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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 3, 2011
October 26, 2011
November 2, 2011
Record Close Date: December 4, 2011
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 3, 2011
Attorney — Student
Attorney — Student
Parents
Special Ed Coordinator, (via telephone) — Student
SETSS Teacher, (via telephone) — Student
Interpreter — Student
District Representative — DOE
Special Ed Teacher, (via telephone) — DOE
CSE Social Worker, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 26, 2011
Attorney — Student
Attorney — Student
Parents
Special Ed Coordinator, (via telephone) — Student
SETSS Teacher, (via telephone) — Student
Interpreter — Student
District Representative — DOE
Special Ed Teacher, (via telephone) — DOE
CSE Social Worker, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 2, 2011
Attorney — Student
Attorney — Student
Parents
Parents
Interpreter — Student
(via telephone) — Student
Clinical Coordinator (via telephone) — Student
District Representative — DOE
INTRODUCTION
On August 3, 2011, an impartial hearing was commenced pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged failure of the Department of Education (“DOE”) to provide a Free Appropriate Public Education (“FAPE”) to . (“the child “) for the 2011-2012 school year. The initial hearing was for pendency and it was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 10:00 a.m. At the request of both parties, the hearing was continued on October 26, 2011 and November 2, 2011 and the requests for 30- day extensions made by both parties in September and October were granted based upon witness availability. (See case follow-up sheets attached hereto).
A list of exhibits that were admitted into evidence is attached to this decision.
BACKGROUND
On September 9, 2011 the parent filed a request for an impartial hearing alleging that the DOE failed to provide a FAPE for the 2011-2012 school year. In May 2011, the Committee on Special Education (“CSE”) discontinued Special Education Teacher Support Services (“SETSS”) and modified the related services as they appeared upon the June 23, 2010 Individualized education Program (“IEP”) following an IHO decision and order dated March 12, 2010. The parent states that the CSE made these changes: 1) without a properly constituted CSE; 2) considering evaluations and 3) without giving the parent a meaningful opportunity to participate at the meeting. (Parents’ Ex. A)
THE PARENT’S POSITION
The parents contend that the DOE denied the child a FAPE because the CSE made changes to the child’s IEP without a properly constituted CSE. They further contend that the CSE failed to consider evaluations and that the CSE denied that parent meaningful participation at the meeting. (Parents’ Ex. A) The parents agree that the child’s placement at the (“ ”) is appropriate but they want the DOE to restore the related services that were discontinued or modified to the way they appeared on the June 23, 2010 IEP.
THE DOE’S POSITION
The DOE contends that the child’s placement at provides the child with a FAPE and thus, the DOE contends that the child is not entitled to any further relief.
THE EVIDENCE PRESENTED
The child is a old student with significant . (Ex. B, C, I, J, K, L, M, N, P, Q, R, S, T, U, V, W, X, Y, Z, AA, BB, CC, II, KK, LL, 1; Tr. 45-48, 56, 141). He is severely , with , and he demonstrates many , including . Id. He relies upon , mostly (“ ”) and some . (Tr. 46, 58-59). He has , as well as , and experiences delays in (“ s”). Id. He is prone to placing , and has no . Id. The child also is a child and he has . Id. If demands are put on him or if he is , he . Id.
The child functions on a level. He is working on identifying numbers and letters, following directions and routines, and recognizing his picture and his name among other pictures and other names. (Tr. 46, 56). The child’s academic and progress has been very slow, and he requires a significant amount of support and individual instruction.
Over the course of the last seventeen months, the child has learned to identify the numbers . (Tr. 56-57). He is still working on the same goal of identifying the letters of his name as he did over the course of the 2010-2011 school year. (Tr. 57). He has approximately , which is the same number he was capable of using during the 20102011 school year. Id.
With regard to , the child can recognize items in and item. (Tr. 58-59). Over the course of , he has added to his . (Tr. 59).
