New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: July 11, 2011

August 3, 2011

August 10, 2011

September 9, 2011

December 1, 2011 Actual Record Close Date: December 14, 2011 Hearing Officer: Lana S. Flame, Esq.

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

Parents

Parents

Therapist — Student

Special Ed Instructional Specialist — DOE

School (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 3, 2011

Father — Student

Mother — Student

District Representative — DOE

Teacher at (via telephone) — DOE

Therapist at (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 10, 2011

Mother — Student

Father — Student

Special Education Teacher, School (via telephone) — Student

Pathologist (via telephone) — Student

CFN Representative — DOE

Special Education Teacher, (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 9, 2011

Parents

Parents

Therapist (via telephone) — Student

Achievement Coach — DOE

Teacher, (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 1, 2011

Parents

Parents

CFN Representative — DOE

The parents of . requested an impartial hearing on his behalf in a letter dated May 25, 2011, that was received by the New York City Department of Education Impartial Hearing Office on May 26, 2011. (Ex. A). The hearing was held on July 11, 2011, August 3, 2011, September 9, 2011,and December 1, 2011, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sec. 1415 (f)(1). Lists of the documents that were accepted into evidence and the individuals who appeared each hearing day are included in this decision.

Procedural History and Extension of Time Lines

I was appointed to hear the matter on May 27, 2011. The following extensions of the timelines were granted: on July 11, 2011, the parent requested an extension of the time lines due to witness availability and it was extended for a thirty day period to August 29, 2011. (Tr. 62-63). On August 10, 2011, the parties jointly requested an extension of the time lines due to the presentation of a previously undisclosed DOE witness whose testimony was permitted with leave for the parents to cross examine the witness on the next hearing date, and the availability of the parents' witnesses due to the shift in timing. The extension was granted for thirty days to September 28, 2011. (Tr. 303-304). On September 19, the parents requested an extension due to the mother's medical needs related to her pregnancy and I granted the extension to October 28, 2011. On October 26, 2011, the parent requested an extension due to her medical needs and to allow for the hearing to proceed as scheduled for December 1, 2011. I granted one thirty day extension at that time, as permitted by the regulations, to November 26, 2011. The NYSED IHRS automatically rolled the extension date over to the next business day, November 28, 2011. On November 27 and November 28, 2011, the parties jointly requested an extension of the time lines due to the need to schedule the case to accommodate the mother's medical needs and allow time to submit closing statements. I granted an extension to December 27, 2011. (see e-mails documenting extensions, IHO Ex. III).

Background

. is a five year old boy who was classified with by the New York City Department of Education (" DOE ") Committee on Special Education ("CSE" ) as the result of a review held on May 9, 2011. There is no dispute regarding the student's classification (Tr. 17). The parents alleged that the DOE denied their son a free and appropriate public education ("FAPE" ) for the 2011-2012 school year by committing both procedural and substantive violations in the creation of his Individualized Education Program ("IEP") and subsequent recommendations. The parents alleged that the CSE did not consider the evaluations and progress reports they presented, the CSE told them inaccurate information about the services the DOE is permitted to provide, the CSE informed them that services could be determined only after their son began to attend school in September 2011, and the CSE failed to inform them of a recommendation at the May 9, 2011, CSE meeting so that the parents left not knowing what the recommended program would be and could not, therefore, consent to or reject it. Also there was no parent member present. For relief, the parents requested the following services: a special class in a community school, ; individual three times per week for thirty minutes per session; individual twice a week for thirty minutes per session and an evaluation for . (Ex. A). The parents requested services as follows: ) therapy for five hours per week and therapy three times per week for forty-five minutes per session. (Ex. A). On June 15, 2011, the parties reached a partial agreement regarding the parents' claims and waived the remainder of the resolution period. A pre-hearing teleconference was held on June 28, 2011, without a reporter. During the teleconference the DOE representative stated that she was making a motion to dismiss the parents' impartial hearing request because the parents' request was not yet ripe for adjudication. Since the parents were self-represented and were not familiar with the impartial hearing process, I determined that I would address the DOE's motion on a regularly scheduled hearing date, with a court reporter recording the hearing process, so that I could explain the necessary law to the parents and have a transcription of the proceedings. (Tr. 25-26, 28). Hearing dates were set during the pre-hearing conference. On the first day of hearing, July 11, 2011, the DOE made a motion to dismiss the parents' request, arguing that the parents' case was not yet ripe to be heard as the CSE planned to meet again to consider the results of a evaluation and since the school year had not yet started, the teachers and administration of the new placement had not yet had an opportunity to see what the student's needs are. (Tr. 19-21). The parent objected to the district's motion stating that the CSE did not review all of the evaluative material at the review and denied their request for home services they believed that their son needed. The motion to dismiss was denied. The CSE had an opportunity to consider the parents' request at the May 9, 2011, meeting and determined through its actions that the services were not necessary as part of the recommended program for the student's 2011-2012 IEP. Therefore, the issues properly were before me. (Tr. 22-25, 30).

