New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 3

Hearing Requested By: Parent

Date of Hearing: May 11, 2011

May 27, 2011

June 15, 2011

Hearing Officer: Dora M. Lassinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 11, 2011

Attorney — Student

Mother — Student

Father — Student

Education Coordinator (via telephone) — Student

Lead Teacher (via telephone) — Student

/ Pathologist (via telephone) — Student

Therapist (via telephone) — Student

District CSE-10-Chairperson Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 27, 2011

Attorney — Student

Mother — Student

Father — Student

BCBA Home (via telephone) — Student

Therapist (via telephone) — Student

District CSE-10 Chairperson Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 15, 2011

Attorney — Student

District CSE-10 Chairperson Designee — DOE

On March 3, 2011, the parents of., filed a due process complaint — DOE

seeking tuition reimbursement for their unilateral placement of at the — DOE

Center (hereinafter “ ”) for the 2010-2011 school year, as well as other relief. I was designated to hear this matter on March 7, 2011. The hearing commenced on May 11, 2011 and concluded on June 15, 2012. The compliance date was extended, on two occasions, with a final compliance date of July 16, 2011. (IHO Ex. II and III). Department of Education’s Position

At the outset of the hearing, the Department of Education (“DOE”) conceded that it failed to offer the a Free Appropriate Public Education (“FAPE”) for the 20102011 school year. Parent’s Position

The parents’ position is that they are entitled to be reimbursed for their unilateral placement of at effective on or about January 15, 2011. The parents are also seeking reimbursement for additional services provided to including at home Applied Analysis (“ABA”) Therapy, services, and for compensatory services from the period of time when the DOE was put on notice that its placement was not meeting ’s needs. (Tr. pp. 10-11). Evidence at Hearing is a year old boy with a classification of or Impairment. He carries a diagnosis of Developmental Disorder/ and Disorder. (Par. Ex. P, p. 1).

attended the School for and Develo9pment (“ ”) for the 2009-2010 school year.( Tr. p. 158). In a report dated January 16, 2010, ’s teacher described him as a “quiet pleasant child who appears to enjoy his peers company.” She also noted his difficulty with , s and poor gaze s. Progress was noted in his academics, skills, gross skills and toward his therapy goals. (Par. Ex. U).

On April 23, 2010, was classified by the Committee on Special Education (“CSE”) as or Impaired and recommended for placement in a New York State Approved non-public school with a staffing ratio of , related services of once per week for 30 minutes; / therapy four times per for thirty minute sessions; therapy twice per week for thirty minute sessions and therapy once per week for thirty minutes. His IEP provides for twelve month programming. (Par. Ex. C).

On the same date, the CSE issued a Final Notice of Recommendation, continuing ’s placement at , a New York State approved private day school. (Par. Ex. H).

Mr. ., ’s father, testified that from the start of the current school year, had problems with , which started to develop into some aggressive . In October, the parents received reports that was , , and . Incidents were reported with teachers and other pupils. His with his at home therapist also deteriorated. (Tr. p. 159). In November, the school staff informed the parents that the school was no longer an appropriate placement for , and that they planned to write to the CSE to inform them of that. The parents arranged for Dr. , a Board Certified Analyst (“BCBA”), to come to the school to observe there. (Tr. pp. 160-161).

On November 19, 2010, Mrs. , the principal of , wrote to the CSE stating that due to the intense nature of his , is not an appropriate program for . (Par. Ex. R). During the same time period, the parents arranged for to be evaluated at the Center for Developmental Pediatrics. Following a comprehensive neurodevelopmental evaluation, was recommended for an ABA based program for his home and school environments, with 25 hours of ABA per week at school and 15 hours per week at home with a focus on skills, play skills, selfcare and adaptive living skills, in addition to academic skills. Dr. further recommended that the ABA program be supervised weekly by a BCBA at least four hours weekly. She further recommended that receive Integration Therapy, to be provided by an therapist twice per week for thirty minutes; / therapy for five hours per week, divided between home and school; and therapy three times per week for thirty minute sessions to address fine and grapho skills. She further recommended continuation of therapy twice per week for thirty minute sessions and participation in a skills play group, ninety minutes each week. Finally, she recommended monthly interdisciplinary meetings with ’s teachers, therapists and parents. (Par. Ex. P).

