Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student‟s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: December 14, 2010

January 26, 2011

January 31, 2011

Hearing Officer: Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 14, 2010

DOE Representative — District

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 26, 2011

Parents

Parents

Parents

(via telephone)

DOE Representative — District

DOE Representative — District

District

(via telephone) District

(via telephone)

District

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 31, 2011

Parents

(via telephone)

DOE Representative — District

DOE Representative — District

INTRODUCTION

On December 14, 2010, January 26, 2011 and January 31, 2011, I conducted an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(3) regarding the education program of a school-aged child, (“the child”). The hearing commenced at 9:50 a.m.., 10:00 a.m. and 10:00 a.m., respectively, and was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

The student, who is classified as having “ ,” is years old. The child‟s Individualized Education Program (“IEP”) dated November 12, 2009 recommended that the child receive 20 hours a week of (“ ”) for the 2009-2010 school year. Following an annual review on November 4, 2010, the IEP for the 2010-2011 school year did not recommend those services for the child. In a letter dated November 15, 2010 the child‟s filed a due process request for an impartial hearing. In that request the explained that the 20 hours of are necessary for the child to succeed in his public school placement and that it is “critical” that the services be continued.

A pendency hearing was held on December 14, 2010. At that time the child‟s stated that the services were terminated as of November 30, 2010. , who represented the District, agreed that the pendency for the case was 20 hours a week of . An Order of Pendency reflecting the hearing was issued on December 17, 2010.

On December 14, 2009 an extension for “availability of witnesses” was granted at the request of the District. On January 31, 2011 an extension for the issuance of the Decision and Order was granted at the request of the District.

THE PARENTS’ POSITION

, the child‟s , appeared pro-se at the hearing. He maintained that the Department of Education did not offer the child a free appropriate public education (“FAPE”) for the 2010-2011 school year because it eliminated the 20 hours of recommended on the IEP for the 2009-2011 school year.

THE DEPARTMENT OF EDUCATION’S POSITION

represented the District at the hearing. He maintained that the CSE correctly determined that child no longer required 20 hours a week of services and thus that the Department of Education did not deprive the child of a FAPE for the current school year.

THE EVIDENCE AT THE HEARING

The Department of Education‟s Case

has been the of , a District school, for four years. Prior to that position she was an for ten years and a for ten years ( : 26-27, 30-31). As a Ms. taught children with “varying ” including and and ( : 27). She is certified as an and education and she also has a degree in administration ( : 26). has been a special education for six years, three of which have been at . She has dual certification in education and in grades through ( : 48-49). Ms. took a workshop her first year at the school and last year she took a year-long program entitled

(“ ”), dealing with communication and socialization for children who have special needs ( : 49-50). She no longer uses in her classroom because her students this year are “a little more advanced” and the program is no longer appropriate. However, she uses on a “regular basis” ( : 50).

The child began a about or years ago in a and he advanced to an . For the past two years has been in a , currently the (“ ”) for the child ( : 56; : 28-29). Ms. has been his for both years in the class ( : 49). For the current school year the class has and “ ” , each assigned to a particular student ( : 27; : 50-51). The paraprofessionals receive training at the beginning of the school year and they have been working for the Department of Education longer than Ms. .^[1] They help facilitate learning and they work with the students on a one-to-one basis ( : 51). The students in the class are within a -year age range; some are classified as having and others are classified as having . All of the students are trying to improve their social skills and their academics ( : 28-29).

The school day begins at and ends at . Ms. described a typical day in the child‟s class and the instructional curriculum she uses in the class with the child ( : 51-52, 54-55, 59). Ms. follows the New York State curriculum, modified to meet the needs of the students in the class, and the work on social socialization as well as academics. The students are taught both individually and in groups. The goal of the school is for the students in that class to move from , a “self contained school,” to a school ( : 29-30). Ms. tries to integrate social studies with literature. She uses a version of Time Magazine written for school aged children and focuses on current events and the and beyond. Currently the class is working on map skills and class is working on map skills and Ms. noted that he is doing well in that skill ( : 58). In addition to academics, Ms. incorporates art into the classroom and next semester the class will have art twice a week; this semester the class had music. The students have gym three times a week ( : 60). The class goes on weekly trips to the Bay Terrace shopping where the students shop for “classroom needs” and socialize. For the holidays, the students picked out different items and paid for them using various social and community skills ( : 56-57).