Pursuant to an impartial hearing officer’s Findings of Fact and Decision dated March 12, 2010, the DOE was held to have failed to meet its burden to provide a FAPE for the child for the 2009-2010 school year for which he was not offered any school placement. (Parents’ Ex. B-9-10). Among other things, the IHO ordered that the DOE issue a Nickerson/P-1 letter to the parents to secure a placement for him in a New York State approved private school, and that the child should receive:10 hours per week of and related services at home or after school (in addition to the related services he receives at school) of , , 60 minutes each per week. (Parents’ Ex. B-12).
As a result of the issuance of the P1 letter, the child began attending in April
2010. (Tr. 166-67; Ex. X). He has been attending ever since, and for the 2010-2011 school year, the DOE continued to fund the same level of therapy and related services after-school. (Tr. 166-67). The CSE continued to recommend a 12- month program for the child at for the 2011-2012 school year, and the DOE agrees with the parent that continues to be an appropriate day placement. (Tr. 32, 167-68, 178; Parents’ Ex. A, C, G, 2).
The CSE convened on May 16, 2011 to develop a new IEP for the child for the 2011-2012 school year. (Parents’ Ex. C, 2). The IEP created at that meeting does not state that a school psychologist participated in the CSE meeting. (Parents’ Ex. C.2). The IEP staes that the child’s teacher and his related service providers from were present on the telephone during which they discussed the child’s progress reports. (Tr. 170). The CSE did not have copies of any evaluations for the child at the meeting. The CSE did not discuss or review any documents during the meeting other than progress reports (which were not translated in writing into for the parent although an English/ speaking person on the CSE attended the meeting and interpreted for the parent). (Tr. 6768, 82-86, 168-269, 172). There was some during the meeting according to the parent. (Tr. 169-71, 90-93; Parents’ Ex. G). The parent, through the person who interpreted for her, thought she confirmed during the meeting that the child’s after-school services would remain the same for the 2011-2012 school year. (Tr. 171). However, when she received the IEP developed as a result of the May 16, 2011 meeting, these services were not recommended. ( Parents’ Ex. C).
Ms. testified that she advised the parent to submit additional information with regard to the after-school program. When the parent informed the CSE team that the child’s after-school teacher and therapist were available to participate in the CSE meeting, she was informed that their participation was not necessary because the child’s services were going to remain the same. The child’s teacher at also informed the CSE that the after-school program and services should continue to avoid . (Tr.78,172; Parents’ Ex. G). The child’s May 16, 2011 IEP did not recommend the continuation of the after-school services. (Parent’s Ex.B).
Upon receipt of the IEP in June 2011, the parent notified the CSE that the recommendation differed from her understanding of what was agreed to during the meeting, and she advised the CSE of her objection to the termination of the after-school services. (Tr. 174; Parents’ Exs. C, G). She did not receive a response. (Tr. 175).
Ms. testified that the CSE did not consider placements other than and could not say whether continuation of the after-school services were discussed at the CSE meeting. (Tr. 85-86; Parents’ Exs. G; C- 20).
The child’s classroom teacher and / provider testified that the child is making and toward the acquisition and generalization of skills. The testimony of the afterschool provider was that she did not employ systematic graphing of the data collected during her discrete trials. The ’s supervisor testified that discrete trial and data collection must be graphed to measure progress. She testified that she had not spoken to the provider since September and assumed that she was using graphs. The supervisor also testified that providing this child with four days a week was not good enough. She stated that this child required the ten hours to be given over a five-day period. The provider did not come to the child’s home five days a week because her schedule did not permit it. She provided that child with services only four days a week. It did not seem as though her supervisor was aware of these deviations.
Nonetheless, the child’s classroom teacher at testified that the child benefitted from the he received at home and that she has seen progress due to the conjunction between school and home services. She opined that the home services should continue for this particular child if he is to continue to progress.
The parents filed an impartial hearing request and the child’s after-school services have continued to date under the pendency provisions of the law.
The rate that (“ ”) charges for for school-age children is $ /hour. (Tr. 100-04; Parents’ Ex. E).
CONCLUSIONS OF LAW
Under the IDEA, a child with a disability is entitled to a free appropriate public education. 20 U.S.C. § 1400(d)(1)(A). A FAPE includes special education and related services specially designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written IEP. 20 U.S.C. §1401(8).