The Department of Education Position The DOE asserts that the recommended program and the offered placement at can meet the needs of the student and provides both services that would adequately address his needs. (Tr. 31-32). The Parents' Position In addition to the procedural and substantive violations noted above, the parents assert that their son needs the at home services because he is progressing, . They attribute his progress to the combination of his preschool and additional services. The parents challenge the representations made by the DOE that the offered placement is an program and although they believe the school is appropriate for , they also believe that it is not sufficient alone. They assert that their son requires the additional and after school. (Tr. 33).

Documentary Evidence

At years old, the student was evaluated by , and diagnosed with and possible . (Tr. E-2). He received home based special education once a week and twice a week. When he was of age for Committee on Pre-School Special Education ( CPSE ) services the parents provided him with services, once a week, privately. (Ex. E-2). On September 29, 2009, at age , the student was evaluated by a , Dr. . She noted: in summary, [ .] is a youngster with significant in his , including both and as well as aspects of , impaired play skills, and which are suggestive of a youngster on the . (Ex. E-3). The recommended that . receive a full evaluation from the CPSE, including a . If this diagnosis were confirmed, the neurologist recommended that . receive , such as a five-day-a-week, 12 month a year preschool program that should include , etc. (Ex. E3). On April 1, 2010, the student was evaluated by Dr. , of Department of . He was diagnosed as having ) . Dr. recommended that . receive an additional five hours of per week. (Ex. C-3). . had an ( ) evaluation on December 8, 2010. At the time, he was receiving individual at his preschool, , twice a week for thirty minutes per session. (Ex. D). The evaluator noted that the student continues to exhibit " ( months) and ( months). It was recommended that . continue to receive in the school setting. (Ex. D2). A December 23, 2010, Progress Report, states that the years old) had in his as well as his play skills. (Ex. F-4). His month old level with some scattered skills at the months level. He demonstrated between the ages of skills between the ages of months. (Ex. F-4). At that time, he did not demonstrate comprehension of many specific words, phrases or social routines. He was noted to benefit from his teacher leading him by the hand to the next activity. The evaluator recommended continued therapy. At the time he was receiving services two times per week. The evaluator also recommended a hearing screening. (Ex. F-4). An Educational Progress Report was prepared by .'s special education teacher at on January 3, 2011. (Ex. G). . was enrolled in a self contained structured classroom with a ratio that primarily used a . He was described as . At the time, he appeared to be functioning both expressively and receptively at a domain. (Ex. G-1). He was noted to communicate through gestures and words. He responded to sounds in his environment and used . He listened and followed one step directions with both . (Ex. G-1). His teacher found . to be functioning at a level, reflecting a in the /domain. (Ex. G-2). In the area of self-help his teacher found him to be functioning at a year old level. She found his additional functioning levels as follows: cognition years, gross motor years, and fine motor years. She noted that [a]lthough he has made progress at ...the student continues to require a structured environment with consistent prompts and cues to foster learning. (Ex. G-4). The teacher also wrote a 12 Month Rationale on January 3, 2011, detailing the student's significant delays in all developmental domains and regression observed upon extended breaks. The degree of regression negatively impacts on his ability to effectively learn within the classroom environment. (Ex. H). The DOE completed a Social Update on March 3, 2011, as part of a re-evaluation since the student was aging out of the CPSE process. The social worker noted that the student may need supervision while because he . (Ex. 2). The results of the ( ), administered on March 3, 2011, showed that the student's standard score on the Interpersonal Relationships Scale, was other children . He showed the in , . On the Play and Leisure Scale, his score of , reflects that these skills when compared to other children his age. Classroom observations were completed on April 15, 2011, and May 2, 2011. Mr. observed the student in his preschool program at . Mr. noted that the class was engaged in a during which the students were using . The student '"initially engaged the [sic] activity with significant adult supervision, and . (Ex. I). The student appeared mostly unrelated, and would not always follow directions from the teacher, or support staff. After a short time [ .] appeared disinterested in the activity and began waking [sic] around the room. Mr. observed that the student was and opined that he . During the observation the student needed to work on task. He does not have independent working skills. Nor does he actively participate in group activities." (Ex. I). A May 4, 2011, letter from College provided an update on the services provided there. (Ex. 6). It noted that . has fewer than 30 words and many of these are approximations. The report notes: He was recently assessed to be at a year level with regard to .] continues to have significant delays in all other developmental domains, including social development, fine/gross motor, cognition and adaptive skills. He still demonstrates and pretend play. At home, he himself and parents still to ensure adequate intake. He requires assistance in the classroom in order to learn basic skills, stay on task, follow rules and transition between activities. Teachers observed regression of skills after extended weekends and holiday breaks. Given [ .'s] considerable needs, he would continue to benefit from a small integrated setting with a and the services his IEP provides, in addition to his outside reports. (Ex. 6) The report recommends that he continue with the types and levels of support he was receiving at the time, a program and four hours of at home services, "in order to support and promote" his development. (Ex. 