In order to determine the child‟s progress, design instruction for the child and formulate the child‟s IEP goals for the 2010-2011 school year, Ms. administered a Brigance in October 2010; the administered the portion of the 2 assessment ( : 61-62, 68-69; DOE Ex. 10). At that time the child‟s word recognition was on a grade level, oral reading was on an upper grade level, in that he “ ” does training, “especially for the new ”( : 31). The classroom get training when they begin at that school and Ms. believed they receive ongoing training from the District as well. However, the teacher is “really” the of the ( : 32, 51). The school also offers parent and support groups and parent workshops are offered once a month ( : 32-35).

2 The Brigance is a set of speech skills, language skills and basic classroom skills. Ms. chose the areas that were appropriate for the child and assessed him individually in those areas ( : 61).

was able to read a piece of material orally with at least 97% accuracy, and his reading comprehension was on a grade level ( : 63-64; DOE Ex. 10 at 3, 6). His spelling was on an upper grade level ( : 64). The child‟s math level was between and grade; he had no trouble with addition but in subtraction he often “confuses the signs” ( : 65-66; DOE Ex. 10 at 13). The Brigance is administered twice a year and more if needed. The also use “data over time” on a daily basis as well as New York State alternate assessment. The students also have portfolios and checklists ( : 60, 66, 69; : 30-31, 39).

Ms. developed the goals on pages 4 to 7 of the IEP and she explained how she addresses those goals, including the amount of time the child will be able to “attend” to the ( : 82-83; DOE Ex. 1 at 5-7).^[3] In the alternate assessment last year the child was assessed at a grade level, having received “ ” the , in math, reading and English language arts; the results from this year‟s alternate assessment were not available at the time of the hearing ( : 67, 70).

In conjunction with the in the classroom and the , Ms. developed a developed a (“ ”) and a (“ ”) for the child ( : 79-81). She stated that the implementation of the is a “team effort” in the classroom and explained that if the child becomes by an object or his own , or if he talks to himself or gets up to around the room, one of the prompts , merely by at , and he that ( : 80-81). She also explained how she the target on the child‟s and how she keeps data for the plan by a checklist and observation ( : 81-82, 86). The and the were shared with the child‟s parents at a meeting on November 4th ( : 82).

Ms. described the child as “very verbal.” During the two years that the child has been in her class she has seen him make both academic and social progress. Ms. noted that the child is a “pretty fluent reader.” He knows all of his letters and sounds and he can decode a lot of words that he does not know. His word recognition skills are currently on a grade level and his oral reading is on approximately an “upper grade level.” However, his reading comprehension is .” His handwriting has improved and he is currently using a cursive handwriting program. ( : 53-54, 5960).

Ms. uses the “Touch Math” program. She incorporates manipulatives and uses “real money” in the classroom. She testified that the child‟s math skills have improved although they are “scattered.” He can identify coins and count money “much more consistently” than he used to. He can add double digit numbers with the help of “Touch Math” and is now working on “regrouping,” the next skill in the “sequence.” However, he sometimes confuses the subtraction and addition signs ( : 53-54, 5758).

Ms. described the child as “very social.” She testified that since last year there has been a “great increase” in the child‟s social . He is initiating contact with students, questioning them appropriately, using appropriate . The child is also initiating much more contact with Ms. and with the classroom staff and than he did before ( : 53-54). Ms. testified that when the child first came to the school he “hardly spoke at all” and one would not have thought he would be able to “initiate” any conversation. However, since the child has been at the school his “language has expanded greatly” \ and he is now initiates conversation and ask questions, for example, “[H]i Ms. . Can I have an & ? ( : 36-37).

Ms. explained how she addresses the child‟s need for reminders to wash his hands when he leaves the and stated that the child he is working with the on tying his shoelaces. She noted that the child is a “visual learner” and that he is very ( : 76-78).

The child‟s “attending skills” are dependent on the particular task. Ms. stated that “overall” the child has made “great improvement” since last year in that he is able to sit for longer periods of time and that his is “more appropriate in a group” than it was last year. While he requires prompting, that is “typical” for her class. She has also seen “great improvement” in the child‟s independence and his ability to “focus in small groups” ( : 55; ” 36). Ms. noted that the child is “very appropriately placed” in her class and both she and Ms. opined that the child is in the “middle range” of his classmates ( : 56; : 35-36).

