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FINDINGS OF FACT AND DECISION
Case Number: 127757
Student's Name:
Date of Birth:
District: 31
Hearing Requested By: Parents
Dates of Hearing: August 3, 2010
September 7, 2010
November 16, 2010
December 7, 2010
December 14, 2010
January 19, 2011
January 21, 2011
January 26, 2011
February 17, 2011
Hearing Officer: Dora M. Lassinger
CORRECTED
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________________________________________________________________________
NAMES AND TITLES OF PERSONS WHO APPEARED August 3, 2010
CSE Chairperson, CSE 7 — DOE
School — DOE
/ — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED September 7, 2010
CSE Designee — DOE
(Via Telephone) — DOE
Parents
and — Parents
-, — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED November 16, 2010
CSE Designee — DOE
School — DOE
(Via Phone) — DOE
3 — DOE
Parents
NAMES AND TITLES OF PERSONS WHO APPEARED December 7, 2010
Department of Education Representative — DOE
(via telephone) — DOE
Education,, (via telephone) — DOE
________________________________________________________________________ — DOE
for — Parents
/ — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED December 14, 2010
District Representative — DOE
Parents
-, — Parents
/ — Parents
/ — Parents
(Via Telephone) — Parents
(Via Telephone) — Parents
Parents
NAMES AND TITLES OF PERSONS WHO APPEARED January 19, 2011
District Representative — DOE
- — Parents
4 — Parents
(Via Telephone) — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED January 21, 2011
District 31 Representative, — DOE
Parents
- — Parents
________________________________________________________________________ — Parents
Parents
Parents
(Via Telephone) — Parents
(Via Telephone) — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED January 26, 2011
District 31 Representative — DOE
Parents
-, (Via telephone) — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED February 17, 2011
District 31 Representative, — DOE
Parents
5 — Parents
________________________________________________________________________ — Parents
-, the of, requested an impartial hearing on June — Parents
21, 2010. I was designated to hear this matter on June 22,
2010 pursuant to 20 U.S.C. Section 1415(f)(1). An impartial — Parents hearing was initially scheduled for August 3, 2010. On that date, — Parents the hearing was adjourned and the compliance date extended to
September 27, 2010, to enable the parent to secure counsel. (Tr.
8/3/10 at 4).
On August 31, 2010,, of the of &,
appeared on behalf of the parent and requested an immediate pendency hearing. A — Parents pendency hearing was conducted before me on September 7, 2010. At the hearing,,
(appearing on behalf of the parent) and, the — DOE
(“DOE”) representative agreed that ’s last agreed upon IEP was the November 9,
2009 IEP (Par. Ex. B), which provided for the following services:
1. ten hours per week, provided individually;
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2. /, 3 times per week for thirty minute — Parents sessions, one-to-one;
3. one time per week for thirty minutes sessions, — Parents one-to-one;
4. two times per week for thirty minute sessions, one- — Parents to-one
5. Twelve month school year.
Following an evidentiary, hearing, I also found that was entitled to remain
Hearing Officer’s Findings of Fact and Decision
________________________________________________________________________ at during the pendency of these proceedings.
On September 21, 2010 an amended hearing request was filed by the parents’
, requesting among other things comprehensive independent evaluations at public expense, compensatory educational services and related services, and enhanced rates for those services, where applicable. (DOE Ex. 1). A hearing on the merits was conducted on November 16, 2010, December 7, 2010, December 14, 2010, January 19, 2011, January 26, 2011 and February 17, 2011.Three additional extensions of the compliance date were granted, due to the extensive testimony and issues. The compliance date was last extended to February 20, 2011. (IHO Ex. III).
Background
is a year old who has been diagnosed with (“ ”), a and mixed - . (Par. Ex. G). On January 5, 2009, when was7 years old, the Committee on Special Education (“ ”) recommended that she receive
Education (“ ”), three hours per week, as well as related services of / , and . (Par. Ex. H).
A evaluation was performed between December
2008 and March 26, 2009 by . phonological skills were
Hearing Officer’s Findings of Fact and Decision
_______________________________________________________________________ found to be compromised. She was described as very , , and active. An task that required scanning, rapid decision-making and motor responses was found to within the borderline range. Her overall intellectual functioning was in the average range. assessment revealed symptoms of . In summary, most of her neurocognitive functions were found to be adequate for her age; however her visual perception, naming or word , , , and working memory were compromised relative to age norms. She was diagnosed with a , and mixed - . It was recommended that she receive an evaluation, a - evaluation and ; three times per week, with a component three times per week, preferential seating, repeated exposure to new material, and to redirect and refocus her to tasks. A follow-up exam was recommended “only if or do not improve”. (Par. Ex. G).
On November 9, 2009, the recommended increasing services to 10 hours per week, with related services of (2 x 30),
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(1 x 30) and / ( 3 x 30), all provided on an individual basis. (Par. Ex. B).1
On April 7, 2010, the CSE met to review and recommend a “ ” . (Par. Ex. A). , a school , served as the district representative and school on the review team. In preparation for the review, Mr.
reviewed the parent’s obtained evaluation, conducted an observation, and reviewed progress reports provided by and . (Tr. pp. 85-86).[2] He did not conduct a new evaluation because he felt that evaluation was very comprehensive and new
1 By agreement of both parties, continued to receive the services recommended in the November 9, 2009 IEP during the pendency of these proceedings. According to , approximately one month prior to the November 9, 2009 meeting, the had recommended a based program for , but changed the recommendation to general education with , because it was unable to locate a smaller school for her. (Tr. pp. 455-456).