On December 10, 2010, the parents wrote to the CSE requesting an emergency IEP meeting to review Dr. ’s report (which was actually submitted to the CSE on December 22, 2010) and a report prepared by Dr. . (Par. Ex. N, O). On December 22, 2010, ’s mother wrote to the CSE providing notice that the parents intend to place at within 10 business days, and to seek reimbursement for his tuition there, as well as for various related services. (Par. Ex. N). The parents never received a response to their letters to the CSE. (Tr. p. 164). On January 1, 2011, the parents signed a contract enrolling at for the period from January 15, 2011 to June 2011. The agreed upon tuition was $49,477.08. The parents paid $1,000.00 as a deposit, and agreed to payment of the balance in five installments. (Par. Ex. V). ’s last day of school at was January 14, 2011. (Par. Ex. L). In January 2011, the parents enrolled at to commence on January 18, 2011.1(Par. Ex. V).

began attending on January 19, 2011. (Tr. p. 165). Mr. T. testified that since attending , ’s severe s have been brought under control, and has made significant progress in reading and math. (Tr. p 167).

Dr. , the Education Coordinator at , testified that she is a certified special education teacher and BCBA (Tr. p. 17). is an ABA school serving children aged 3 to 12. The program incorporates and therapy and

1

did not actually begin attending until January 19, 2011 as he required Emergency Room Services on January 18, 2011. (Tr. p. 165). therapy into the teaching areas, using an ABA methodology. (Tr. p. 19). The staff meet regularly with the family, and provide parent trainings twice per month; and individualized meetings at home with parents to work on specific programs unique to their child, such as toilet training. Parent training at the school covers a variety of topics including ABA, and therapy. (Tr. p. 24-25).

The curriculum at the school incorporates several different pieces including various reading programs, math, and science. (Tr. p. 26). has a total of 50 students and nine classrooms. (Tr. p. 46).

accepted as a student based upon Dr. ’s report, Dr. ’s recommendation, and observation of within the school setting. (Tr. pp. 35-38). The school felt that at , would have academic repertoires and communication skills. similar to the other students. (Tr. pp. 36-37). is placed in Class 10, which has six students and six instructors. The class has a lead teacher (Ms.

), and a lead instructor who is a BCBA. The other four instructors have a minimum of a bachelor’s degrees, and have various degrees of experience working with students on the spectrum. (Tr. pp. 47-51). The six instructors rotate among the students to promote generalization. (Tr. p. 52). As part of the school program, receives therapy three times per week individually and therapy twice per week. Related services are also incorporated into the classroom. (Tr. pp. 55-56). The total tuition cost at is $107,950, for a twelve month school year. (Tr. p. 58).

Dr. testified that since entering , has made progress in his , through one-on-one support and redirection. If did not have one-toone support, he would stand up, sing, dance around the classroom and engage in a variety of off-task s, including scripting ( which is non-contextual). (Tr. pp. 4345). Dr. testified that is an appropriate placement for for the duration of the 2010-2011 school year. (Tr. pp. 59-60).

Ms. , ’s lead teacher at , testified that she is a certified special education teacher. (Tr. p. 66). She testified that entered her classroom in January. (Tr. p. 68). The classroom includes a play area with a computer, a group instruction table and six individual workstations, and cubbies for the students. (Tr. p. 69). is evenly matched with the students in the class. His biggest deficit is his . He emits high rates of non-contextual (“ ”) and does not initiate s with peers. (Tr. p. 70). He also puts items in his . (Tr. p. 71)

’s academic skills are strong. He can read on a grade level and is moving through a scripted math curriculum including addition and subtraction, telling time and counting money. His handwriting is good. His skills, however, do not transfer over to a group setting. (Tr. pp. 71-72).

The school has performed a functional assessment of and has developed a plan which will soon be implemented to address the and ing. (Tr. p. 72). Since January, has made steady progress toward his IEP goals in reading, math, writing and skills. (Tr. p. 74). Due to his difficulty in , needs one-to-one support to engage in appropriate play including contact, turn taking and give and take of a conversation. (Tr. p. 75). The offices of the / therapist and therapist are attached to the classroom, and the therapists are in frequent communication with the teachers. (Tr. pp. 76-78). The students are taken on trips into the community at least once per week, where the learn to generalize skills including using lists, and money. (Tr. p. 79).

All of the instructors use ABA methods with . (Tr. p. 80). also receives six hours per week of ABA therapy at home, from two therapists, who have been in frequent contact with the school. (Tr. pp. 81-82). Ms. testified that, in her opinion, is a place where can and is making meaningful progress. (Tr. p. 86).

, a licensed and pathologist employed at , testified that she provides with three thirty minutes sessions of / therapy each week, on an individualized basis. (Tr. pp. 93-95). She testified that demonstrates and characteristic of , with delays across all areas; ly, ly and pragmatically. He displays and ( what has been ). (Tr. p. 96, 98). The and scripting are constant, and interfere with . (Tr. p. 104).