Ms. reviewed the child‟s report cards for the 2009-2010 and the 2010-2011 school years ( : 73). While the grades for the March report card had not yet been entered, Ms. testified that she was going to give the child “all twos” on that report card and maybe between two and three for some of the skills ( : 90-91). Ms. noted that she communicates with the child‟s parents via a “classroom communications journal” and she “tr[ies] to write every day” ( : 69, 87; : 38-39).

The school has three “ ” sites. When the staff feels that a child is ready for it will attempt to have a child participate in a classroom with general education students to see whether the child is ready for a complete program ( : 40; : 89). The possibility of for the child was raised on parent- night and Ms. discussed it with Ms. . However, because of his “ ” they do not believe that at this point the child is ready for in a class with to regular education students. However, the possibility may be addressed in the future ( : 40-41; : 89).

There is a school-wide plan at and each implements a plan in the classroom. Once each week the children meet with a “cluster ” who provides “positive support.” The provides “ sheets” for the students and her classroom has Wii, foosball, knock hockey and other games that the students “earn” for good during the week. There is also a “student of the month” for the whole school ( : 38).

Ms. and Ms. were aware that child has been receiving based services for “quite a few years.” Ms. was “not sure” whether those services were or tutoring ( : 41; : 88). Ms. testified that she “attempted to communicate” with the child‟s outside providers on several occasions and that although she received “responses” from them, the responses were “delayed and kind of vague as to what [the child] was working on at .” She stressed the importance of being on the “same page” as the outside providers in order to achieve the child‟s IEP goals ( : 88).

Ms. testified that 20 hours of -based services were put on the child‟s November 12, 2009 IEP as a result of an impartial hearing. The services continued until August 2009. They were not continued on the child‟s November 10, 2010 IEP because the child has made a lot of progress and does not need or extra one-to-one assistance at . Rather, she opined that he could benefit from an after school social skills program it if “that‟s what the parents would like” ( : 155-156, 159). Ms. stated that the job of the school is to provide a free and appropriate education for the child and noted that “every” child in the school could benefit from one-to-one tutoring at ( : 157). She testified that there are two after school programs in the school building that provide opportunities for the students to “do more socialization.” She opined that the students also needed time to relax, have recreation and “be kids.” She stated that in “perfect world” all of the students would get tutoring but “it‟s just impossible” ( : 41-42).

Ms. noted that she had a list of after school programs throughout , some of which she mentioned and some of which have “waiting lists.” She stated that the child would “probably be better off” in a program that was not for children with because he is “a little bit higher functioning” ( : 42-43). One of the after school programs at has about students but Ms. did not know the to student ratio because she is not connected to the program in any way; the program rents space in the building ( : 45-46). However, from being in the building while the program is in session she believed that there were three adults with students ( : 46). Ms. knew that the adults did work with the children and also provided some recreation in the gym. The program ends at about 5:30 p.m. ( : 46). .

Ms. participated in the child‟s annual review IEP meeting on November 4, 2010 and she reviewed the IEP developed at that meeting. Ms. testified that the IEP presented an accurate description of the child‟s intellectual functioning and his adaptive . ( : 76-78; DOE Ex. 1). Ms. did not attend the child‟s annual review on November 4, 2010 ( : 37).

Ms. stated that the child receives the related services of and and he is receiving all of his “mandates” ( : 39-40). She testified that she believed the child was properly placed at and that the school has “high hopes” for the child so that in the “next couple of years” he can be placed in an LRE in another school ( : 43).

has a Bachelor‟s Degree in psychology and a Master‟s Degree in communication science. She worked in a private school for six years and has been at for four years ( : 160-161). She has been working with the child for the past two years and currently sees him for an individual session twice a week for 30 minutes and in a group of three once a week for 30 minutes ( : 162).