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enough and that new testing was not warranted. (Tr. p. 98-99). Nor did the CSE order an
.
Hearing Officer’s Findings of Fact and Decision
________________________________________________________________________ evaluation or a evaluation, as recommended by . (Tr. p. 102; 154).
Other than Mr. , the only other participants in the meeting were current education , and , who also served as an . The parent declined a . (Par. Ex. A; DOE Ex. 8; Tr. p. 94). The education ( ) was not available to participate on a Wednesday, which was the only day the parent indicated she was available. (Tr. p. 88). She submitted a report describing progress. (DOE Ex. 2). felt that showed good academic skills, and her overall intelligence was average. (Tr. p. 86). Mr. and the “team” concluded that would benefit from an Integrated co teaching program. (Tr. p. 87). The team chose a classification of and impairment, based upon the fact that greatest area of weakness was in processing, and that she still required services in that area. (Tr. p. 89).[3] Notwithstanding these deficits, however, the CSE review team decided to reduce / services to twice per week in a group. According to Mr. , the reason for this decision was that he felt that she would benefit from the socialization and of participating in a group. and services were terminated, based upon the progress reports submitted by , which indicated that she no longer required those services. (Tr. pp. 90-91).
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The April 7, 2010 includes, under “Present Performance”, a description, from classroom , of her pre-readiness and readiness skills. (Par. Ex. A, p. 3).
The parent disagreed with the team’s recommendation. She requested that case be deferred to the Central Based Support Team (“CBST”), but Mr. felt that would be successful in an - class with the recommended related services. (Tr. pp. 92-
93). The parent also objected to the fact that the meeting did not include a education .
Mr. rescheduled the meeting for April 22, at 9:00 A.M., to include the special education teacher. At 8:30 A.M. on April 22, the appeared and handed Mr.
a letter, explaining why she could not stay for the meeting, because she had to go to work. (Tr. pp. 124-126). Ms. , the , was present. Mr. did not reschedule the meeting after that. (Tr. pp. 125-126). Mr. testified that this was the first he learned that the parent would be unable to attend on April 22. (Tr. p.
128).
The parent also disagreed with the CSE’s decision to terminate and services. (Tr. p. 144). Mr. recalls stating that the team did not have enough information to defer the case to the CBST, as requested by the parent. (Tr. p. 148).
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Mr. testified that - classrooms can have up to students, with a maximum of 40% having IEP’s. He felt that considering that ’s academic skills were good and her intellectual skills were in the average range, she could function in a larger class setting. (Tr. pp. 156-157). One-to-one teaching was not considered for , because Mr. did not think she needed it. (t p. 168).
, the of , the school
recommended for , testified that the school serves students in grades - to .
(Tr. pp. 188-190). The school serves education students in - and classes, who participate in the same curriculum as the general education students. The curriculum is differentiated based upon the needs of the students. (Tr. pp. 190-192). The program is used to teach literacy skills. Rubrics are used to evaluate reading, writing and all other content areas. (Tr. p. 193). The students in the class receive instruction in literacy, math, social studies, science, art, music and gym. (Tr. p. 195).
Reviewing ’s IEP, Ms. testified that it is similar to that of the other students in the class. (Tr. p. 200). At present, there are only four special education students in the class. Originally, there were students in the program, however two of those students are no longer in the program. (Tr. pp. 208, 212).
Hearing Officer’s Findings of Fact and Decision
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________________________________________________________________________
, the education assigned to the recommended class, testified that the classroom includes education students with classifications of and . (Tr. pp. 257-258). One of the students performs in the average range academically and three are below average. (Tr. p.
258). Classroom instruction includes a lot of hands on activities, and modeling. (Tr. p. 259). Students who require refocusing usually to the and receive and praise. They might also be assigned a peer buddy. (Tr. p. 262). Based upon her review of evaluation, Ms. testified that she would fit in with the students in her classroom. (Tr. p. 263, 277). She testified that she addresses the needs of students with auditory processing needs through the use of remodeling, repetition, and with a where students can use headphones to listen to stories. (Tr. p.
270-271).
, ’s , testified that she has worked as an educational for seven years. (Tr. p. 355). She testified that she attended the April 7, 2010 CSE review. (Tr. p. 356). She requested that the CSE defer
’s case to the CBST for school funding, due to her concerns that an - class would not be appropriate, in light of and with . (Tr. p. 360). Mr. stated that updated testing would have to be performed in order for the case to be deferred to the CBST. (Tr. p. 363). Ms. assisted the parent in filing the original request for due process, dated June 21, 2010.
Hearing Officer’s Findings of Fact and Decision
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________________________________________________________________________
(Par. Ex. C). After they filed it, the parent showed her the final notice which she received. (Tr. p. 367).
Ms. testified that she is familiar with , the school recommended in the final notice. She went to visit the proposed class with her ,
, in early September. She was concerned about the level in the classroom, and the fact that the class had or . (Tr. p. 368) In addition, there was an adjoining class, which added to her concerns, due to . (Tr. p. 369).