Since entering , has progressed from being able to follow one step directions to following two step directions that contain modifiers. ly, he has also made gains, and the staff is fading visual prompts. He is also progressing in turn taking skills, although he needs a lot of prompting and verbal reminders. (Tr .p. 98). Ms. is in constant collaboration via email with ’s at home therapist, . is working on WH questions, and both Ms. and are working on increasing ’s sentence structure and mean length of utterance. provides two forty-five minute sessions per week of / therapy at home, which is appropriate for , due to his difficulty generalizing skills that are being taught across settings. (Tr. pp. 101-102).

, ’s therapist, testified that she works with in the gym and occasionally in the classroom. (Tr. p. 114). ’s main deficit is in his processing skills. He is highly distractible, with significant difficulty filtering out distractions in his environment. Ms. uses a integrative approach with . She works with on fine activities, including writing and his ; skills and awareness. They also use obstacle courses to help address his planning and sequencing skills. (Tr. pp. 116-117).

Ms. testified that since January, has made progress in his , and expressing his needs during the therapy sessions, both verbally, and in writing. He has also shown improvement in his control and . (Tr. p. 123).

, a BCBA, testified that she has been providing therapy and consultations for for the past few years. Currently, she devotes one and one-half hours per week to , writing and supervising his program. , another therapist, follows the programs that Ms. creates, and provides four and one-half hours per week of ABA therapy. (Tr. pp. 134-136). Ms. and Ms. work with on question discrimination, conversational , play days’ activities and addressing deficits including scripting and of objects. All of these programs address ’s and . (Tr. pp. 137-139).

Ms. attends bi-monthly meetings at , and is in consistent communication with the classroom teacher regarding ’s program at school and his plan. is making progress at school and at home, by utilizing skills he has been taught at home and at school, and generalizing programs he has been using. This collaboration helps to improve his generalization skills. (Tr. pp. 140-141). During the past several months, has shown improvement in his and skills, and in his math skills. (Tr. p. 143). Ms. is paid $130.00 per hour for her services; prorated to $195.00 for one and one-half hours. (Tr. p. 145).

, a licensed and pathologist, testified that she has provided and therapy to since June 13, 2010. Since January 2011, she has provided the services twice per week for forty-five minute sessions, at the rate of $90.00 per session. (Tr. pp. 147-149). She testified that has great difficulty with and . At present the goals are for him to respond to Wh questions, to sequence stories, categorize, and to expand his including words at a and grade level. (Tr. pp. 151-152). During the current school year, has made progress in answering Wh questions with picture cues, in very simple sentences. He has also increased his vocabulary and reading skills. His contact has also improved. (Tr. p. 154).

Ms. meets with Ms. , ’s school based and therapist, on a weekly basis. She testified that requires the additional home based and therapy, twice per week, for thirty minute sessions, due to his difficulty with generalizing in a variety of environments. (Tr. pp. 156-157).

Mr. . testified that Ms. and Ms. assist the parents in techniques to deal with ’s s, and in generalizing skills learned in the home and school environments. (Tr. pp. 169-170). The parents pay four and one-half hours per week, at the rate of $70.00 per hour. They pay Ms. for one and one-half hours per week at the rate of $130.00 per hour. The parents also pay for the two ABA therapists to have one joint one and one-half hour session per month. (Tr. pp. 171-172).

The parents submitted evidence of invoices and payments made to their at-home ABA and / providers, during the period from January through April 2011. (Par. Ex. W).2 Findings of Fact, Conclusions of Law and Order The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510 US. (1993). Appropriateness of the Recommended Program The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). In these proceedings, the DOE concedes that it failed to offer a FAPE for the 2010-2011 school year. Appropriateness of Parental Placement

To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde , 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). Cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

I find that the parents satisfied their burden of proving that provided provided with educational instruction specially designed to meet his unique needs, from January 19, 2011 through June 2011. The record indicates that provided with an intensive ABA program, with individualized instruction, and with related services of / therapy and therapy. The school addresses ’s intensive issues and his great difficulty in all areas of . Since attending the school in January, has made and academic progress.

I further find, based upon the testimony and documents in evidence, that the home based ABA and / services provided by the parents as a supplement to ’s educational program at were appropriate, and were a necessary part of his educational program, due to the severity of his and needs; and his difficulty with generalization. As no evidence was presented regarding the skills group in which participated, I find that there is no basis upon which to reimburse the parents for their expense in enrolling in that program. Equitable Considerations

I find that the parents cooperated with the CSE at all times. On December 22, 2010, the parents provided the CSE with notice of their intent to place at and to supplement his instruction with at home ABA services, / Therapy and other services, as required by 20 U.S.C. Sec. 1412[a][10][C][iii][I].