Ms. described the methodologies she uses with the child and the goals that she is working on with the child, including social goals ( : 164-165, 170). She testified that the child‟s expressive language has “gotten pretty appropriate” although “a lot of his language is rote,” for example, things he has heard before from others or on television. He speaks well and can answer most questions; however, he requires some contextual prompting and cues to answer what they are actually talking about as opposed to what the child thinks they are talking about ( : 162). She described the child‟s receptive language as “okay.” Due to , the child requires some contextual cuing when material is presented to him. He seems to understand the material when they are reading, but if there is more than one task in a direction he loses focus. Therefore, she breaks down directions for the child ( ; 163-163). The child‟s is intelligible and he can be understood by someone who is not familiar with him. She testified that the child‟s is “excellent” in the one-to-one sessions, during which he is “very attentive” and not distracted. However, it is more difficult for him when a third person is in the room; in that circumstance it is difficult for him to stay seated and when he does, it is difficult for him to sit still and he plays with his hands. However, she noted that he has made “significant improvement” in this area ( : 163-164). Ms. produced a and language report for the child for the current school year ( : 165; DOE Ex. 12). The report notes that the child is able to follow classroom and session routines and follow directions for tasks. Ms. testified that this comment applies to both individual and group sessions, although he needs a “little more help” in the group ( : 168). The report also indicates that he child spontaneously and appropriately greets staff in the morning and that he can answer simple questions about events in the very recent past. However, this often requires cues and prompts and Ms. explained how she prompts the child ( : 168).

Ms. works with Ms. “quite often.” They are always in contact about the child‟s progress or lack thereof and discuss what they can do to improve his progress ( : 166). She testified that she has “definitely seen progress” over the last twelve months. He is sitting for longer periods of time and seems to be more aware of what is happening around him, since he now makes comments that he did not make before ( : 166167).

Ms. opined that the child‟s current mandate is sufficient to meet his needs and that he “seems to be doing well with it” ( : 169). She has not had contact with any of the child‟s outside . She called the child‟s and asked him to “shed some light” on what the providers were working on at . He suggested that she write them a note and she sent a few notes in the child‟ agenda book; however, she did not receive a response ( : 171-175; DOE Exs. 14, 15, 16). The Parent‟s Case is the child‟s . From the time the child was three years-old he did not speak and had “a lot of problems.” The child would throw himself on the floor and did not have language for asking a question. The child‟s parents took him to and from there the child went to Mr. testified that the child began to learn very slowly, “step by step” ( : 210). He stated that the child is “very smart” and that if he is shown something once, “he got it.” The child has been doing “great” with the services from the (“ ”). Before receiving the services the child was learning slowly and he did not sit in a chair for “five seconds” without getting up, jumping and running. With the combination of the services and the school, the child started doing “pretty good.” He has learned how to sit and works a lot on the computer at . However, he still has a “serious problem” with pronouns and with questions. He also distracts himself which is the reason he needs prompts ( : 211-212). Mr. explained that the child works “perfectly” on a one-to-one basis. The child is currently preparing for his first communion and is working with a woman at the church every Saturday. Mr. sits with them and prompts the child when he his ( : 212).

The ‟s goal is for the child to be able to help himself. He explained that the child has a “good brain” and that he can learn. He related that the child took the remote control and programmed the entire TV. The child also draws pictures from his imagination and he names the objects in those pictures ( : 212-213). The child does a lot for his brother and he helps his brother to do certain things ( : 214). Mr. explained that the child is doing well and he does not want the child to “lose it” or go backward; he knows that the school is “not supposed to do everything” ( : 214-215).

has a background in learning process psychology. She has a Ph.D from the Graduate of the City University of New York with a subprogram in learning processes and analysis psychology from College ( : 99). For the past fourteen years she has been working with children with and related disabilities both in school and based settings. In 2006 she opened the , of which and she is the executive . The employs s or special education who are receiving training in ( : 99).

The providers at the have been working with the child since 2006. The child was “very verbal” at the time but he had minimal eye contact and his verbal language was limited to answering some simple questions and making simple comments, much of which was self-directed talk and echoed statements of what he heard on television ( : 139, 195). If someone would model verbally for the child he would “echo it back” and he often repeated what was said, for example repeating a question rather than answering it; the child has improved in that area. The providers also worked with the child systematically to get him to respond to “wh” questions and on various language-based objectives. She explained that if the child is with people who are talking, he will not ”pick up” on the appropriate use of language; rather, he has to be taught skills such as answering questions, commenting and asking for things he needs ( : 139140). However, the child is “bright” and if he learns a skill with one provider he will generalize to some degree with others. For example, if he learns to say “Hi ” when says “Hi” to him, he will know to say “Hi ” when says “Hi” to him as well. Therefore, it takes “less teaching” of a particular skill with each person who uses that skill with the child. Nevertheless, the child does show and there is a lapse in his services. Under that circumstance, the child shows poor attention and needs a lot of prompting and a “token economy” of rewards to keep him attending, rather than a more “naturalistic reinforcement,” which she explained ( :140-142, 152, 192-193-194).