6). A May 5, 2011, Educational Progress Report was written by , .'s Special Education Itinerant Teacher (SEIT) who was providing four hours of services weekly through Services. (Ex. 7). The SEIT emphasized the student's need for frequent redirection, reinforcement and refocusing in order to remain engaged in most activities. He is are difficult. The SEIT provided parent training as well. The following goals were included in .'s programs which also incorporated the parents' involvement: increasing the student's independence to complete self-help skills; and ; providing strategies to improve the student's transitions to locations and from activities; eye contact with peers and adults; the student's social interactions with person the playground; familiarizing the student with playground equipment in the park; improving gross motor skills; and improving fine motor skills. (Ex. 7-4). . was noted to make gains in most areas of development over the two months prior to the report. Despite the gains, he continued to present with in each area of development. (Ex. 7-4) On May 8, 2011, a wrote a Rationale for Additional Services . (Ex. B). At the time, the student was receiving services twice a week. She wrote that the student, years old at the time, exhibits a age , of at least years. The student's delays are characterized by and notions. , , and were also judged to be . Additional services are highly recommended at this time to . (Ex. B). At the May 9, 2011, CSE meeting, the following participants signed the attendance page of the IEP: as a special education teacher/related service provider; both parents; as a District Representative; as a School Psychologist; ,as a General Education Teacher; and as a Special Education Teacher. (Ex. 8-13). The DOE's Witnesses Mr. testified that he has been a school psychologist for the DOE for the past five years. He participated in .'s IEP meeting on May 9, 2011. He answered "Yes" to whether the parents had an opportunity to participate in a meaningful way, whether the evaluation was timely and whether the IEP review was timely. Mr. later elaborated and said that the parents both participated in the meeting, being well aware of their child's needs, while providing us with whatever information that was pertinent to the development of the IEP. (Tr. 55). Mr. testified that he attempted to conduct the ( ) with the student, but abandoned his efforts due to the student's disability and inability to complete any of the subjects. (Tr. 47). Instead Mr. did the with the teacher . (Tr. 47). The CSE considered those results as well as the results obtained by the social worker through interviewing the parent, direct observations of the student, and school records provided by . (Tr. 48). Mr. testified that the IEP was developed using these sources as well as information provided at the meeting from the parents about such as the student's patterns at home. (Tr. 49, 59). Mr. answered affirmatively to being asked whether the goals are measurable and address .'s area of weaknesses. (Tr. 49). He did not recall considering any program besides the that the CSE recommended because that program seemed to be the one that we all agreed would meet [ .'s] needs.... (Tr. 50). He believed that the recommendation is appropriate because the program is very similar to the program the student has been attending at where the ratio of students per teacher is necessary for the student to be successful and safe. (Tr. 50). Mr. did not recall if the CSE reviewed the reports provided by the parents at the CSE review. (Tr. 52-53, 58, 59). He testified that using the new program, SESIS, the CSE plugged in the information regarding the student's levels of performance that already were known to the CSE prior to the meeting, and at the meeting they added the information that actually was discussed at the meeting. (Tr. 56). Mr. stated that the parents did not see what information existed on the IEP at the start of the meeting. He stated that the information was addressed at the meeting. (Tr. 57). When asked whether the CSE discussed programs and other related services, including outside services, Mr. stated that the CSE discussed and the on the student's IEP since those were the services that we felt he needed to continue.... (Tr. 60). The parties stipulated that Ms. never was given a copy of the report written by , . (Tr. 92-93). Nor did she receive any of the parents' disclosed evidence. (Tr. 92). Ms. testified that she is a special education teacher at , with a Master's degree in special education and administration. She has been a licensed special education teacher for ten years and previously was a paraprofessional working with District special education for eighteen years. (Tr. 80-81). Currently she is teaching a class of children with . She is familiar with only from what she read in the district's evidence disclosed for the hearing, exhibits one through eleven. (Tr. 81-82, 90). After reading his IEP and looking at the goals, the teacher thought that she would be able to help the student attain his goals because she would assess him when he started the class, work with and do with the children...every day. (Tr. 82, 124-125). She testified that they keep data. She described the as going on throughout the day during every activity by just telling a child what is this, is this a chair, what color is this, what letter is this, where are we going, what are we going to do next. (Tr. 82-83, 104). Another assessment is given in May to measure the students' progress. (Tr. 88-89). If the student is not making the expected progress, the teacher will collaborate with the related services providers and parents. She also will try to determine if there is a reinforcement that is highly motivating for the child. (Tr. 89). She further testified: I do with each child. We do " " with each child. We have group. They have computer. They have so many activities and throughout those activities they're learning. (Tr. 83). Each child has their own schedule depending on their level. Each child receives on a rotating basis, coupled with group learning or time at the independent area, where they independently do a task in one of three bins. (Tr. 84, 115-116-117). She was sure that . would be able to complete some of the independent tasks (Tr. 117). Each child is supposed to receive thirty minutes of individual instruction per day. (Tr. 