2 The parents also submitted copies of invoices from and checks to “Ready Set Play”, a skills playgroup, although no testimony or evidence was provided regarding ’s progress in the playgroup. Claim for Compensatory Education

Compensatory education may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion form, educational services for a substantial period of time during the student’s period of eligibility for special education. Application of the Board of Education of the Springville-Griffith Institute Central School District, Appeal No. 07-005. I find that the parents have failed to demonstrate ’s entitlement to an award of compensatory services.

The record indicates that provided with a comprehensive program, including all of the services recommended in his IEP, and that he made progress there during the 2009-2010 school year. Those services continued until the parents removed from the school on January 14, 2011. The formal notification to the CSE that the school was no longer appropriate for was by letter from sent on November 19, 2010. (Par. Ex. R). Assuming that the letter constituted a referral for review, the DOE was obligated to make a new placement recommendation within 60 school days of that date. See 8 NYCRR 200.4(d). The parents notified the CSE that they had arranged for to be evaluated, and remained at until the evaluation was completed, the parents had arranged for a new placement and given the required 10 business days’ notice of removal. was placed at on January 18, 2011, exactly 60 calendar days after the CSE was provided notice of the need for a re-evaluation and a new placement.

Under the circumstances, I am unable to find that there was a gross violation of the IDEA or exclusion for services during the period preceding ’s placement at . Accordingly, the parents’ claim for compensatory education is denied.

ORDER

For all of the foregoing reasons, it is hereby ordered that the DOE shall reimburse the parents for ’s tuition expense at ($49,477.08) for the period from January 18, 2011 through June 2011, upon presentation of proof of payment thereof. In

(Par. Ex. W). addition, the DOE shall reimburse the parents for ABA therapy and / therapy provided to from January 18, 2011 through June 2011, as follows:

1. / therapy, twice per week for forty-five minutes, at the rate of $90.00 per forty-five minute session;

2. ABA therapy one and one-half hours per week at the rate of $130.00 per hour

(pro-rated) for services rendered by Ms. ; plus an additional 90 minutes per month (at $130.00 per hour, pro-rated) for her services in collaborating with

Ms. ;

3. ABA therapy four and one-half hours per week at the rate of $70.00 per hour

(pro-rated); for services rendered by Ms. ; plus an additional one and one-half hours per month, at the rate of $70.00 per hour (pro-rated) for her services in collaborating with Ms. .

4. All such payments shall be reimbursed upon presentation of proof of payment thereof. Dated: July 1, 2011

________________________________

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer DL:dl

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 ON MAY 11, 2011

PARENT

A Demand for due process and fax Confirmation, dated 3/4/119 pages B DOE answer in email dated 3/11/11, 4 pages C IEP dated 4/23/10, 9 pages D IEP note dated 6/10/10, 1 page E IEP enveloped dated 6/10/10, 1 page F Progress report dated 12/10/10, 10 pages G Goals and objectives benchmarks 2010-2011, 8 pages H Final notice of recommendation dated 4/23/10, 1 page I Educational progress report From , dated 4/1/11, 3 pages J progress update from dated 3/30/11, 2 pages K therapy progress From , dated 3/30/11, 2 pages L Letter from parent to dated 2/7/11, 3 pages M Letter from to parent dated 1/25/11, 1 page N Letter from parent to district dated 12/22/10, 3 pages O Letter from parent to district dated 12/10/10, 3 pages P Psychological evaluation by Dr. , dated 12/6/10, 12 pages Q School visit report by Dr. dated 11/25/10, 6 pages R Letter from to the district dated 11/19/10, 1 page S Home report, undated, 3 pages T Home ABA report dated 11/1/10, 2 pages U Annual report from 2010-2011, 32 pages V Center School Contract 2010-2011, 2 pages W Home program invoices and proof of payment, Jan-April 2011, 21 pages X School program invoices and Proof of payment, Jan-April 2011, 7 pages Y data, 2010-2011, 10 pages Z ABA methodologies, undated, 3 pages AA Teach methodologies, undated, 3 pages BB Paraprofessional qualifications, 2 pages CC District 75 Placement Office Referral form, undated, 1 page DD Report, dated 3/20/11, 3 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 27, 2011

PARENT

EE Home-Based Therapy Progress Report dated 5/1/11, 4 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 15, 2011

PARENT

None

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I Petitioner's Post-Hearing Brief dated 6/15/11, 12 pages II Case Follow-Up Sheet dated 5/11/11, 1 page III Case Follow-Up Sheet dated 6/15/11, 1 page