The had a reading specialist assess the child and the providers put her recommendations in “ terminology” and used it with the child in reading ( : 142). As a result, the child “flew through” the program. At one point the providers worked with the child in the school and observed that as the child walked down the hallway he would sound out words that he saw on various signs ( : 142-143). In that way the child showed some “generalization.” However, he still exhibits competing in school in that he still gets out of his seat, although less than he did previously; he also engages in stereotypy by his ( : 143, 150-151). Ms. described how the providers teach math using methodologies, including prompting strategies, modifying the presentation of the material so that the child understands it. She described the use of an intermittent schedule of reinforcement to address the child‟s poor attending skills and other ( : 146-148, 151-152).

Ms. explained that is used in the ‟s teaching to increase independence both with “language based objectives” and by “fading prompts” ( : 183-187). As an example, she described how the providers foster independence while focusing on having the child learns to brush his teeth ( : 184-185).

Ms. explained that the providers had been working with the child in the school “a little bit” but that about a year earlier the school decided that it did not want any outside providers coming into the school. At that time Ms. told her that if the providers wanted to come into the school they would have to work with the child in separate room other than the classroom ( : 187-188). However, working in a separate room would not increase the child‟s generalization and independence in the classroom any more than it would by working with the child at ( : 188-189, 197).

She testified that the methodologies that the providers have been using with the child have been “really effective” and that the providers had documentation to support that conclusion. She believed that using the procedures in the school environment is “really critical” to reach the goal of getting the child into a less restrictive environment. She noted that the child now looks at his peers and that he has “a lot of language.” While he does not always imitate all of the appropriate , he will engage with his peers with prompting ( : 143-144, 187). Since the providers are no longer permitted to work with the child in school, all of the hours are provided at ( : 144).

Ms. opined that the combination of services and the school have contributed to the child‟s success in the classroom and accounts for the fact that a “group environment” is appropriate for the child in school without a one-to-one for the attending issues ( : 149). When the providers work with the child at he socializes with his siblings and the take him to the store to generalize money skills and communicate with the cashier and to the library ( : 144, 189-191).

The child currently receives three hours of each day from Monday to Friday and five hours over the course of the weekend ( : 191). Ms. recommended that the provider hours be split “fifty fifty” between school and . While she “understood” that the school uses a model, she also testified that she has not observed the classroom and that she did know what strategies were being used in the classroom. Nor does she know whether the child‟s current has a background in . She met the child‟s only once, at the annual review in November 2010. However, she stated that the providers have made “a lot of effort” to get into the school and “at least talk with the ” so that they are on the “same page” when working with the child. Ms. opined that a combination of and is what is appropriate for the child ( : 144-145, 149, 189, 197-199, 207-208).

Ms. noted that the child still has deficits in , skills and academics. He still needs 20 hours of services because he needs skills to be “broken down” and taught systematically ( : 145, 193). Therefore, that if the goal is to “fade out some hours” of in order to make the child more independent, which she “completely underst[oo]d” and agreed with, the fading out had to be “systematic” rather than “just tak[ing] the services away that have been effective for him.” She recommended that the collaborate with the school to determine the effective approach to this decrease, including increasing the school staff‟s knowledge of implementing strategies ( : 145, 195-196). While the pre-teaching and practice the child gets at is “critical,” to have 20 hours at will not enable the providers to “fade out” the service and become independent ( : 196-197).

Ms. testified that the providers go into the public schools and observe their students. However, currently, none of the providers actually work with a child in his or her classroom; rather, they work with the students at ( : 207).

