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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: 15
Hearing Requested By: Parent
Date of Hearing: May 23, 2011
Hearing Officer: Diane R. Cohen, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED MAY 23, 2011
Father — Parents
Mother — Parents
Advocate and SEIT and supervisor District Representative — Parents
CPSE Administrator — DOE
SEIT Provider — Parents
/ provider — Parents
BACKGROUND
The Parents submitted a due process complaint notice (―DPCN‖), dated April 5, 2011. In their DPCN, they assert that their son had been receiving education itinerant teacher (―SEIT‖) services and services (three times per week; 45 minutes each session) at Center since September 17, 2009. They assert that he has greatly benefitted from these services and has made tremendous progress. The Parents disagree with the decision to discontinue the SEIT and services during the summer of 2011.
A hearing was held on May 23, 2011
FINDINGS OF FACT AND DECISION
Twelve month services are provided to students with disabilities under certain circumstances, including those who require such services to prevent ―substantial regression‖. Similar criteria apply to both school-age and pre-school children (8NYCRR§200.6(k)(1)(v); 8NYCRR§200.16(i)(3)(v)). The Committee on Preschool Education (―CPSE‖) determined in their annual review that the student no longer required twelve month services.
The Individualized Educational Program (the ―IEP‖), dated March 31, 2011 (Exh.
7) indicates that the CPSE met for an annual review on March 31, 2011 (See Exh, 7, p.2).* The CPSE continued to recommend SEIT services in the amount of ten one hour sessions per week and / therapy in the amount of three 45 minute sessions per week, both through June 2011; discontinuing summer services.
In attendance were the parent, as district representative, a parent member and the Educational Director of the Center (T. 19). No one signed the attendance sheet as general education or education teacher (See Exh. 7, p. 2). I note that the regulations require that a general education teacher and a education teacher (or provider) of the child attend CPSE meetings. 8NYCRR§200.3(a)(2). * I note that, although, as Ms. testified, the school year ends in June (T. 27 at 10-11: See N.Y. EDN. Law §2, paragraph 15), and the new school year begins in July, the CPSE continues to have jurisdiction over the child through August 2011. (See 8NYCRR§200.1(mm)(2)).
Although testified that she has a certification in education, she was not present at the meeting as a education teacher, but as a district representative (T. 16 at 12-13; Exh. 7, p. 2). Moreover, the education teacher or provider must be one who is either the child’s teacher or provider or who is likely to implement the IEP. (See Application of a Child With a Disability, Appeal No. 01-100). Ms. testified that she is a CPSE administrator and that her duties involve chairing meetings and assisting in placement. There was no testimony indicating that Ms. is a education teacher or provider who is likely to implement the IEP. (T. 13)
Ms. testified that the decision was made to terminate twelve-month services due to the child’s progress and the increase in his skill level (T.24). That conclusion was based upon the reports of the providers as well as discussions with the providers in advance of the meeting. However, the providers were not in attendance at the meeting (T. 21). Moreover, the reports do not address the child’s ability to retain information or the likelihood of substantial regression. They do point to ―significant progress in many areas‖, but the reports do not quantify the progress in such a way that it is clear whether the child continues to be unable to retain information over a long break (Exh. 3).
An evaluation was last performed in March 2009, when the child was less than years old (Exh. 10, 11, 12 and 13). On the - Scale, Fifth Edition, the child scored below the sixth percentile in full scale , , Verbal , Fluid reasoning, , Quantitative and Working . He was Borderline in five of those areas and Deficient in quantitative and workin . He was also Borderline in three subtests in the Non- Domain and in one subtest in the Domain; and was Deficient in one subtest in the
Domain. He scored in the Moderately Low category in , and Adaptive Composite on the Scale (See Exh. 12). Given these low scores, the fact that he has made a significant amount of progress does not indicate that he is no longer in danger of substantial regression over the summer.
The failure of a education provider to participate in the CPSE meeting is not a mere formality. In this case, the providers could have offered their opinions on the likelihood that the child would suffer substantial regression if summer services were terminated. Instead, Ms. testified that the CPSE made their determination by relying upon the reports (also referred to as ―evaluations‖) of the providers.
