New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth: District: 2 Hearing Requested By: Parent Date of Hearing: June 30, 2010

September 16, 2010

September 21, 2010

October 18, 2010

November 16, 2010

January 3, 2011 Hearing Officer: Ralph Pennington, Jr., Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 30, 2010

Advocate — Student

Attorney — DOE

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 16, 2010

Advocate — Student

Parents

Attorney — DOE

Executive Director, (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 21, 2010

Advocate — Student

Attorney — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 18, 2010

Advocate — Student

Parents

(via telephone) — Student

Attorney — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 16, 2010

Advocate — Student

Parents

Therapist — Student

Therapist — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 3, 2011

Advocate — Student

Parents

(via telephone) — Student

Attorney — DOE

PARENT’S POSITION

The parent contends that the Department of Education (hereinafter referred to as “Department”), has failed to offer the student an appropriate educational placement/program for the 2010-2011 school year. The parent contends that the recommended program was not appropriate in that the related services were removed for no apparent justifiable reason and such removal of services was done without proper consideration by the Committee on Special Education (CSE) team of this student’s and needs. The parent argues that the student requires the following related services of therapy of at least ninety minutes per week, ; therapy one hour per week, ; and Special Education Teacher Support Services (SETSS) services The program offered to the student was not reasonably calculated to provide educational benefit.

Thus, as to relief sought, the parent seeks the reinstatement of the related services of and therapy sessions and SETSS services.

DEPARTMENT’S POSITION

The department argues that the student’s program and school placement are appropriate for free appropriate public education (FAPE) purposes. The department contends that it was appropriate to remove the related services and SETSS services from the student’s Individualized Education Program (IEP) and the educational services sought by the parent are not appropriate. The department contends that the parent does not object to the child’s classification; levels of performance; goals or placement. The student’s deficits were being addressed during his school day and there was no need for additional related services outside of school. The department further argues that the parent’s educational program is not appropriate for the subject student.

The subject IEP of May 26, 2010 classified the student as and the for School was the recommended placement. The recommended ratio is to be . A twelve month school year was recommended. The student was to receive an technology device and education transportation.

Evidence presented: On Behalf of the Department;

, , Department, testified as to her educational background (Tr.29). She has board certification in analysis (Tr.29). She has been working with students with since 1987 (Tr.30). She has been at her current school since 2005 (Tr.31). She gave her work history (Tr.31-32). She described her academic duties (Tr.32). Next, she testified as to the occurrences of the development workshops (Tr.33). Her school has a total of thirty students and a one to one instructional ratio (Tr.35). Each classroom has four students with four adults (Tr.35). All the students are classified with (Tr.35). Each classroom has a education teacher (Tr.36). The students are grouped by age and functional level (Tr.37). There are eight classrooms and she gave a description of the layout of the school (Tr.38-39).

Hence, she testified that the school follows the applied (hereinafter referred to as (Tr.40). She gave a definition of ABA (Tr.41). All of the teachers have master’s degrees and the paraprofessionals have a bachelor’s degree (Tr.42). She testified as to the background and role of the instructor position (Tr.42-43). Next, she testified to the ongoing opportunities for staff development (Tr.44-45). Classroom staff are highly supervised (Tr.45). She assists in the development of the IEP’s for the students (Tr.47). She is familiar with the subject student because she has worked closely with him and has been involved with his programming at every level (Tr.47-48).

Thereafter, she testified that the student presents with limited expressive ,his is virtually non- and he imitates some (Tr.49). He uses an device which she described (Tr.51-52). The student presents with and behaviors such as his , making repeated loud s and and his hands (Tr.53). He has some and difficulty (Tr.54). He has some issues and is selective as to the he will (Tr.54). As to strengths, the student enjoys interactions with adults, has decent skills and acquires and retains fairly well (Tr.54-55). His is decent and he is a good (Tr.56).

Hence, she testified that she participated in the development of the student’s IEP and some goals (Tr.57-62). Next, she testified as to his mastery of (Tr.62-66). For the subject school year, the parent did not express any concern or disagreement as to the goals (Tr.66). At the May 26, 2010 CSE review meeting, she was one of the team members (Tr.71). She testified as to whom else was present as said meeting (Tr.71-72). The witness further testified as to the contents of the discussion of said meeting (Tr.7582). Personal goals were discussed at the CSE review meeting (Tr.85-89). The instructional staff would be responsible for implementing some of the IEP goals (Tr.9092). Further, she testified as to other IEP goals and how they are being addressed in the classroom (Tr. 91-121). It was recommended that his placement be continued (Tr.121).