A FAPE “begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, [and] provision for the use of appropriate special education services to address the child’s special education needs . . .” [Application of a Child with a Disability, Appeal No. 99-17] In determining whether an IEP is appropriate, the court must consider “whether the School Board complied with the procedural requirements of the IDEA, and . . . whether the IEP. was reasonably calculated to confer educational benefits.” M.S. ex rel. S.S. v. Board of Educ. of the City School Dist. of the City of Yonkers, 231 F. 3d 96, 102-103 (2d Cir. 2000) (quoting Board of Educ. v. Rowley, 458 U.S. 176, 206-207). The DOE has the burden of proof regarding both of these issues which it did not meet.
Procedural inadequacies that result in the loss or denial of educational opportunity, impede a child’s right to a FAPE, or seriously infringe the parents' opportunity to participate in the individualized educational program formulation process, constitute in the denial of a FAPE. 20 U.S.C. 1415(f)(3)(E)(ii); Werner v. Clarkstown Cent. Sch. Dist., 363 F.Supp.2d 656, 659 (S.D.N.Y. 2005) (citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 (6th Cir. 2001).
The parent correctly argues that unless it obtains a signed waiver from the parent, a CSE team is required to include a “school psychologist.” 8 N.Y.C.R.R. § 200.3(a)(1)(i)(iv), (f). A school psychologist “contributes to an understanding of the individual evaluations conducted on the student, assists to identify the positive behavioral intervention supports and strategies needed by the student, assists to plan school programs to meet the student’s needs and to identify, plan, and manage any psychological services the student might need.” New York State Education Department, Guide to Quality Individualized Education Program (IEP) Development and Implementation, February 2010 (Revised December 2010). Here, the CSE review team was improperly constituted because it did not include a school psychologist. The fact that it did not discuss the child’s evaluations does not justify the absence of the school psychologist because as discussed below, the CSE was required to consider the evaluations.
Furthermore, under 20 U.S.C. § 1414 (d)(1)(B), the required members of the IEP team must attend the entire meeting unless the parent and local education agency agree that the attendance is unnecessary and the parent consents to their being excused in writing. Unless all required members are present for the full meeting, they cannot be said to be participating on a meaningful level. [Application of a Child with a Disability, Appeal No. 01-044 (holding that the failure of a child’s special education teacher to participate in the entirety of a CSE meeting contributed to a finding that the CSE was not validly constituted)]. This is true even where the individuals are participating by telephone. [Application of a Child with a Disability, Appeal No. 00-043]. The child’s teacher and his related service providers from HASC were not present on the telephone for the entire meeting. (Tr. 170). Consequently, the DOE has not demonstrated that the CSE meeting was properly constituted.
While these violations alone may not deny a child a FAPE, the DOE also failed to meet other procedural requirements which had a substantive impact on the outcome of the meeting. And those failures did deny the child a FAPE.
For example, the CSE did not consider evaluative and documentary information to justify the changes made in the recommendations and goals which the CSE included on the IEP. Both the U.S. Code of Federal Regulations and the New York State Regulations require that in performing the annual review of an IEP or in developing an IEP, the team must consider a student’s initial or most recent evaluations, his strengths, and his academic, developmental, and functional needs, in addition to parental concerns for the enhancement of their child’s education. 34 C.F.R. § 300.324; 8 N.Y.C.R.R. § 200.4(f)(1). As part of any reevaluation, the IEP team “must review existing evaluation data, [and] current… assessments.” § 300.305. Even of the CSE believed that the child was not able to be formally evaluated because of his severe delays, the DOE presented no evidence to support this.
The fact that the CSE may have reviewed the child’s progress reports is insufficient. The regulations do not include teacher progress reports as accepted documentation or suggest that they may be used in lieu of evaluation data and assessments in the determination of current functional levels. (See § 300, Appendix A). Especially, where as here significant changes were made on the child’s IEP, it was required that the CSE consider appropriate evaluations, perform a new one or explain why this was not done. A CSE’s failure to perform an adequate evaluation prior to recommending a significant change in placement may constitute a basis for annulling the recommendation. [Application of a Child with a Disability, Appeal No. 93-15; Application of a Child with a Disability, Appeal No. 96-22; Application of a Child with a Disability, Appeal No.99-72]. In this case, new evaluations may not have shown any new developments however, the old evaluations should have been considered by the team and an explanation should have been given before they discontinued his services.