132133). At lunch a picture communication system is set up so that the children can request what they want. In the afternoon during snack time there is a period for manding when the children are required to request the snack that they want and data is taken. (Tr. 85). If the child does not have the skills to use one of the communication systems, they are taught how to use it. (Tr. 124). such as are addressed first through an initial assessment. Meals are supposed to be instructional time with the children requesting what they want and data taken (Tr. 85-86). If a child does not know how to feed himself, the teachers assist with a hand over hand approach, how to hold a spoon, how to bring it to their mouth and bring it down, or telling them to finish what is in their mouths (Tr. 85, 113-114). During instruction the children are grouped depending on the activity. If the child is nonverbal the paraprofessional is there to assist and the child would use some type of communication system such as a PECS book or augmentative device. (Tr. 86). She viewed .'s IEP as having a lot of the same functional levels of other children in my classroom. Some of them are lower and some of them are higher. (Tr. 87). She collaborates with the teacher and other related services providers so that all are working on the same goals. (Tr. 87). When asked whether the school had any special programs that would help . the teacher mentioned taking the children on trips out into the community. (Tr. 87-88). Ms. testified that she is not familiar with .'s current rate of learning, or present levels of functioning in the areas of academics, social, emotional, physical or speech and language skills beyond what is written in the IEP and reports in evidence, provided by the district. (Tr. 93-94, 103-104). She was unaware of the student's response to transitions. (Tr. 94). She was not sure if she is certified, but has taken many courses (Tr. 94). When asked whether or not she agrees or disagrees with the statement that her school does not offer an program, Ms stated: ... focuses on and that's what we focus on. We use a program called which is an assessment program. (Tr. 99). And then we do which is like . (Tr. 99). It's basically the same thing. (Tr. 99-100, 121-122). Ms explained that they take data on the and work on visual performance, communication performance, social skills, play skills, writing skills. (Tr. 105). She explained, using an example of the skill, matching, how it would be taught using methodology. (Tr. 121). She further explained that she viewed and the program as the same thing . In the program she uses a positive reinforcement to reward and extinguish . (Tr. 123-124). Ms. testified that she is a teacher of and children for District citywide schools and has been working for the past nine years with at . She has a Master's in special education. (Tr. 138-139). She helps the and children find ways to communicate their needs effectively working on expressive as well as skills. (Tr. 139). Ms. said that it would be difficult to answer how she would address .'s goals because she only has the IEP and would have to do her own assessment to figure out based on the IEP if the child knows these skills or it's still kind of emerging. (Tr. 141, 142, 146-147, 153-154, 178). She never met the student, spoke to any of his or read any of the progress reports written by his . (Tr. 156-157). From the social update in evidence, she understood his to be emerging. (Tr. 159-160). She addressed the skill that requires the student to improve his by recognizing four out of five one rhyming words within one academic school year. (Ex. 8-4). She stated that she first would have to ascertain whether the student even understood the concept of rhyming because it's a very high skill to know.... (Tr. 145). She uses forms of during her therapy sessions, presenting the child with of the skill she is trying to teach. (Tr. 149-150, 162). Once a child has mastered a skill, she uses to incorporate that skill in teaching another. (Tr. 150). She is not a certified . (Tr. 163). Ms. noted that it seems . has a lot of potential and the goals are very high in a sense, especially for a child coming into It's difficult because I don't know this child.... (Tr. 152). From the other documentation provided to her, she stated that it was unclear whether the thirty words the student is reported to have, he actually can " " or if he is . (Tr. 167; Ex. 6). Based on the SEIT report, she knows that . has skills. (Ex. 7). Based on these reports she thinks that the services she provides in school will address his needs. (Tr. 169). Ms. thought that the number and duration of the recommended were fair. (Tr. 178). She based her opinion on her understanding from the IEP and reports that the student seems to have a lot of potential as far as and her . (Tr. 180). The documentaion showed that he had emerging language and showed progress. (Tr. 181). She felt that three times a week would build upon that. (Tr. 181). Ms. did not know whether or not she would be the student's speech provider for the 2011-2012 school year. (Tr. 170-171). Ms. testified that she is a fourth grade special education teacher at . She testified that the school has plans for the upcoming school year to have the push into a couple of classrooms as well as train the staff and administration in their technique of . (Tr. 205, 321). She described the school as using as well as . (Tr. 205-207). In her words, is a methodology that uses all kinds of things, and falls under the big umbrella . (Tr. 206207). She also testified that except in addressing meal time goals, or on a case by case basis, the teachers at the school do not use discrete trials in their instruction. (Tr. 327328, 329). When asked by the hearing officer what the staff will do that is different from what the school is doing now, she said: To be honest, I'm not sure what they'll be able to help us with." (Tr. 212). She was not sure how long the training will be in effect. (Tr. 333-334). She stated that she could not answer whether the student requried additional and speech services outside of school because she only has read .'s IEP. (Tr. 341-342, 347). The Parents' Witnesses Ms. , 's special education teacher at the during his last year of attendance, testified that . and the other students in his class are on the lower end of functioning. (Tr. 226-227). She