At the hearing, the SEIT services provider testified that the child ―has difficulty , his span is not long . He needs a lot of support and prompting to attend to task.‖ (T. 66 at 19-22). She noted that the child ―did come a very long way, but again, with a lot of support‖ (T. 67 at 7-9). She testified that ―he has a very difficult time retaining , so—and that’s where our concern was for the summer services, because even over, like a holiday, the holiday, I found that, first of all, his focusing wasn’t as sharp, and he didn’t retain some ‖ (T. 68 at 6-12). She concluded that she would expect to see ―a lot of regression‖ if the child did not receive summer services
(T. 68 at 14). That perspective of the education teacher would have been a relevant one that should have been part of the discussion at any meeting which involved a determination of whether to provide summer services. Had a provider been present, it could have had an impact on the decision to discontinue summer services.
The provider testified that she was not sure whether the child would substantially regress over the summer:
―So I have had this discussion and I thought about it. I really cannot say for certain that – obviously it’s a possibility....I don’t know, it could go either way. You know, basically he has been doing well, but he is getting a lot of support, getting a lot of attention and getting a lot of services‖ (T. 85 at 13-
23).
Ms. also testified that the decision to discontinue summer services was based in part on the fact that the Parents intended to put the child in a general education program next year (T. 27; 37; 42 at 17-18). However, a decision by parents on where to place a child is not determinative of a child’s needs.
Based upon all the foregoing, I find that the CPSE was not properly composed and that the composition had an impact on the decision that was made to terminate summer services. Based upon the failure to include a education teacher or provider of the child in the CPSE, I find that the District did not meet its burden of proof that the matter was appropriately considered and that the recommendation to discontinue services was appropriate. Had the SEIT services teacher and the provider been included in the meeting, the CPSE may have made a different decision. Although all parties agree that the child has made progress, this does not clearly answer the question of whether the child might suffer substantial regression without summer services. Although, for instance, his may have improved considerably, his deficits in other areas, such as attention, ability to focus and ability to retain information may continue to render him likely to substantially regress. I believe it is imperative for the CPSE to have a full discussion of the child’s needs with his current providers in order to more fully understand whether he is likely to substantially regress without summer services. It is also possible that additional assessments might be needed before that determination could be made.
I will therefore order that the summer services shall continue unless and until the CPSE reconvenes with all appropriate parties, including the child’s SEIT services teacher and the child’s and provider, to reconsider summer services. If the CPSE reconvenes to reconsider this issue, the Parents may request a hearing if they disagree with the determination of the CPSE.
I THEREFORE ORDER that the child shall receive ten one hour periods per week of education itinerant teacher services, and three 45 minute sessions per week of / therapy during the summer of 2011 unless and until the CPSE reconvenes with all appropriate parties to reconsider summer services. Date: June 6, 2011
______________________
DIANE R. COHEN, ESQ.
Impartial Hearing Officer
DRC:gc
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
District’s Exhibits Date of Exhibit No. of Pages
1. Hearing Request 4/5/11 2
2. Due Process Response 4/14/11 3
3. Student Progress Report December 2010 4
4. Fax Cover Sheet 2/22/11 1
5. Provision of Related Service Form 9/17/10 3
6. FNR 3/31/11 1
7. IEP 3/31/11 15
8. FNR 5/10/11 1
9. IEP 5/10/11 17
10. Educational Evaluation 3/18/09 4
11. Evaluation 3/6/09 5
12. Evaluation 3/11/09 6
13. Social History 3/5/09 2
14. Student Progress Report 2/19/10 5
15. Determination of Eligibility for school Ed. Services 4/24/09 16
16. /Related Services Form Undated 1
17. Fax Cover Sheet 10/29/09 1
18. /Related Services Form 10/20/09 2
19. Related Service Reapplication Form Undated 1
20. /Related Service Form 10/20/09 2
21. Related Service Reapplication Form Undated 1
22. Home Survey 3/5/09 1
23. School Exam Form Undated 1