The CSE discontinued a significant amount of after-school services for the 20112012 school year without any discussion as to whether the child’s needs had substantially lessened. Even the child’s special education teacher at , , who was called as a DOE witness, testified that the child needs a combination of at . (Tr. 68-69, 171). She testified that he benefited from the services that he received during the 2010-2011 school year, and that these services in combination with were necessary for him to have progressed. (Tr. 68). Although she does not recommend after-school services for all of her students, Ms. believes that these services are very important for this child. (Tr. 68-69). The May, June, September, and December 2010, as well as the August and October 2011, progress reports from the child’s after-school providers also recommend that he continue the after-school services. (Ex. M, R, S, Z, KK, LL). The DOE presented no evidence to contradict the recommendations of these specialists.
In addition, the CSE did not offer the parent a meaningful opportunity to participate in the decision-making process because the DOE failed to ensure that the parent was provided with as accurate interpretation of the proceedings and discussions therein. The IDEA requires that a parent be meaningfully involved in the development of their child’s IEP. See Sch. For Language and Comm’n Dev.v. New York State Dep’t of Educ., 2006 WL 2792754 (E.D.N.Y. Sept. 26, 2006). Moreover, the DOE did not provide any evidence to contradict the parent’s testimony that she was told at the CSE meeting that the after-school services would continue. The DOE also failed to present any evidence to contradict the parent’s testimony that she was further told that there was no need for her to have the child’s after-school providers participate in the CSE meeting. Had the after-school providers been invited to participate, the CSE might have reached a different conclusion about whether or not the child required after-school services to continue. The absence of these providers’ input at the meeting seriously impeded the CSE’s ability to accurately assess the child’s needs and to develop a valid IEP that would allow the child to make academic and social progress and avoid regression thus, FAPE was denied.
In this case, there is no dispute that the child is attending an appropriate full day program. The issue here is whether despite the fact that the DOE is providing the child with such a program are they nonetheless, required to provide additional services to the child for him to receive a FAPE.
The DOE argues that the IDEA does not require a school district to provide the generalization of skills across settings and that it should not be required to provide afterschool services if the day program it recommended is appropriate. However, this child requires not only to skills, but also school, achieve his IEP goals, learn new skills, control and , and . (Parents’ Exs. M, R, S, Z, KK, LL; Tr.120-22, 128-131, 135-36, 140-41, 144, 152-52, 177-78, 185, 202-04, 207).
Where as here, the DOE’s own witness as well as the witnesses who testified for the parents stated that the child should continue to attend as well as continue to receive his services, the DOE’s contention is incorrect. See, D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 348 F.Supp.2d 92, 95-96 (S.D.N.Y. 2004),vacated and remanded on a separate issue, 430 F.3d 595 (2d Cir. 2005). (where the court found that a severely autistic child who was placed in a non-public school day program at public expense was denied a FAPE due to school district's failure to include one-on-one home instruction in his IEP). Courts have further held that “[t]he IDEIA and regulations specifically allow for supplemental services as part of special education.” Student X v. New York City Dep’t of Educ., No. 07-CV-2316, at 17 n.9 (E.D.N.Y. Oct. 30 2008) (citing 34 C.F.R. § 300.39(a) (defining “special education” under the IDEIA as “specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including (i) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings ....”)); see also New Milford Bd. of Educ. v. C.R. ex rel. T.R., No. 09-328, 2010 WL 2571343, at *6 (D.N.J. June 22,
2010) (finding that the complimentary nature of a home program was required for autistic student to receive the meaningful educational benefit mandated by the IDEA, and holding that an IEP failing to mandate a substantial home program for the student was a denial of a FAPE under the IDEA); C.B. ex rel W.B. v. New York City Dep't of Educ., No. 02 CV 4620, 2005 LEXIS 15215, at *73-89 (E.D.N.Y. June 10, 2005)( where the court found a home-based program consisting of a minimum of nine hours per week of ABA services, in conjunction with a private day school program, to be appropriate for an autistic student and used its equitable authority to order "appropriate relief" under the IDEA, requiring the DOE to fund both the private day school and the after-school ABA services. Id. at *84).
