further

ORDERED that the Parent’s request for attorney fee is beyond the scope of an IHO’s authority, and as such is DENIED; and it is further

ORDERED that the Parent’s request for placement in a program that employs ABA is DENIED. DATED: June 27, 2011

_________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Demand for Due Process, 11/8’/10, 4 pp. B IEP, 8/31/10, 23 pp. C IEP, 8/6/09, 18 pp. D Letter from , 8/31/10, 1 p. E Notice of Recommendation, 8/31/10, 1 p. F Authorization of IEP, 8/31/10, 1 p. G DOE Due Process Response, 11/19/10, 4 pp. H -Evaluation, 3/11/11, 12 pp.

DEPARTMENT OF EDUCATION

1 Educational Evaluation, 11/17/10, 4 pp. 2 & Re-Evaluation, 11/23/10, 6 pp. 3 Therapy, 12/2/10, 2 pp. 4 Therapy Report, 11/23/10, 5 pp. 5 Quarterly Progress Report, 11/1/10, 6 pp. 6 History Update, 5/28/10, 2 pp. 7 & Re-Evaluation, 5/21/10, 7 pp. 8 Educational Evaluation, 5/19/10, 4 pp. 9 Progress Report, 6/9/10, 3 pp. 10 Annual Therapy Rept., 6/5/09, 6 pp. 11 Annual Therapy, 6/6/10, 4 pp. 12 Bilingual History, 6/17/09, 2 pp. 13 Bilingual Evaluation, 6/17/09, 6 pp. 14 Bilingual & Evaluation, 6/17/09, 4 pp. 15 Therapy Evaluation, 7/1/09, 4 pp. 16 Therapy Evaluation Academic Transcript 6/2008, 6/17/09, 4 pp. 17 Exam, 6/28/09, 2 pp. 18 Evaluation, 7/1/09, 2 pp. 19 Referral to CPSE, 5/26/09, 4 pp. 20 Child Outcomes Summary, 8/6/09, 5 pp. 21 Clinical Summary, 10/14/09, 1 p. 22 Memorandum, 6/14/10, 1 p. 23 Family Telephone Contact,10/12/10, 1 p. 24 Consent for , Ed Form, 8/6/09, 2 pp. 25 Work Case Notes, 12/20/10, 1 p. 26 Parent Request Form, 8/24/10, 1 p.