Furthermore, said witness testified that the parent was not in agreement with the related services recommendations (Tr.122). The CSE team felt that there was a duplication of goals with the outside therapies (Tr.123). She felt that the student would receive instruction throughout the day and the goals and objectives targeted during the day were sufficient to address his needs (Tr.123-124). The CSE team reviewed some reports (Tr.125-126). The SETSS provider participated at the CSE review meeting (Tr.128-129). Progress had been made and would continue to be made without the related services (Tr.130). The student is to progress but she felt that there was some progress in all domains (Tr.131).

Thereafter, the witness testified as to the goals which are not listed in the IEP (Tr.138139). She then described the progress that the student has made (Tr.140-141). She identified his classroom staff (Tr.141-142). She would supervise the classroom staff and she stated how she would do so (Tr.143-145). Next, she testified as to the recent modifications to the student’s behavior plan (Tr.145-147). The parent is aware of the additional goals (Tr.147). The school would not implement a goal which the parent did not consent to (Tr.149). The parent did not express any concerns as to the goals noted on the skill acquisition sheet (Tr.150).

Moreover, said witness testified as to the structure of the student’s classroom (Tr.150-151). Said witness testified as to the group instruction which is provided to the student at the communal table (Tr.152-153). She further testified as to the types of assessments of students that her school conducts (Tr.154-155). She stated as to the type of data collected (Tr.159-160). All instructional staff are responsible for collecting data (Tr.160). All staff are familiar as to the trends that are red flags (Tr.162). Each student is entitled to one visit per month, which can be initiated by the parent or teacher (Tr.162-163; 164). The visits usually last for an hour but are often longer (Tr.165). Then, she testified as to what occurs during a visit (Tr.166-167). For this student, it is his head teacher who has done the visits (Tr.168). A consultant also visited the student at (Tr.169). She described what occurred during his visit (Tr.172172). The student does not do a movement anywhere outside of his (Tr.170). The school is in the process of implementing training (Tr.173). The training goal was discussed (Tr.175-177). Parent workshops on different topics are provided throughout the year (Tr.178). Notices were sent to the student’s parent about the workshops for the 2009-2010 school year (Tr.182).

Thereafter, she testified as to the 2009-2010 goals and the student’s mastery of such (Tr.185-208). The student made progress with his IEP goals during the last school year (Tr.208). On cross examination, said witness testified that her school is housed within another school and there is some overlap with the other school population (Tr.210-211). Two other students receive SETSS services and she further testified to the type of related services other students receive (Tr.213). There are no related service providers in the school (Tr.214). There were no plans to conduct any new evaluations of the students (Tr.214-215). There was contact with his SETSS provider in the last school year (Tr.217). She was not aware if the student mastered the goals of his program (Tr.218). The student’s therapist was not contacted by the CSE team for the subject CSE review meeting (Tr.220). There were components of the IEP that were composed prior to the CSE review meeting (Tr.222). The majority of the therapy goals were also being addressed in the student’s school (Tr.228).

Furthermore, said witness testified that the consultant spent about half a day with the student (Tr.247; 248). The consultant modeled strategies which are now being implemented (Tr.248). She then testified as to techniques being used to introduce the student to other (Tr.249-251). She gave the credentials of the consultant (Tr.251). A p did participate at the subject CSE meeting (Tr.252). The student’s v is very (Tr.253). Her school is encouraging communication (Tr.254). Her school does not have and . . equipment (Tr.256). She stated the types of equipment that is in their gym (Tr.257-258). She gave examples of the student’s gross deficits (Tr.258-259). The student s reasonably well (Tr.260). The student cannot figures (Tr.265). She opined that the student’s overall rate of progress has been but (Tr.282). There was no preconference by the CSE team in regard to the subject CSE review meeting (Tr.284). The CSE team felt that the related services goals were redundant (Tr.285). She felt that the SETSS services were not required (Tr.288). The SETSS provider felt that the SETSS services should be continued (Tr.290). The parents wanted to continue the SETSS and other related services (Tr.292). The therapist did not support the removal of the therapy (Tr.293-294). Moreover, the CSE team reviewed the IEP objectives and discussed the student’s areas (Tr.295-296). She gave the credentials of the consultant (Tr.305). visits usually last more than one hour (Tr.307). On re-direct examination, said witness testified that the skills acquisition sheets are sent to the student’s parents (Tr.309). She further described the program being implemented (Tr.311-313). She testified that the CSE meeting minutes were reasonably comprehensive (Tr.314). Parents are allowed to bring whomever they want to the meetings (Tr.315-316). The parents were invited to bring providers to the CSE meeting (Tr.317). The student’s overall rate of progress has been but (Tr.322). She opined that the student has a very profound form of (Tr.323). There was a report at the CSE meeting which was discussed (Tr.324).