However, it is clear from the testimony, that although the DOE denied the child a FAPE and the child is entitled to after-school services as reflected on the June 23, 2010 IEP the current provider is not and should not be permitted to continue in that fashion. While the child is not to be penalized for the provider’s failures, the provider should be. Thus, the DOE need not pay for future services provided to the child by without proof that those services are being delivered to the child five days a week, two hours a day and that the data is being properly graphed and monitored. If continues to provide the child with , it will only be permitted to charge the DOE $88.00 per hour for the next four months so that the DOE can recoup at least twenty per cent of the amount it paid to them since September 2011 to the present—the time period during which supervisor should have known, if she had checked, that the therapist was failing to[1] follow appropriate procedures. The parent may choose to obtain services ten hours a week for two hours a day for the child from another provider if cannot meet the child’s needs in which case, in which case the rate shall be paid at $ per hour.
ORDERED that:
1) the DOE must restore and pay for the related services that appeared on the child’s
June 23, 2010 IEP in addition to the related services the child receives at as follows: 1) 10 hours of SETTS per week at home for two hours a day; 2) and therapy for 60 minutes once a week at home ) for 60 minutes a week at home ) for 60 minutes at home 1:1;
2) commencing on the date the DOE receives this decision, the DOE shall pay no more than $ per hour for the services provided by for the next four months and shall be required to do so only if can show that it has provided the child with therapy five days a week and has ensured that the has graphed the data he/she has collected;
3) if the parents decides to use another provider, the DOE will pay at rate not to exceed $ per hour commencing whenever the new provider submits it invoice. Dated: December 12, 2011
_________________________________
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 3, 2011
PARENT
A Hearing Request 6/29/11, 4 pages B Finding of Fact 3/12/10, 16 pages C IEP 5/16/11 27 pages D FNR 5/16/11 1 page E Affidavit 8/3/11, 1 page F Due Process Response 7/14/11, 3 pages G Letter 6/14/11, 2 pages H RSA-2 Form Undated, 3 pages I Progress Report 3/18/11, 4 pages J Annual Review 3/1/11, 2 pages K Annual Review 2/9/11, 3 pages L Progress Report 12/27/10, 3 pages M Progress Report 12/15/10, 7 pages N 12/10/10, 4 pages O Letter to CSE 9/14/11, 1 page P 9/29/10, 4 pages Q 9/29/10, 4 pages R Related Service Progress Report Various dates, 2 pages S Addendum 9/1/10, 2 pages T Progress Report 8/13/10, 1 page U Progress Note 6/11/10, 3 pages V Progress Report 5/27/10, 1 page W Addendum to Progress Note 6/7/10, 1 page X Ed. Progress Note 5/26/10, 1 page Y Progress Report 5/24/10, 1 page Z Ed. Progress Report 5/15/10, 3 pages AA Summary 5/13/10, 1 page BB Evaluation 8/11/08, 6 pages CC Transportation Letter 7/22/10, 1 page DD Auth. To Release Health Info. Undated, 1 page EE Request for Accommodation 5/20/11, 1 page FF Request for Accommodation 6/16/09, 1 page GG Prescription for Travel Acc. 6/13/09, 1 page HH Medical Record 4/7/10,[2] pages II Letter 4/14/09, 1 page JJ Letter 4/1/09,[1] page
DEPARTMENT OF EDUCATION
Footnotes
[1] Should choose to unilaterally discontinue to provide services to this child, the DOE is of course free to do a more through audit of the services which the agency has provided to see if they have failed to follow proper procedures for this child in the past.
[1] IEP 5/16/11, 21 pages
[2] Meeting Minutes 5/16/11, 1 page DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 2, 2011 PARENT KK Placement Progress Report 8/15/11, 2 pages LL Bilingual Addendum 10/24/11, 3 pages DEPARTMENT OF EDUCATION None