described . as a really student who is able to do well with positive reinforcement and prompting. He is able to and the first . (Tr. 227). He makes his needs known by bringing an adult to what it is he wants or sometimes uses communication system ( ). He can attend to tasks if there is a person right next to him guiding him. (Tr. 228). In order for the student to transition from one activity to another the be . He does nothing more than look at the teachers when his name is called. (Tr. 228-229). The time it takes for him to transition has been reduced from five to three minutes. (Tr. 228-229). . is in a classroom. (Tr. 252-253). Ms. testified that it took several months for . to get into the routine of the classroom. Now, with a person sitting next to him, he can much more easily . (Tr. 230). In the last six months, Ms. has noticed that . has become better goals for a longer period of time than before. (Tr. 229, 232, 238). Before working with the , would usually . (Tr. 232, 249). . does not , but engages either in play. (Tr. 230-231). It takes . a month or two to or new skill, working on it every single day . (Tr. 231). . can respond to commands if he is and , followed by reinforcement. (Tr. 238-239). Ms. testified that she believes that these improvements are due to the at home the student receives which she explained help him to be able to function on a higher level in the classroom as well. (Tr. 239). She has seen improvement in these skills since January. (Tr. 249). Ms. attributes the progress to a combination of the school, , . (Tr. 249). Ms. provides for about fifteen to twenty minutes of a day in her classroom. In her view, most of the that . receives is outside of school. (Tr. 246). Ms. has spoken to .'s home therapist once or twice to discuss what work should be done at home to expand what they are doing in school toward the home environment (Tr. 232, 248). Ms. testified that she participated in the May 9, 2011, CSE review, by telephone and shared 's current levels of functioning. (Tr. 240). In the 20102011 school year . made progress in several areas. " . He's using more words, meaning that he . He's showing more gestures and relating more to his peers, as well as the adults in the classroom." (Tr. 245). Ms. testified that she is a pathologist with a . (Tr. 258). She is licensed as a teacher of the handicapped. (Tr. 258). She has been .'s since July 2010 for two thirty minute sessions per week which were increased to four individual thirty minute sessions per week. (Tr. 260, 286). Ms. spends the additional time to use the , work on the student's and . (Tr. 288-290). She would accomplish these tasks by using , prompts, techniques, and the that will speak for him through . (Tr. 290). She has spoken to the at .'s school to learn what was being addressed and any progress the student had made. (Tr. 290-291). When she began to work with . he was a that had , . He was very highly He used to cry a lot. (Tr. 260). It took about three to four months for . to relate and acknowledge Ms. , and to play with her so that she could begin to work with him. (Tr. 261). He is now able to communicate better in terms of using and some gestures. (Tr. 261). He also uses a few words. (Tr. 261). Ms. testified that . has made gains since she started working with him. She described his strengths as his and with , and use and some words now. He also is using system to . (Tr. 261-262). When Ms. began to work with ., it would take him a month or two to learn, for example, some nouns or actions. She thinks it takes fewer sessions now for him to learn a new concept or word. (Tr. 262). However, she noted, he has which and impacts on his ability to try and produce more sounds together. (Tr. 262-263, 271). Since Ms. increased the weekly in May, she has seen a lot of progress in his communication skills using the . Now he is using and is approximating words. (Tr. 293). His are greater. (Tr. 293). It takes less time now for to make a transition from one activity to another, using a picture cue or "ready, set, go". (Tr. 300-301). It takes less than a minute now. (Tr. 301). J.D.'s over objects and pictures which takes time away from moving to the . (Tr. 262). After a break from receiving services it takes the student one to two sessions to return to his and after a longer break it can take about four sessions. (Tr. 264). Ms. has spoken .'s home therapist and collaborates with him regarding strategies to use with the student. Since . started to receive the therapy in January he is able to sit and attend for a longer period of time. He is able to that are up to long. He has increased his receptive comprehension of vocabulary for . (Tr. 265-266). Ms. wrote a report in May 2011 providing a rationale for why she believes . needs additional services. (Ex. B). She does not believe that three thirty minute sessions in school is sufficient for the student given the amount of progress he has made with all of the services he is currently receiving and all of the areas of need that are being addressed. (Tr. 269). She testified that he would greatly benefit from continued (see Ex. B) and added that she wants to implement a digital to increase his . (Tr. 267-268, 280). To that end, the parents have purchased which has symbols. (Tr. 281). Since the time of her May report to the date of her testimony (August 10, 2011) Ms. stated that . progressed from a year old range to an upper year old skill level, about five months of progress. (Tr. 272-273). Ms. testified that what she does differently in her sessions from what happens at is work on the student's with approximations and repetitions to increase his . (Tr. 275). Ms. thinks that . needs a total of therapy a week to work on a program that , and . (Tr. 277). She thinks that the work she is doing with is similar to the work being done at . (Tr. 277). Ms. stated that she recommended both an increase in the number of sessions as well as the length of sessions. The hour long sessions provide a lot more time to have structured activity, and to do some . In an hour session there is more time when the student can sit and attend to tasks. would result in increasing his communication. (Tr. 295). Mr. testified that he is the assistant principal of in where he supervises special education services as well as general education programs. (Tr. 360-361, 382-383). He has worked as through years. (Tr. 359). He holds