The providers have not conducted an or a in the last school year because they see the child at and because with the “continuity in his services, competing are not with his learning ( : 203-204).

is one of the child‟s and she the other ( : 93; : 200-201). She has a Master‟s Degree and is currently getting her in (“ ”); she is a board certified . She has been working part time with children at and in school for eight years. Ms. explained that she and the other providers are currently working on several IEP goals with the child, including comprehension skills, reading skills math, conversation skills as well as other areas in which the child has deficits. She opined that the services are “very important” for the child, noting that even a “small break” in services results in “great ” and it becomes “more ” to teach the child since he exhibits “more problem .” Therefore, additional time must be spent on getting him to pay rather than teaching ( : 93-94; : 201201). She explained how the address the child‟s such as to or up for a certain of time, noting that they reinforce the child for not engaging in those and engage him in appropriate ( : 95).

Ms. testified that the child is “smart” but that he requires “a lot of repetition” in his academics and social skills. She explained that they are doing “whatever the school is requiring [them] to do” in that they help him with his math assignments. In other areas the providers did their own assessments, such as the ABLLS and that they also work on “additional programs” ( : 95-96). She noted that Ms. sent her two letters and that she responded to both of them ( : 96). has been the child‟s “for quite a few years.” She is board certified in disabilities in children and since 1977 has been working exclusively with children who have disabilities since 1977 ( : 101-102, 103-104). is the of the which encompasses , and . In addition, she is the of the of and she does supplemental evaluations for children with ( : 105).

explained that the child has “ of significant and unspecified.” He also has “ ,” which means that he is “relatively better in some academic skills that require rote learning.”^[4] She noted that the child has improved “over the years” and that he is receiving “ ,” including 20 hours of based modification services ( : 102). In particular, she noted that the child is less , not as much and not things; he is also now able to “show his ”( : 102-103, 111112). explained that when she first saw the child he had no and was to .5 She could not test him or do anything else with him. However, the child has made gains since then. He can now sit down and “do tests.” While he still “verbalizes his wants” and “follows his own agenda” he can be taught and redirected with a lot of “adult reinforcement” ( : 107). She last saw the child in August 2010 ( : 102). opined that the child is making gains with the based services in addition to the “ placement.” She “strongly feels” that the child should continue to receive the “intensive services.” She expressed her concern that without those services the child will not continue to make gains. She noted that the child‟s impairs his functioning in the community and that the -based services are necessary for his social and functioning to improve ( : 103-104).

When asked on cross-examination what social methodologies she would recommend for the child, replied that she sees the child “only” once or twice a year and that the question should instead be posed to the “ and the ists. She opined that “whatever they‟re using seems to work” because the child has “made gains” and that therefore it should continue ( : 106-107, 111, 127-128, 130). She did state her belief that the child needs modification but clarified that as a she has no “professional knowledge” as to what type of modification would be best; she stated that any method that works would be appropriate ( : 107, 117-119). She explained that since the child is getting 20 hours of and he is making gains, she recommends that it continue. However, she noted that if the parent and educational professionals collaborate and agree that fewer at hours are appropriate, she would not object ( : 130-132). did not know “what exactly” the providers do with the child ( : 107, 108-110, 115-118).

described her involvement with the child as following him and monitoring his progress to see whether he is making progress, specifically, whether the “ features” and his academics are improving ( :113-114). has never observed the child in the school ( : 110-111). When asked on cross-examination how she knows that the child needs the based program if she did not know what he is receiving in school, she responded that she did not know what was being provided in either location, but that she knows he is receiving modification. explained that in her experience with children with she has seen many of them work “very well” because they have good teaching, structure and modification in school, but that if the same modification is not continued in the or the child has difficulty “carrying over” what they learned in school to a different environment and there was “ ”( : 120-122). She noted that she can tell from the child‟s in her office that he needs modification in the and the , regardless of how he is doing in school ( : 123-125).

responded affirmatively when asked by the officer whether she was stating that she has seen improvement in the child but did not know which piece of his program is resulting in that improvement ( : 117-118).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment. (20 U.S.C. § 1400[d][1][A]); see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board. of Education. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 (1982); Frank G v. Board of Education Hyde Park Central School District., 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08005, citing Rowley, 458 U. S. at 203.

However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); Application of a Child with a Disability, Appeal No. 10-123. Additionally, school districts are not required to "maximize" the potential of students with disabilities. Rowley, 458 U.S. at 189, 199; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not ,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" Walczak, 142 F.3d at 130; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Application of a Child with a Disability, Appeal No. 10-123.