On re-cross examination, said witness testified that the student on sometimes (Tr.325). The school provides to the student in small pieces (Tr.326). She and the staff have an intimate knowledge of the student’s strengths and (Tr.330-331).\

On Behalf of the Parent:

, , , Parent, testified to her credentials (Tr.334). She has seen the student since July 2010 (Tr.334). The student has very severe expressive deficits and doesn’t have an effective mode of (Tr.334-335). The student also has receptive deficits (Tr.336). The school has obtained an iPad to be used as an au device (Tr.337). The student has motor and suffers from a (Tr.340). The student doesn’t have appropriate strength in functioning (Tr.340). She had some contact with one of the student’s prior teachers (Tr.341). She disagreed with the elimination of the therapy (Tr.342). She feels that the student would regress without therapy (Tr.342). On cross examination, said witness gave her educational background and credentials (Tr.343). She has training in analysis (Tr.344). She has not observed the student’s school (Tr.355). She has learned of what is occurring at school from his parents, the IEP and a discussion with the student’s teacher (Tr.355). On re-direct examination, said witness testified that she is trained and has used such therapy with the student sometimes (Tr.359). She is familiar with the device that was being used and explained why it was not appropriate (Tr.361-362). The iPad is appropriate (Tr.362). She opined that an appropriate educational program for this student requires and explained such (Tr.364).

On re-cross examination, said witness testified as to the options with devices (Tr.367). She opined that the iTouch is not appropriate because it is too small in size (Tr.367). The goal is for the student to eventually use the iTouch or iPad independently (Tr.369).

, Parent, testified that she is the biological mother of the subject student (Tr.376). The student was initially diagnosed with at about old (Tr.376). She gave the student’s educational and services history (Tr.376-378). SETSS services were removed from his IEP once the student turned age (Tr.385). She participated in the subject CSE meeting and testified as to whom was present (Tr.389-390). There was no , or parent member present at the subject CSE meeting (Tr.391). The student suffers from several (Tr.392). The SETSS services were removed because the CSE team felt the same goals were addressed in school (Tr.393). She opined that some goals are worked on in school but the student does have generalization issues (Tr.393). The student requires structure and does not appropriately with (Tr.394). training at has been challenging (Tr.394).

Hence, she testified as to how the student spends his leisure time (Tr.396-397). The student does not engage in with and (Tr.397). His diet is very (Tr.398). The student does no use a (Tr.399). The SETSS provider was working with the student’s skills (Tr.399). At the CSE meeting, there was no discussion as to the removal of the related services (Tr.402). She was not allowed to meaningful participate at the IEP meeting (Tr.402). She feels that the related services are required (Tr.406). She described the therapy program (Tr.407-408). She is in regular contact with the student’s teacher (Tr.408). The student went without a SETSS provider for three or four months (Tr.411). She feels the student is more focused when he has SETSS services (Tr.412). She was present when the SETSS provider and teacher met at her (Tr.412). She felt that therapy is an important service for the student and explained such (Tr.415). The student has issues and problems with (Tr.416). The CSE team removed the services because the same goals were being addressed in school (Tr.416). The student’s progress has been (Tr.418).

On cross examination, said witness testified that she tries to attend all of the student’s (Tr.421). She believed the subject review was an annual review (Tr.429). The student has a aid and stated the aid’s duties (Tr.430; 432). The student is able to and (Tr.433). Next, she gave the student’s after school schedule (Tr.435-443; 450-460). The parent gets the student ready in the morning (Tr.516). She further testified as to what occurs when the student comes home from school (Tr.516-517).