a Master's degree in special education, with New York State certification for kindergarten through twelfth grade. He worked as the assistant director of special education services for the school district where he supervised children in classes and has worked with children on the . (Tr. 361). He has been trained in methodology, but is not certified. (Tr. 382). He has worked with students similar to . who he described as with , has , and poor activity of . (Tr. 359360). Mr. provided . three time per week. Two sessions were one and a half hours each and one session was for an hour. (Tr. 390). When he first began to work with ., he worked with him for six rather than four hours per week because of make up hours that were owed. Mr. explained that these additional two hours enabled him to establish a consistent routine with the student that otherwise would have been difficult to do in the four hours mandated. (Tr. 392-393). When Mr. began to work with the student, approximately six months previous to his testimony, he observed that . had challenges related to making transitions. He was unwilling to transition from locations or activities. He had a lot of task avoidance behaviors. He was unwilling to follow commands or directives. He had difficulty being . He was to participate in various programs that were introduced. (Tr. 361-362). It took Mr. more than three months before he brought the student to a consistent routine to follow to be receptive to his commands. (Tr. 362). Mr. s last session with the student was in mid-August. He had made " " by that time. Transitions still were a challenge, but he did become more receptive to changing activities and locations, and to following Mr. 's commands. His were a great improvement. His level of relatedness had improved; the way he interacted with other children and other adults, willing to say hi and bye, waving his hand using certain gestures. He showed more of an ability to follow through and sustain attention. (Tr. 362363, 364, 386-387). At first, . had difficulty sitting for more than two minutes. By August he was able to attend for about seventeen minutes for a table top activity. (Tr. 363). The student's academic skills started to improve as well. He was able to match and identify numbers and started making an association between numbers and amounts. His had increased. His ability to start segmenting sounds was starting to formulate. (Tr. 363). He now is able to identify numbers up to . He can complete puzzles of fourteen pieces. He is able to , , . (Tr. 364-365). . demonstrates an unwillingness to engage in the learning of tasks that involve skills related to . It can take to teach him a skill. For the most part , but he has a and he is able to utter some and some sounds. (Tr. 365366). Mr. also explained that the student regresses considerably after weekends or school vacation. . is more unwilling to engage in previous tasks and appears to have forgotten the previously acquired skills, sometimes taking several days to more than a week to relearn the skill. (Tr. 369). Mr. did not work with the student during these breaks from school. (Tr. 386). Mr. spoke to .'s outside and observed her in two sessions, as well as met with his pre-school special education teacher to see what motivated the student and coordinate their instruction with him. (Tr. 366-368, 387). In Mr. 's opinion, the improvements . has made over the last six months were because of the services Mr. was providing. He based his opinion on the work he has done with the student and conversations he had with Ms. .'s pre-school teacher for the 2009-2010 and 20102011 school years. (Tr. 369-370, 384-385). Specifically, the student showed improvements in his ability to transition, complete tasks, identify numbers and recognize his peers. (Tr. 397-398). The types of growth that were seen after six months of services outside of school were not previously observed in the . (Tr. 398-399). Mr. was not contacted by the CSE regarding the student. (Tr. 370). Based on his work with the student and all of his years of experience, Mr. believes that the student's needs certainly warrant direct services. His rate of progress for learning skills dictates that. (Tr. 372-373). Upon review of the student's IEP goals, Mr. testified that the student would need direct services to master several of the goals, especially because he is a and responds well to the aspects of (Tr. 379-380; Ex.8-4, 8-5, 8-6) . Mr. testified that he believes that the student requires a minimum of eight to ten hours of individual direct therapy per week. (Tr. 394). He based his opinion on the student's present level of performance and the experience of working with the student over the previous six months. (Tr. 395). He did not differentiate whether the student should receive this amount of direct service during the school day or outside of school and noted that the IEP does not provide for services, explicitly, within the document. Mr. stated that if the student received services at home, in addition to his school program, it would help the student transition those skills to home so there is more of an increase in progress in terms of what is taking place in the classroom. (Tr. 399-400). In Mr. 's opinion, these services are necessary. (Tr. 399). Mr. was uncertain whether he would continue as the student's outside of school because he is assigned his case load from the agency where he is a contractor. (Tr. 375). Mr. agrees that . is in need of a twelve month program. (Tr. 387).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The central purpose of the IDEA is to ensure that children with disabilities have available to them a free appropriate public education (“FAPE”). 20 U.S.C. Sec. 1400(d)(1)(A). See Bd. Of Educ. v. Rowley, 458 U.S. 176, 179-80 (1982). A FAPE includes special education and related services designed to meet the student's individual needs, provided in conformity with a written IEP, at public expense. 20 U.S.C. Sec. 1401(9); 20 U.S.C. Sec. 1414 (d). The special education and related services must be “tailored to meet the unique needs of the particular child and be 'reasonably calculated to enable the child to receive educational benefits.'” E.S. ex rel. B.S. v. Katonah-Lewisboro Sch. Dist., ---F. Supp. 2D ---, 2010 WL 3835008, at *1 (S.D.N.Y. Sept. 30, 2010) (quoting Rowley, 458 U.S. At 207) (additional internal quotations omitted).