, ’s , testified that received services
and services as a student with a , including , and / . (Tr. p. 451). She testified that , Ms. was never notified of the April 7, 2010 CSE review. (Tr. p. 458). Mr. attempted to contact
/ during the meeting, but was unsuccessful. Nevertheless, he felt that / services could be reduced to twice per week. In addition, the CSE informed her that they would terminate .
was not discussed. disagreed with these recommendations. She stated that told her needs three times per week. With respect to , noted that gets during and that it is too hard. (Tr. pp. 460-
462). Ms. testified that the last time received an evaluation for ,
or
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________________________________________________________________________ was before she received , when she was and - years old. (Tr. p.
463).
also disagreed with the CSE’s recommendation for a class, because she felt it would be too large. She requested that case be deferred to the CBST. The parent was told that more testing would be required in order for such a recommendation to be made. She thought Mr. would contact her regarding additional testing and that the IEP was not finalized. (Tr. pp. 465-466).
She testified that Mr. called her to reschedule the meeting for April 22, but she told him she would be unavailable. She went to the school on the date scheduled for the meeting, with a letter explaining why she could not participate. She stated that she had to work. After that, Mr. never contacted her to reschedule the meeting, and she made no attempt to contact him. (Tr. p. 469). She did not learn that an IEP had been generated as a result of the earlier April 7 meeting, until after she requested an impartial hearing, and her obtained a copy of the IEP. (Tr. pp. 466-467).
testified that the who recommended termination of had seen her for only one month. (Tr. p. 472). She testified that there was a gap in services during the 2009-2010 school year, when her prior ,
, went on . later returned to serve , and informed that still required the services.
Hearing Officer’s Findings of Fact and Decision
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________________________________________________________________________
(Tr. pp. 473-474). pointed out that ’s letters and numbers were reversed and upside down, indicating that she should continue with services. (Tr. p. 499).
testified that she received a final notice of recommendation for to attend after she requested this hearing. She went to visit the school in September on two occasions. (Tr. pp. 475-477). On the second occasion, she was able to observe the class. (Tr. p. 478). She described the classroom as small, cluttered, and with overlapping workstations. She felt that would have in this . (Tr. p. 479).
, a licensed education , testified that she provided services to , for ten hours per week from November 2009 through August 2010, through the Perfect Playground. (Tr. p. 540). She described as sweet and social, but easily . She testified that she required constant redirection. (Tr. pp. 541-542). Ms.
testified that she was present at school on the date that Mr. conducted his observation of . She told him that continued to require services, as well as other related services. (Tr. p. 543. She testified that she was not informed of the April 7, 2010 CSE review meeting, but that she did go to an April 22, 2011 meeting. She believes the canceled the meeting. (Tr. p. 548). Ms.
testified that had she attended the CSE meeting, she would not have agreed with the decision to recommend a classroom without support. (Tr. p. 548). In fact,
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________________________________________________________________________ she felt that required even more than 10 hours per week of support in a setting, where the academic demands would be greater. (Tr. p. 550).
Related Services/ Requests for Evaluations
The parent requests independent evaluations as follows: , / ,
, , , and . The DOE is not in agreement with any of the requested independent evaluations. (Tr. pp. 413; 497-498).
,a / who has worked
with since April 2008, testified that she was providing services to three times per week for thirty minute sessions during the 2009-2010 school year, and during the current school year, until approximately December 8, 2010, when she was informed that services had been reduced to twice per week for thirty minute sessions. (Tr. 309-
310). She described as a very motivated student who is very social and has excellent pragmatic skills. Her articulation is also a strength. She has weaknesses in vocabulary, word finding, recalling information, sequencing and syntax.
requires visual cues as support. (Tr. pp. 312-314). has an . She has understanding complex , and multistep directives. (Tr. pp. 315-316).
Ms. testified that she was not asked to participate in the April 7, 2010 IEP meeting. (Tr. p. 316). On January 30, 2010 she submitted a progress report recommending the continuation of / . In the report, Ms.
Hearing Officer’s Findings of Fact and Decision
17
________________________________________________________________________ left blank the section where she could request an increase or decrease in services. She simply recommended a continuation of services. (DOE Ex. 3). She testified that services should continue three times per week for thirty minute sessions individually. (Tr.
p. 318).
Following the CSE meeting, Mr. contacted Ms. and asked her if she would agree with the CSE’s decision to reduce ’a services to twice weekly in a group. Ms. stated that she did not agree with the change. She stated that if absolutely necessary, she would agree to change one session per week to a group session. (Tr. p. 321). She did not feel, however, that required group services as her strength is in pragmatics and the social aspects of . (Tr. pp.
321-322). Her recommendation continues to be that receive / three times per week individually. (Tr. p. 323).
Ms. also disagreed with the CSE’s decision to terminate services. She testified that due to her and , requires a small classroom and an additional support from an outside person to redirect her. (Tr. p. 325).
Ms. testified that has not had any breaks in service except for one point when she was receiving services in the school, in 2009. (Tr. p. 327).