, , Parent, gave his credentials, training experience and work history (Tr.468-469). The student was referred to him and he began working with him about a month ago (Tr.469). He sees the student once a week for thirty minutes (Tr.470). The student presented with an inappropriate and lacks proper (Tr.471; 472). The student is to percent as to his otor skills (Tr.476). He has participated in CSE meetings in the past (Tr.477). He opined that this student requires therapy (Tr.478). He further testified as to the equipment he uses (Tr.479). Next, he described a typical session (Tr.480). He has not consulted with the student’s school but has consulted with the other therapists (Tr.481). He testified as to why collaboration with the other therapists is important (Tr.482-483).The student has made some progress towards his therapy goals (Tr.487). The witness provides integration to the student on a biweekly basis (Tr.488). On cross examination, said witness testified as to the purpose of the therapy swing (Tr.493). He did not participate in the subject CSE review meeting (Tr.499). He has not contacted the student’s school (Tr.499). The student’s mother was concerned with the student’s skills (Tr.500). He is also working on appropriate with the student (Tr.501).

On re-direct examination, he stated that he sees the student in his office (Tr.504). The student should not use a , or without the intervention of a therapist (Tr.504-505). He opined that the student continue to receive therapy is the same frequency and duration (Tr.06).

On re-cross examination, he reiterated that he would recommend the continuation of the therapy services in the IEP (Tr.509).

, , Parent, gave her credentials and background (Tr.520). She recently started working with the student and sees him twice a week for thirty minutes sessions each (Tr.521). The student presented with extreme and constant (Tr.521). She also applies deep input to the student (Tr.522). The student’s system is (Tr.524). She then testified as to how the student’s needs are addressed (Tr.524-525). She further testified as to how his issues are addressed (Tr.526). The student does well enough to engage in an a (Tr.527). The student and , although it is level (Tr.528). His grasp is (Tr.529). Next, she described a typical session with the student (Tr.530-531). The student is unable to (Tr.532). Next, she testified as to how he works on the student’s daily skills (Tr.533534). She is in contact with the other therapists (Tr.535). No one from the student’s school has contacted her (Tr.535-536). She recommends the continuation of therapy (Tr.537). She further opined that the student’s and needs could not be met by a education teacher (Tr.538). On cross examination, said witness testified that she starting seeing the student in October 2010 (Tr.554-555). She did not participate in the subject CSE review meeting (Tr.558-559). She feels that the student requires input (Tr.563). She is trying to develop a level of as to the student’s (Tr.565). She does not work much on very skills (Tr.570). The student expresses his needs through his (Tr.576-577). The deep input has a effect on the student (Tr.586). She has not contacted the school since receiving a copy of the IEP (Tr.587).

On re-direct examination, said witness testified that a education teacher cannot provide therapy methodologies (Tr.588). A typical initial evaluation takes at least an hour (Tr.588). She has seen changes in his with the input (Tr.589). The student makes more contact (Tr.589).

Thereafter, closing written remarks were submitted by the department’s attorney posthearing.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW:

I find that the evidence clearly establishes that the student was a year and month old student who was classified with . He presents with s delays and is essentially . He has started using an communication device. He has some and difficulties. He also has issues and does not appropriately or .

Further, the IEP of May 26, 2010, recommended the School as the recommended placement. The recommended staffing ratio was to be .A month school year was recommended. The student was to receive an device and education transportation. In prior school years, the student had received related services, inclusive of SETSS services, and all related services were removed from the subject IEP.

Normally, prior to addressing the substantive issues, I must address and/or review the procedural issue of whether the CSE review team was duly comprised of the proper team members. Here, there is an issue as to validity of the CSE team since no parent member was present. 8 NYCRR Sec. 200.3 states that the additional parent member is a part of the CSE team and “is not a required member if the parents of the student request that the additional parent member not participate in the meeting”. Procedural flaws do not automatically require a finding of denial of FAPE but require an analysis as to whether such procedural inadequacies resulted in the loss of educational opportunity or seriously infringe on a parent’s participation in the creation or formation of the IEP.

Here, the parent did have a seasoned advocate present, via telephone, at the subject CSE review to represent her interests. Had the advocate felt that the parent’s due process rights were being infringed upon without the presence of the parent member, she would have raised such issue either at the subject CSE review meeting or thereafter. Moreover, a review of the impartial hearing request shows that the parent did not raise the lack of a parent member as an issue. Therefore, on the basis of the record and the due process complaint the undersigned finds that the procedural flaw of no parent member is not raised by the parent, therefore the subject CSE team was duly constituted. The 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 the Board of Education were inadequate or inappropriate; the services selected by the parents were appropriate; and equitable considerations support the parent’s claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The Board of Education bears the burden of demonstrating the appropriateness of the program which it’s CSE has recommended (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-1; Application of a Child with a Handicapping Condition, Appeal No. 93-9). Further, pursuant to Florence County, et. al. v. Carter, 510 U.S. 7, 114 S.Ct. 361, the principles of the Burlington test apply and reimbursement may not be barred to a parent who chooses a private school to provide a free appropriate education for their child.