A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; M.S., 231 F.3d at 102; Application of the Bd. of Educ., Appeal No. 04-031). If a procedural violation has occurred, relief is warranted if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93 94 [S.D.N.Y. 1996]), compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL3218 [S.D.N.Y. Nov. 14, 2002]), or seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 3 F. Supp.2d 144, 3 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]). Procedural Violations

The CSE's failure to even address the parents' request for their son to receive the additional services they believe he needs to appropriately meet his academic and social/emotional needs and its failure to review reports provided by the parents impeded ,'s right to a FAPE because it resulted in a loss of educational opportunity, compromised the development of an appropriate IEP resulting in a loss of educational benefits and most egregiously infringed on the parents' opportunity to participate in the IEP formulation process.

The IDEA requires that parents participate in the process of developing their child’s IEP (Appeal No. 96-31). Federal and State regulations grant parents the role of participants, not merely observers, at meetings held to develop IEPs. (8 NYCRR §200.4(c)(3); 34 C.F.R. §300.345(a)). The SRO has repeatedly held that a CSE does not fulfill its obligation to afford parents a meaningful opportunity to participate in the development of their children’s IEPs by merely listening to the parent’s concerns and then unilaterally preparing the IEPs (Appeal Nos. 91-13; 92-7; 93-42). In this case, the record supports the finding that the parents and the student's current teacher both voiced their opinions that the student needed to continue receiving the after school and services, but were stonewalled by the district in response to those concerns. As Mr. 's testimony and the IEP reflect, no consideration was given to the parents' input. Additionally, the CSE did not review the evaluations and reports the parents offered at the CSE review which included reports from the current teacher as well as the outside speech provider. (Ex. B,F,G). The CSE egregiously disregarded its obligation with regard to parental participation. Even if the CSE ultimately disagreed with the parents' opinions, it had an obligation to engage with the parents in a meaningful discussion about their concerns. As discussed more fully below, the result is an IEP that does not accurately describe the student's levels of functioning or needs.

The record also supports the finding the IEP was not fully developed at the CSE review and the parents were not informed about the final recommendation at the meeting, thereby further limiting their opportunity to agree or disagree with the outcome of the review. Indeed, in addition to the parents assertion of these facts, Mr. testified that some of the IEP document was written before the meeting with information apparently already known to the CSE about the student's levels of functioning, but the parents were not given the document to review (Tr. 52-53, 56-59). Further proof that the parents did not have a meaningful opportunity to respond to the content of the IEP is found in the dates of most of the IEP pages, well after the May 9, 2011, IEP meeting, with pages dated May 22 and May 23, 2011. (Ex. 8 @ 1-12). Only the sign in sheet bears the date of the actual meeting. (Ex. 8-13).

The district did not meet its burden of proof with respect to providing meaningful participation to the parents in violation of their procedural rights and thereby denied the student a FAPE on procedural grounds..

Substantive Violations

The district did not support its burden of demonstrating by a preponderance of the evidence that the IEP was “reasonably calculated to enable the child to receive educational benefits” Rowley 458 U.S. at 207. The district did not present any evidence to support the necessary finding that, standing alone, the IEP would be likely to produce progress, not regression” Walczak, 142 F. 3d at 130 (internal quotation marks and citation omitted).

First, the IEP does not accurately reflect the student's functioning levels or management needs at the time of the review. It does not include specific information about the number of years he is delayed in skills, so that the teachers and providers who are to instruct the student would have no idea how he is. Nowhere does it say that this is a who at most has 30 words, and those are not clearly articulated, but often understood from beginning sounds.(Ex. G). It does state that he can dress himself, in direct contradiction to the reports in evidence which state that he may need help with toileting because he can not dress himself. (Ex. 2; Ex. 6). It does say that he can eat with a fork and spoon when all of the documents in evidence say that he eats with a hand over hand approach and that his parents still feed him to ensure adequate intake.(Ex. 6). The documents also state that he does not eat during the school day. The IEP does not even reflect the functional levels that the school psychologist observed and recorded in his observation report, of a student who was significantly unrelated and engaged only with a lot of support. These inaccuracies and deficiencies might have been addressed had the parents had an opportunity to meaningfully participate and see the IEP or a draft at the meeting.

“The sufficiency of the IEP is determined from the content within the four corners of the IEP itself.” R.E. ex rel J.E. v. N.Y.C. Dep't of Educ.,10 Civ. 3176 (S.D.N.Y.