Ms. is not sure when formal testing of was last performed. She believes it may have been performed in 2008. She recommended both an
Hearing Officer’s Findings of Fact and Decision
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________________________________________________________________________ auditory processing evaluation 4 and a full and evaluation to identify her strengths or weaknesses and formulate goals. (Tr. pp. 341-342).
testified in support of the parent’s request for an independent evaluation. She testified that she is a New York State licensed . She has a in clinical with a fellowship in from , and a appointment at . (Tr.
pp. 386-387). reviewed the evaluation performed of in 2009, as well as her most recent IEP and a classroom observation. She concluded that another evaluation should be performed given the concerns regarding attention, memory and processing abilities. Her fee for performing such an evaluation would be approximately $3,000. (Tr. pp. 389-390).
testified that she would redo the IQ testing as well as academic readiness skills. In addition, she would perform the Wide Range Assessment of Memory and Learning, the Hooper Visual Organization Test, maze tests and the Evaluation of
Fundamentals (CELF) and the Beery Visual Motor Integration
Hearing Officer’s Findings of Fact and Decision
_______________________________________________________________________
Test (Beery VMI). She would also review the parent’s assessment of her attention,
4 The parent obtained an evaluation on October 12, 2010, at . It was observed that had a very time and on the tasks. She exhibited in tolerance-fading memory and decoding of as well as to in background . It was recommended that receive with the emphasis on auditory training; compensatory training, preferential seating and repeat testing and an evaluation in one year. (Par. Ex. N).
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, social skills and behavior. (Tr. pp. 391-392, 394). She testified that the CELF can be part of a / evaluation, and that the Beery VMI would typically be part of an evaluation. (Tr. pp. 395-396).
, a licensed , testified that she
charges $1,200 to perform an independent and evaluation, and that she is available to conduct an evaluation of . (Tr. pp. 434-436). Ms.
testified that she provides and services for the New York City Board of Education through Related Services Authorizations. According to Ms.
, the testing performed by the DOE is limited to one or two tests, and the person who performs the testing might not even be a New York State licensed . (Tr. p. 448). She testified that her testing would consist of five to seven tests, which she would select from a library of approximately twenty tests, which might be appropriate to focus on the child’s needs. (Tr. p. 434).
, an , testified that he has an undergraduate degree in engineering and life sciences and a graduate degree in applied . He holds certification as an from the and of . (Tr. pp. 513-514). He testified that he reviewed ’s profile and determined that she has , fine and gross motor needs, and significant . (Tr. p. 519). He testified that for a student age, some
Hearing Officer’s Findings of Fact and Decision
20
could be supports for handwriting and other fine motor tasks such as adapted crayons and pencils, slant boards and raised line paper. (Tr. p. 521). He testified that for students age, it is to find to address . (Tr. p.
522). He testified that needs are typically addressed through and , but that additional software could help with acquisition. (Tr. p. 523). He described “”, one program which could benefit a student with , to give the student practice and reinforcement for auditory processing skill improvement. There are other programs which are similar. (Tr. p. 527). He testified that who work with students with more involved or would typically be familiar with . (Tr. p. 529).
Another is to provide information in a visual format. (Tr. p. 527). This could be done in a variety of ways, from low-tech to high-tech. (Tr. pp.527-528).
Request for Compensatory Services
In her closing statement, the parent requested compensatory services as follows:
50 hours of / ; 23 hours of ; 43.5
hours of , and services of 39.5 hours for the 2009-2010 school year and between 147.5 and 220 hours for the 2010-2011 school year. (IHO Ex.
IV).
On the final date of hearing, the Department of Education stated its position that is owed services as follows:
Hearing Officer’s Findings of Fact and Decision
________________________________________________________________________
21
For the 2009-2010 school year: 46 sessions of ; three sessions of , and 42 sessions of / .
For the 2010-2011 school year, through February 16, 2011: 38 sessions of ; 23 sessions of and 31 sessions of / .
The DOE states that is not owed services. (Tr. 2/27/11).
The DOE proposes to provide make up services either directly, through RSA’s, or through a contract agency. The parent requests an order that the parent is entitled to secure providers, at reasonable rates; or in the alternative, that if the parent is unable to secure RSA providers within one week, that, upon notice to the DOE, she may obtain another provider outside of the DOE’s RSA procedure. (IHO Ex. IV, p. 18).
Request for Compensatory Services
2009-2010 School Year
testified that received most of her services during the 2009-2010 school year. She did not testify to any specific gap in services during the 2009-2010 school year. (Tr. p. 576). Nevertheless, in her closing argument, she argues that is owed 39.5 hours of services for that time period, based upon the documentary evidence. (IHO Ex. III, p. 17; Par. Ex. O). Par. Ex. O, however, does not commence until November 16, 2009. There is no evidence of services provided to between September 2009 and November 16, 2009. Nor was there any testimony
Hearing Officer’s Findings of Fact and Decision
22
________________________________________________________________________ that was deprived of services during that two month time period. It should be noted that ’s mandate was three hours per week between September 2009 and November 9, 2009. (Par. Ex. H). On November 9, 2009, services were increased to 10 hours per week. (Par. Ex. B).
From November 16, 2009 through the end of the 2009-2010 school year, was consistently provided with services, ten hours per week, in accordance with her IEP (except during vacation periods). (Par. Ex. O).