Furthermore, under the Second Circuit’s recent decision in Frank G. v. Board of Education of Hyde Park, 459 F.3d 356(2nd Circ. 2006), the standard as to prong II is appropriateness. To be reimbursable under prong II of the Burlington/Carter test, the services for which reimbursement is being sought need not be perfect, meet all of the child’s needs, or even be delivered in the child’s least restrictive environment, but merely be appropriate. Pursuant to the Frank G. case, the parents need to demonstrate with “objective evidence”, and that the private placement provides specially designed instruction to meet the student’s unique needs to permit the student to receive educational benefit. A FAPE (Free Appropriate Public Education) is offered to the student when (a) the Department 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.

Here, under this record, I find that the department has failed to establish that a FAPE was offered to the subject student in that the elimination of the related services was done without any educational or basis. The subject IEP of May 26, 2010 (Exhibit five) is not reasonably calculated to enable the student to receive educational benefit. I t fails to provide for any related services, inclusive of SETSS services and does not address or determine if the student has issues. Said in the IEP constitute a denial of FAPE. Furthermore, no reasonable grounds are established to eliminate therapy services for a student with such severe impediments. The above-noted facts are quite compelling and clearly establish that FAPE was not provided to this student under this record. The SETSS provider credibly testified as to her recommendation for the continuation of said services at the subject CSE review meeting. At the hearing, the therapist and the therapist both credibly testified as to the student’s and continued need for their services. The student’s limited skills and his early intervention of the iTouch device establish his continued and required need for therapy.

Therefore, as to prong I, the Department has not met its burden and FAPE has not been provided to the subject student, for the subject school year.

Hence, the parent bears the burden of proof with regard to the appropriateness of the services they seek for the student during the 2010-2011 school year. (Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Education of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden the parent must demonstrate that the services were proper under the Individuals with Disabilities Act (IDEA, 20 United States Code Sec. 1415(f)(1); (School Committee of the Town of Burlington v. Department of Education, Massachusetts, Supra 370).

In this case, I find that the parent has met her burden and the record establishes that the related services should not have been eliminated without further deliberation. The record further establishes that the related services should be continued. The testimony of the related service providers along with exhibits 7 and 8 is objective evidence that supports the continuation of the related services Therefore, the parent has presented sufficient objective evidence to substantiate the continuation of the related services that the student should be provided with.

As to prong III, I also find that the equitable considerations support the parent’s claim. The Department presents no evidence that the parent has not been cooperative in the process and/or development of the IEP. The school district has not demonstrated that the parent acted with the requisite level of unreasonableness or misconduct such that reimbursement should be denied on equitable grounds. The record shows that the parent has cooperated with the Department and has attended all prior meetings, including the CSE review meeting of May 26, 2010. Again, this record reflects that the parent was cooperative and performed no acts which reach the requisite level of unreasonableness or misconduct that her request should be denied on equitable grounds.

Therefore, I find the equities favor the parent who has met the third element of the Burlington/Carter standard.

After carefully considering the entire record and the applicable law and for the reasons stated herein, I find that the Department has failed to meet its burden at prong I and that the parent has met her burden at prong II of the Burlington/Carter standard and proven that the related services should be continued. A weighing of the equities favors the parent. It is hereby:

So Ordered,

I order that the department provide and continue to provide the student with the related services as noted in the interim order of June 30, 2010 for the 2010-2011 school year along with the educational program and other services noted in the May 26, 2010 IEP.

This decision rendered: June 1, 2011

____________________________

RALPH PENNINGTON, JR., ESQ.

Impartial Hearing Officer RPJ: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 RECORD

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, 6/3/10, 3 pp. 2 Department of Education Response 6/11/10, 3 pp. 3 Findings of Fact Decision in Case No. by Impartial Hearing Officer Agoston, 12/23/09, 14 pp. 4 CCP Minutes of CSE Meeting, 5/26/10, 5 pp. 5 2010-2011 IEP, 5/26/10, 11 pp. 6 School Progress Report, 4/1/10, 6 pp. 7 SETSS Provider Update Report, 5/21/10, 1 p. 8 Related Service Student Progress Report, and Therapy,

5/20/10, 5 pp. 9 2009-2010 IEP, 1/15/10, 2 pp. 10 2009-2010 IEP, 6/11/09, 28 pp. 11 School Progress Report, 4/1/09, 9 pp.