March 11. 2011). Even as written, none of the district's witnesses could state that the IEP would be appropriate to meet .'s individual needs or how it would be implemented to meet all of his needs. All of them stated that he would have to be assessed when he came to the school and his IEP would be modified as needed. In fact, the district's and noted that the goals were too advanced for a student with .'s For example, the goals include that the student shall improve his by recognizing 4 out of 5 one-syllable rhyming words within one academic year or that he will “begin to develop and improve speaking skills by repeating , within one academic year” (Ex. 4-13). These goals are not remotely appropriate for a student who at best has a thirty word vocabulary and he Similarly, the testimony offered about the coming to supplement the school program some time in October 2011 can not cure a deficient IEP. The IEP alone is not appropriate to meet needs. As stated above, the sufficiency of an IEP is determined from the IEP as written and this IEP is inadequate. See R.E. ex rel J.E. v. N.Y.C. Dep't of Educ.,10 Civ. 3176

(S.D.N.Y. March 11. 2011); D.S. v. Bayonne Bd. Of Educ., 602 F. 3d 553, 565 (3d Cir.

2010).

Additionally, as part of any evaluation, the IEP team “must review existing 34 C.F.R. § 300.305. The CSE did not have a evaluation to rely upon except that of the outside provider which was in support of continued outside services. There is no evidence that justifies terminating the student's outside services given his and the marked progress he made with the additional services. All of the evidence supports the finding that the student needs these services to achieve any meaningful rate of progress.

The record establishes that is a component of an educational program for ., but is insufficient alone to provide an appropriate education. testified that the recommended program is appropriate because it is very similar to the student's program, where he was successful. However, the student was successful there, as testified to and reported by his teacher, in part because of the home that he was receiving. The record shows that , like , primarily uses TEACCH and methodologies. At most, it uses some during the day, primarily at meal times. The parents, the student's teacher at the time of the CSE review and in her testimony, the updated report from the (Ex. 6), and Mr. 's testimony all support the finding that the student requires the additional five hours of services at home in order to make any meaningful gains.

Upon consideration of "whether the IEP 'as a whole' provided sufficient services to enable J.D. to make progress” T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 (2d Cir. 2009), I find that the DOE did not meet its burden of proving that the IEP or the recommended placement afforded . a free and appropriate public education. The record supports the finding that the CSE did not consider all of the evaluations it had available to it. The parents assert that the CSE did not review the evaluations they provided and did not remember looking at the evaluations at the review. The parents assert that they were not engaged in any discussion about .'s need for home services at the CSE meeting, and indeed, nothing in the evidence shows otherwise. The IEP itself does not accurately reflect .'s needs as described in the evaluations or the DOE's own classroom observation.

And as testified to by the DOE's witness, the goals are too advanced for a student with

.'s current deficits.

Given .'s very slow rate of progress and his significant delays, the significant progress .

was just beginning to make with the support services in place, the consistent expert opinions in the record that . required continued individualized to maintain his progress, and the absence of any evidence in the record suggesting that . would receive a non-trivial educational benefit without these support services, all support the conclusion that .

required the addition of at home services and speech services to receive a FAPE. (see P.K. and T.K. ex rel. S.K. v. New York City Dep't of Educ.)

ORDER

1. The DOE failed to provide the student with a FAPE for the 2011-2012 school year.

2. The student shall receive five hours of services, at home, at DOE expense effective immediately.

3. The student shall receive three 45 minute individual speech/feeding sessions per week at DOE expense effective immediately.

4. The CSE shall reconvene within two weeks to amend the IEP to accurately reflect the student's levels of functioning and management needs, and consequently his goals. Dated: December 27, 2011

______________________________

LANA S. FLAME, ESQ.

Impartial Hearing Officer LSF:jj

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

A Parent Due Process Report, 5/25/11, 3 pp. B Our Children First-Rationale for Additional Services, 5/8/11, 1 p. C College Report, 4/1/11, 3 pp. D Report, 12/8/10, 2 pp. E Center Neurology Report, 9/29/09, 3 pp. F Progress Report, 12/23/10, 4 pp. G Educational Progress Report, 1/3/11, 4 pages H Twelve-Month Rationale, 1/3/11, 1 p. I Classroom Observation, 4/15/11 and 5/2/11, 1 p.

DEPARTMENT OF EDUCATION

1 Health Examination Form, 12/6/10, 3 pp. 2 Social Update, 3/3/11, 1 p. 3 Vineland Evaluation, 3/14/11, 11 pp. 4 Evaluation Report, 4/20/11, 4 pp. 5 Declination of Parent Member Form, 4/29/11, 1 p. 6 College Letter, 5/4/11, 1 p. 7 Educational Progress Report, 5/5/11, 4 pp. 8 IEP, 5/9/11, 13 pp. 9 Parent Letter for Placement, 5/12/11, 1 p. 10 Resolution Agreement, 6/15/11, 2 pp. 11 Class Profile, 6/24/11, 1 p.

IMPARTIAL HEARING OFFICER

I Parents' Closing Statement, 12/1/2011, 4 pp. II Department of Education Closing Statement, 12/1/2011 III Email, 11/27//11 and 11/28/11, 2 pp.