2010-2011 School Year
is currently receiving services ten hours per week, as ordered by this hearing officer. (Tr. pp. 484-485). Based upon documents in evidence, services for the current school year commenced on October 4, 2010. (Par. Ex. R). This delay is consistent with the procedural history of this case, as my Pendency Order was not issued until September 14, 2010. The parent presented evidence of services provided in October and November 2010 only, for a total of 72.5 hours; and argues that in the absence of evidence that additional services were provided, should be awarded make up services “for all time periods that the DOE was unable to establish that services were provided”, even though there is no evidence that was deprived of services after October 4, 2010. IHO Ex. IV pp. 17-18).
Request for Compensatory
23
________________________________________________________________________
2009-2010 School Year
received three sessions of in September 2009, one in October 2009, one in November 2009. Services resumed on a weekly basis from December 2009 through February 2010. (Par. Ex. V; Tr. p. 574-575). Thereafter, the record indicates a gap in services between March and June 2010. The DOE maintains that was not entitled to receive services between April 10, 2010, when the CSE recommended termination of services, and the date when I ordered that she receive the service during the pendency of these proceedings.
2010-2011 School Year
No evidence was presented that any has been provided to during the current school year. testified that since the entry of the pendency order herein, has received no services. (Tr. p. 576).
Request for Compensatory Services
2009-2010 School Year
testified that during the 2009-2010 school year, there was a gap in ’s services, from October 2009 to February 24, 2010, due to a lack of availability of providers. (Tr. p. 573-574; Par. Ex. U).
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________________________________________________________________________
2010-2011 School Year
testified that since the entry of the pendency order herein, has received one or two sessions of . (Tr. p. 576).
Request for Compensatory /
2009-2010 School Year
During September and October 2009, received / three times per week, as mandated. In November 2009, she received only two sessions of . In December 2009, she was provided with only two sessions per week (for a total of six sessions). In January 2010, she was provided only six sessions for the month. In February 2010, she was provided only four sessions. In March 2010, she was provided with two sessions per week, for a total of eight sessions. (Par. Ex. S7). In April, she was provided a total of nine sessions (Id. at 8-9). In May 2010, received twelve sessions of , as mandated. (Id. at 10-11). In June 2010, she received ten sessions of . (Id. at 12-13).
2010-2011 School Year
In July and August 2010, received 18 sessions of , in accordance with existing mandates. (Id. at 14-15).
She initially received three times per week, as mandated, but was later told she could only receive services twice per week. (Tr. p. 482). This was due to the fact that
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________________________________________________________________________ an RSA was issued, in error, on October 13, 2010, stating that was only entitled to two sessions per week of services. (Par. Ex. P; Tr. p. 482).[5] The ( ), was also under the misconception that was not entitled to receive and services, even though this hearing officer had ordered that the services be provided, and RSA’s were issued for the services for the current school year.
(See Par. Ex. Q).
testified that school was unable to provide the recommended services, and that she has had locating on her own. One of the places which had availability was too for her to . (Tr. p. 483). She did not provide specific names of providers or any other details regarding her efforts to locate . Nor did she provide evidence regarding the rates at which she would be able to secure providers.
Findings of Fact, Conclusions of Law and Order
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. V. Rowley, 458 U.S. 176
[1982].
Hearing Officer’s Findings of Fact and Decision
26
________________________________________________________________________
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes goals and short-term objectives related to those needs and provides for the use of appropriate special education services. Application of a Child with a Disability, 02-014. For a procedural violation to be actionable, the hearing officer must find that it impeded the child’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision making process regarding the pro of FAPE or caused a deprivation of educational benefits. 20 U.S.C. Sec. 1415[f] [3] [E] [iii]; Application of a Child with a Disability, 06-134.
I find that the April 7, 2010 CSE was not properly composed, as it did not include a special education teacher or a special education provider, as required by Education Law Section 4401(1)(b)(1)(a). Ms. , , testified that had she attended the CSE meeting, she would not have agreed with the decision to recommend a classroom without support.[6] Ms. , ’s / provider was not contacted for her input until after the meeting.
Furthermore, I find that the CSE’s recommendation was inappropriate, as it was inconsistent with the specific recommendation of / provider. I find that these omissions resulted in a deprivation of educational benefits to , and that therefore the April 7, 2010 IEP is invalid.
Hearing Officer’s Findings of Fact and Decision
27
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Evaluations
A parent has the right to an Independent Educational Evaluation, at public expense, if the parent disagrees with an evaluation obtained by the school district. 8 NYCRR 200.5(g)(1). In addition, a parent may also be entitled to an independent evaluation, at public expense, where a school district has not conducted a timely multidisciplinary evaluation of the student. Application of a Child with a Disability, Appeal No. 05-041.
The State Review Officer has held that a recommendation to discontinue is a significant change in placement, warranting an evaluation. Application of the Board of Education of the Fayetteville-Manlius Central School District, Appeal No. 92-4.