I begin by noting that I credit the testimony of all of the witnesses who appeared at the hearing and base my findings of fact on that testimony, which is recounted in this Decision and Order.

The child currently receives 20 hours of at , three hours each day from Monday to Friday and five hours over the weekend. Based on the evidence and testimony presented at the hearing, as explained in detail in this Decision and Order, I find that the evidence does not support a finding that 20 hours of are necessary for the child to receive an “appropriate education” and thus that the number of hours should be reduced at this time.

The evidence and testimony show that the child has been receiving 20 hours of from the since 2006, approximately four years. The child‟s testified that before receiving the services the child was learning and did not in a for “ ” without up, and ( : 211). Ms. , the executive of the testified that at that time the child began to work with the providers, he had limited and his was limited to answering some simple questions and making simple comments, much of which was self-directed talk and echoed statements of what he heard on television ( : 139, 195). Ms. , the of , testified that when the child began at the school about three or four years ago, he was hardly spoke at all” and one would not have thought he would be able to “initiate” any conversation ( : 36-37).

The testimony and evidence also show that the child has made significant improvement over the years. The child advanced from a class to an class and for the past two years has been in a class. Ms. , the child‟s , noted that the child is now able to initiate conversation and contact with the other students and question them appropriately while using appropriate eye contact. Testimony by Ms. and Ms. indicate that the child is also initiating much more contact with the classroom staff and than he did before ( : 53-54; : 36). Ms. also stated that “overall” the child has made “great improvement” since last year in that he is able to sit for longer periods of time and that his is “more appropriate in a group” than it was last year. And, while he requires prompting, that is “typical” for her class. She has also seen “great improvement” in the child‟s independence and his ability to “focus” in small groups” ( : 55).

The evidence also shows improvement in the child‟s school work. Ms. explained that the child is in the “middle” range of the class and that he is making progress academically as well as socially. In fact, on the alternate assessments at the end of the 2009-2010 school year the child achieved “ ,” the ( : 67, 70). And she testified that the marks on his next report card will improve at least one full score, from “1” to “2” or “3” ( : 90-91).

The child‟s also described the child‟s progress and explained that the child is doing well and he does not want the child to “lose it” or go backward; he knows that the school is “not supposed to do everything” ( : 214-215). The noted that the child works “perfectly” on a one-to-one basis and that he is preparing for his first communion. The explained that the child works with a woman at the church every Saturday and that he sits with them and prompts the child when he his ( : 212).

Moreover, Ms. testimony confirmed the child‟s progress. While she maintained that is “critical” for the child because he needs skills to be “broken down” and taught “systematically,” she testified that administered only at will not help the child become more independent in school. Therefore, she opined that a “fifty-fifty” split in the hours between the classroom and the would be the appropriate program to “fade out” the services for the child. When asked if the providers had developed an or a in the last school year she replied that they did not because they see the child at and because with the “continuity in his services, competing are not interfering with his learning ( : 203-204). , the child‟s , did not offer an opinion as to which methodologies would best suit the child. However, she, too, noted the child‟s progress and opined that the combination of school and based services are “working” for the child.

While the 20 hours of may have been appropriate at an earlier time, it is apparent from the testimony of all of the witnesses that the child has made significant strides over the past few years. While I have no doubt that the child benefits from the current level of services, as would any child, the IDEA requires the creation of individualized programs reasonably calculated to enable the student to make some progress towards the goals within that program. Although it is understandable that the parents desire greater educational benefits through the auspices of special education, that does not mean that district has failed to comply with its obligations to offer the student an educational plan that was specially designed for the student and from which there reasonable likelihood that the student would receive some educational benefits.

Application of a Child with a Disability, Appeal No. 10-123. The IEP for the current school year provides appropriate goals for the child and this was not disputed at the hearing. And, it is clear from the evidence that the child I receiving more than “some educational” benefit in his class.

As noted above, Ms. testified that that at this point, 20 hours of at will not make the child more independent in the classroom. To this end, she suggested that in order to make the child more independent in the classroom and “fade out” the services, the hours be split evenly between the classroom and the . However, I know of no law or precedent that enables me to order a school to permit an outside provider to work with an individual child within the classroom. Indeed, Ms. testified that none of the providers at the actually work with a child in his or her classroom bur instead they all work with the students at ( : 207).