/ Evaluation
, ’s / testified that she
believed that formal / testing of was last performed in 2008. No / evaluation was received in evidence or referenced in the April 7, 2010 IEP. According to Ms. , has weaknesses in vocabulary, word finding, recalling information, sequencing and syntax, She has difficulty understanding complex , and multistep directives. Despite the fact that Ms. recommended no change in ’s / services, the CSE recommended that services be
28
________________________________________________________________________ changed from three individual sessions per week to two group sessions. Ms.
recommended a full and evaluation to identify her strengths or weaknesses and formulate goals.
Ms. testified that she can perform comprehensive / evaluation of for $1,200. She testified that / testing performed by the DOE is less comprehensive than the testing she performs, and not always performed by a licensed / . This testimony was not contradicted by any DOE witness.
I find that the DOE should have performed updated / testing prior to the April 6, 2010 review. The decision to decrease ’s services, and to provide her with group rather than individual services was made without even consulting her , and was totally inconsistent with her specific needs. For the foregoing reasons, I find that the parent has established her entitlement to an independent
/ evaluation at DOE expense. Application of a Child with a Disability, Appeal
No. 05-041.
Evaluation
I find that the parent has demonstrated the need for a evaluation. ,
Although recommended a neuro-optholmological evaluation and
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, Mr. testified that no such evaluation was performed by the CSE. I will therefore order the CSE to arrange for a evaluation.[7]
Neuropsychological Evaluation
Mr. testified that at the time of the April 10, 2010 meeting, the December 2008/March 2009 neuropsychological evaluation was considered to be adequate. I agree that, as of April 2010, there was no need for the DOE to perform updated psychological or educational testing.
recommended a follow-up neuropsychological exam only if ’s symptoms worsen or do not improve. The record indicates that has made progress since her prior neuropsychological evaluation. Her attentional problems are well documented and not disputed by either party. Furthermore, testified that the and visual motor integration testing she would perform would most likely be performed as part of a / evaluation and evaluation.
According to Ms. , IQ and academic testing need to be updated. As two years have now passed since psychological and educational testing of has
30
been performed, I find that updated testing needs to be performed in both of those areas.
As the DOE has not yet performed such testing, I find that the parent has neither established the need for nor her entitlement to an independent evaluation. Therefore, I will order the CSE to perform updated and educational testing.
Evaluation
The CSE’s decision to terminate services was based upon March 25, 2010 report from her , stating that is currently demonstrating age appropriate fine motor and visual perceptual skills, although she still has a few letters reversals occasionally. The anticipated that all of her goals would be met by the end of the current school year, and did not recommend continuation of services.
Inasmuch as the CSE failed to conduct an evaluation prior to recommending a discontinuation in services, the parent is entitled to an independent evaluation at DOE expense. Application of the Board of Education of the Fayetteville-
Manlius Central School District, Appeal No. 92-4.
Evaluation
The CSE’s decision to terminate services was based upon a progress report from her stating that all goals had been met and that no longer needs . She wrote that presents with
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________________________________________________________________________ improved strength and balance and has age appropriate skills for gross motor activities and good coordination with object manipulation.
Inasmuch as the DOE failed to conduct a evaluation prior to recommending a discontinuation in services, the parent is entitled to an independent evaluation at DOE expense. Application of the Board of Education of the Fayetteville-
Manlius Central School District, Appeal No. 92-4.
Assistive Technology Evaluation 8 NYCRR 200.4(d)(v)(b)(6) provides that an IEP shall indicate “any assistive technology of services needed for the student to benefit from education”. Mr.
described some of the supports which might assist with handwriting and other fine motor tasks. There is nothing in the record, however, to indicate that fine motor skills are an area of weakness for . When tested in 2008/2009 her fine motor skills were within the average range. More recently, her reported that had age appropriate fine motor skills. Her teacher also reported that had met her fine motor and gross motor goals.
With respect to attention, which is an area of weakness for , Mr.
testified that for students ’s age, it is difficult to find to address .
He testified that needs are typically addressed through and , but that additional software could help with acquisition.
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________________________________________________________________________
There was no evidence presented by / , however, that needs assistive technology to address her needs or to benefit from her education.
Based upon the foregoing, I find that the parent has failed to demonstrate that an assistive technology evaluation needs to be performed at this time. Such an evaluation may be considered by the CSE, after the other evaluations are performed and reviewed.
Compensatory Services
State Review Officers have awarded compensatory services to students who remain eligible to attend school and have been denied appropriate services. Application of Student with a Disability, 09-044.
Services
2009-2010- I do not find that there was any gap in services during the 2009-2010 school year. The parent testified that received most of her services during the 2009-2010 school year. She did not testify to any gap in her service from September through November 2009. Neither party presented documentary evidence regarding services provided to between September 2009 and November 16, 2009. In the absence of testimony that deprived of services during that time period, I do not find that there is an evidentiary basis for the parent’s request for compensatory services for that time period. Documentary evidence establishes
33
________________________________________________________________________ that received her services consistently between November 16, 2009 and August 2010.
2010-2011- The record indicates that was without services from the start of school, on September 8, 2010 through October 1, 2010, a period of three weeks and two days. There was no testimony that there was any gap in services, after services were instituted on October 4, 2010. Taking into account school holidays, I find that that she is entitled to 30 hours of compensatory services
Services
2009-2010 school year- The parent testified that there was a gap in services from October 2009 through February 24, 2010, for approximately four months. The DOE’s offer to provide 46 make up sessions for the 2009-2010 school year adequately compensates for this gap.