Of course, since the child has made progress while attending school and receiving the 20 hours of at , there is no way to quantify how much of the child‟s progress is attributable to either program. Therefore, while I find that the Department of Education is not required to pay for 20 hours of , I also find that it would be inappropriate for the services to be cut entirely. Therefore, I find that the child should continue to receive some of the services until the end of the current school year in that the hours shall be reduced to 15 hours per week instead of 20 hours per week. In making this determination I find that the Department of Education should not be required to pay for services provided to the child over the weekend and that, in light of the evidence, three hours each weekday of after spending an entire day is school is sufficient. I note that even Ms. did not testify that the child requires more than 15 hours of based .

I note that the child‟s last evaluation was conducted more than two years ago, on January 29, 2009 (HO Ex. I). I am now am ordering the Department of Education to arrange for the parents to obtain an independent evaluation to be administered to the child prior to the annual review for the 2011-2012 school year so that the CSE can accurately assess the child‟s needs at that time and determine whether the decrease in hours has resulted in any . The CSE is to consider the results of this evaluation, along with any other relevant evidence, to determine the services necessary for the child during the 2011-2012 school year.

There was some disagreement in the testimony as to the communication between the providers and Ms. . From now until the end of the current school year there is to be at least bi-weekly correspondence between Ms. and the providers regarding the methodologies and instruction used with the child in both locations. The goal and purpose of such correspondence is to increase the child‟s independence in the classroom as the hours are reduced and to prevent the child from .

ORDER

In light of the above findings of fact, it is hereby ordered that:

1) the Department of Education provide the child with 15 hours of a week at the at a rate not to exceed $ per hour;

2) from now until the end of the current school year there is to be at least bi-weekly correspondence between Ms. and the regarding the methodologies and instruction used with the child in both locations.

The goal and purpose of such correspondence is to increase the child‟s independence in the classroom as the hours are reduced and to prevent the child from ; and

3) the Department of Education is to arrange for the parents to obtain an independent evaluation to be administered to the child prior to the annual review for the 2011-2012 school year so that the CSE can accurately assess the child‟s needs at that time and determine whether the decrease in hours has resulted in any . The CSE is to consider the results of this evaluation, along with any other relevant evidence, to determine the services necessary for the child during the 2011-2012 school year Dated: March 22, 2011

, ESQ

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT:

The parent did not introduce any documents into evidence.

DEPARTMENT OF EDUCATION:

Exhibit 1 Individualized Educational Program dated November 4, 2010, 21 pages

Exhibit 2 Individualized Educational Program dated November 12, 2009, 17 pages

Exhibit 3 Functional dated November

4, 2010, 2 pages

Exhibit 4 Intervention Plan dated

November 4 2010, 1 page

Exhibit 5 Report, undated, 2 pages

Exhibit 6 Report Card 2009-2010 various

dates, 2 pages

Exhibit 7 Report Card 2010-2011 various

dates, 3 pages

Exhibit 8 Summer Report Card 2010 undated,

1 page

Exhibit 9 Math and ELA student work various

dates, 30 pages

Exhibit 10 Brigance dated October 2010, 13

pages

Exhibit 11 NYSAA Results dated January 7,

2011, 2 pages

Exhibit 12 Report dated January 6, 2011,

3 pages

Exhibit 13 Report dated January

10, 2011, 3 pages

Exhibit 14 Letter from classroom dated

June 7, 2010, 1 page

Exhibit 15 Letter to Parent from classroom

dated June 25, 2010, 1 page

Exhibit 16 Communications between the school, parent and outside providers various dates, 11 pages

HEARING OFFICER:

Exhibit I NYC

Evaluation dated January 29, 2009, 6

pages

Footnotes

[1] Ms. described the for provided by District In addition, Ms. has from . from the and Writer‟s work with the students once a week for a period of ten weeks, and

[3] Ms. testified that the also “constantly” look at the goals on the IEP to determine whether the child has been able to master them; if so, the goals are modified ( : 31).

[4] testified that the child learns “very well from input” but his “ ” and “concept in language” is “poor” ( : 106). did not recall when she first saw the child ( : 107).