2010-2011 school year - In July and August 2010, received 12 sessions of , as mandated. School commenced on September 8, 2010. (Tr. p.
59). From that time until February 16, 2011, 22 weeks have elapsed. Of that time, school was closed for at least two weeks, for Christmas, Thanksgiving and other school holidays. Thus, should have received 40 sessions of since the start of the 2010-2011 school year. Her testified that she received one or two
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sessions. The DOE’s position that she is entitled to 38 make up sessions for the current school year is thus consistent with the record.
________________________________________________________________________
Thus, is entitled to a total of 84 sessions (42 hours) of compensatory services.
2009-2010 school year- entitlement to services did not end on April 7, 2010, when the CSE recommended discontinuation of the service.
The parent’s request for an impartial hearing entitled to continuation of the service. Documents in evidence indicate that missed approximately 22 sessions
(11 hours) of during the 2009-2010 school year.
2010-2011 school year- The DOE has offered to provide 23 sessions of make-up services for the current school year, through February 16, 2011. I find that this adequately compensates for the weekly services to which she was entitled during the current school year. Thus, is entitled to a total of 45 sessions
(22.5 hours) of compensatory services.
/
2009-2010 school year- I have reviewed the records of missed sessions provided by the parent and find that the DOE’s offer to provide 42 sessions of compensatory services adequately compensates the parent for all missed sessions.
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2010-2011 school year- The record indicates that during the summer of 2010, received 18 sessions of / , as mandated. The record indicates that received no / in September 2009.
The
Hearing Officer’s Findings of Fact and Decision
________________________________________________________________________ parent testified that sometime after October 2010, services were wrongfully reduced from three sessions to two sessions per week. Her testified, however, that services were not reduced to twice per week until December 2010. The DOE’s offer to provide 31 sessions of compensatory services for the 2010-2011 school year adequately compensates for the missed sessions. Therefore, is entitled to a total of 73 sessions (36.5 hours) of compensatory /
.
Although the parent requests an order permitting her to hire providers outside the RSA procedure, she did not present specific evidence of her efforts to secure RSA providers. In addition, according to her own testimony, her inability to secure all of related services at the Perfect Playground, during the current school year, was the result of a misunderstanding regarding her entitlements, not a lack of . It is not clear why neither party was able to resolve this misunderstanding.
The DOE maintains that it can provide the compensatory services through its employees, contracts, or through RSA’s.
ORDER
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For all of the foregoing reasons, it is hereby ordered as follows:
1. The April 7, 2010 IEP is invalid. The CSE shall continue to provide services to , in accordance with her November 9, 2009 IEP at , until such time as it completes (or receives from the parent) the evaluations ordered herein, duly reconvenes, and recommends an appropriate program;
Hearing Officer’s Findings of Fact and Decision
________________________________________________________________________
2. The DOE shall conduct updated psychological and educational testing of by April 8, 2011. In addition, the DOE shall conduct a classroom observation of by April 8, 2011, and such other evaluations as may be required in order to consider the parent’s request that case be deferred to the CBST. If the CSE fails to conduct psychological or educational testing of by April 8, 2011, it shall issue an assessment authorization to the parent, authorizing her to obtain such testing independently.
3. The DOE shall obtain a evaluation for by April 8, 2011, and if it fails to do so, it shall issue an assessment authorization authorizing the parent to obtain an independent evaluation, at public expense;
4. The DOE shall authorize the parent to obtain a / evaluation to be performed by Ms. or another qualified / , at a cost not to exceed $1,200, to be funded by the DOE; provided however
37
that if the evaluation is not completed by April 8, 2011, the DOE shall perform a / evaluation of by May 6, 2011;
5. The DOE shall forthwith issue an assessment authorization, authorizing the parent to obtain an independent evaluation, at public
Hearing Officer’s Findings of Fact and Decision
________________________________________________________________________ expense, provided. however that if the evaluation is not completed by April 8, 2011, the DOE shall perform an evaluation of by
May 6, 2011;
6. The DOE shall forthwith issue an assessment authorization, authorizing the parent to obtain an independent evaluation, at public expense, provided, however, that if the evaluation is not completed by April 8, 2011, the DOE shall perform a evaluation of by
May 6, 2011;
7. The parent’s request for independent neuropsychological evaluation and an assistive technology evaluation is denied.
8. Within 15 days following the receipt of all of the foregoing evaluations, the CSE shall reconvene with a valid review team to recommend an appropriate program for the 2011-2012 school year. The CSE shall invite ’s and her / provider to participate in the review. CSE shall consider the parent’s request that ’s case be deferred to the
CBST.
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9. The DOE shall provide with compensatory services, as follows:
- 30 hours; - 73 sessions (or 36.5 hours) ;
84 sessions (42 hours); 45 sessions (22.5 hours). If the DOE is unable to initiate any of the foregoing services
Hearing Officer’s Findings of Fact and Decision
________________________________________________________________________ within 15 days of this order, it shall issue an RSA, (or such other form as may be required) effective through June 2013, authorizing the parent to secure the services of an approved provider at public expense.
Dated: February 22, 2011
Corrected Date: March 22, 2011 (Correction made to cover sheet)
____________________________________
DORA M. LASSINGER, ESQ.
Impartial Hearing Officer
DML: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 fficer 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
39
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.” (8 NYCRR 279.2[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.
Hearing Officer’s Findings of Fact and Decision
________________________________________________________________________
DOCUMENTATION ENTERED INTO THE RECORD September 7, 2010
PARENT
A IEP dated 4/7/10, 16 pages B IEP dated 11/9/09, 19 pages C Due Process Complaint, 6/21/10,4 pp. D Final Notice dated 6/8/10, 1 p.
IMPARTIAL HEARING OFFICER
I. School Profile, , April 2010, 3 pp. II School Profile, , April 2010, 3 pp
DOCUMENTATION ENTERED INTO THE RECORD November 16, 2010
PARENT
E Letter from Parent ,8/19/10, 1 page F DOE Continuum, undated, 28 pages G Pediatric Neuropsychological Examination, 3/31/09, 7 pages H IEP, 1/5/09, 16 pages
DEPARTMENT OF EDUCATION
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1 Amended Hearing Request, 6/21/10, 6 pages 2 Teacher Progress Report, 2/1/10, 3 pages 3 and Progress Report, 1/30/10, 6 pages 4 Progress Report, 2/23/10, 7 pages 5 Progress Report, 3/25/10, 7 pages 6 Psychoeducational Review, 3/11/10, 1 page 7 Classroom Observation, 3/11/10, 1 pg 8 Declination Letter for Parent Member, 4/7/10, 1 page
DOCUMENTATION ENTERED INTO THE RECORD December 7, 2010
PARENT
I Classroom Profile Email, 10/29/10, 2 pages
Hearing Officer’s Findings of Fact and Decision
________________________________________________________________________
DOCUMENTATION ENTERED INTO THE RECORD December 14, 2010
PARENT
J Notes dated 3/25 and 4/8, 1p. K Approval & Authorization of IEP Change dated 11/9/09, 1 page L Orientation Guide for 2010-2011, 8 pages M Parent's Memorandum dated 12/10/10, 8 pages
DOCUMENTATION ENTERED INTO THE RECORD January 19, 2011
PARENT
N Auditory processing evaluation dated 10/11/10, 6 pages
DOCUMENTATION ENTERED INTO THE RECORD January 21, 2011
PARENT
O Records from Perfect Playground
November 2009 to August 2010, 10 pp.
DOCUMENTATION ENTERED INTO THE RECORD January 26, 2011
41
PARENT
P RSA form, dated 10/13/10,2 pages Q , OT, and PT RSA forms, 3 pages R 2010-2011 service log 10/2010
To 11/2010, 3 pages S 2009-2010 service records, dated 9/09-8/10, 15 pages T 2010-2011 service records, dated 11/20/10, 1 page U 2009-2010 OT service records, 9/09-8/10, 8 pages V 2009-2010 PT service records, 9/09-8/10, 8 pages
Hearing Officer’s Findings of Fact and Decision
________________________________________________________________________
DOCUMENTATION ENTERED INTO THE RECORD February17,2011
DEPARTMENT OF EDUCATION
9 quarterly report, dated 3/10, 4 pages 10 quarterly report, dated 6/10, 3 pages 11 quarterly report, dated 8/10, 4 pages
IMPARTIAL HEARING OFFICER
III Case Follow-up Sheets, various dates, 4 pp.
DOCUMENTATION ENTERED INTO THE RECORD February 19, 2011
Impartial Hearing Officer
IV Parent’s Closing Statement, February 18, 2011, 28 pp.
Footnotes
[2] In a report dated January 30, 2010, , / , reported that she was making fair progress She recommended no change in services. (DOE Ex. 3). In a report dated February 23, 2010, her reported that all goals had been met and stated that no longer needs . She wrote that presents with improved strength and balance and has age appropriate skills for gross motor activities and good coordination with object manipulation. (DOE Ex. 4). In a report dated March 25, 2010, her occupational reported that is currently demonstrating age appropriate fine motor skill and visual perceptual skills, although she still has a few letters reversals occasionally. She anticipated that all of her goals would be met by the end of the current school year. She did not recommend continuation of occupational services. (DOE Ex. 5).Mr. conducted a classroom observation of on March 11, 2010, at her preschool class at for approximately forty minutes . He noted that she independently took and opened her cereal and sat quietly and talked to her seatmate. He noted that she appeared to be easily distracted. (Doe Ex. 7; Tr. p. 114). In a report dated March 15, 2010, reported some progress toward four of her goals, and significant progress toward 5 goals. She wrote that “it is imperative that continue to receive services to help address her delays both with attending and academics”. (DOE Ex. 9- 1). The reported significant progress toward meeting fine motor and gross motor goals. (Id. at 4).
[3] The parent did not specifically challenge the classification in her hearing request. ( DOE Ex. 1).
[5] Par. Ex. T indicates that no / was provided to in September 2010.
[6] The CSE attempted to reconvene with Ms. Johnson on April 22, 2010, however the canceled the meeting on the morning of April 22, due to a work conflict. Thereafter, no attempt was made to reconvene a valid review team.
[7] On the final hearing date, the parent’s attorney stated that she did not object to having the CSE arrange for the vision evaluation.