NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student‘s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: August 9, 2010
September 7, 2010
October 7, 2010
October 13, 2010
October 21, 2010
October 25, 2010
October 27, 2010
November 12, 2010
November 22, 2010
December 7, 2010
January 19, 2011
January 21, 2011
January 24, 2011
February 14, 2011
Hearing Officer: . Hearing Officer‘s
NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 9, 2010
Student
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 7, 2010
Student
Student
Student
-, at (Via Telephone) — Student
from (Via Telephone) — Student
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 7, 2010
Student
Parents
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 13, 2010
Student
Student
Student
Parents
Student
DOE
School (Via telephone) — DOE
Hearing Officer‘s — DOE
School — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 21, 2010
Student
Student
DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 25, 2010
Student
Parents
Student
Student
for the — DOE
(Via telephone) — DOE
DOE
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 27, 2010
Student
Student
Parents
, DOE
, and (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 12, 2010
Student
Hearing Officer‘s — Student
Parents
( ) — Student
, DOE
, (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 22, 2010
Student
Parents
(Via Telephone) — Student
(Via Telephone) — Student
District of (\Via Telephone) — Student
, DOE
, , (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 7, 2010
Student
Student
Parents
of (Via Telephone) — Student
-, (Via Telephone) — Student
, DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 19, 2011
Student
Student
Witness — Student
Parents
Hearing Officer‘s — Student
Witness (Via Telephone) — Student
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 21, 2011
Student
Parents
and — Student
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 24, 2011
Student
Parents
DOE
of, (Via Telephone — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 14, 2011
Student
Parents
(Via Telephone) — Student
of, (Via Telephone) — Student
Student
DOE
Hearing Officer‘s — DOE
On July 1, 2010, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (―IDEA‖), 20 U.S.C. §1415(f), in the matter of . The parents requested the hearing (1) to challenge the alleged failure of the Committee on Special Education for District (the ―CSE‖) to provide with a free appropriate public education for the 2010-2011 school year and (2) to seek reimbursement for tuition at the (― ‖), - - school, and . The parent filed an amended hearing request on August 2. A pendency hearing was conducted on August 8 and September 7, and an Order on Pendency was issued.[1]
The hearing on the merits commenced on October 7 and was continued on October 13, October 21, October 25, October 27, November 12, November 22, December 7, 2010 and January 19, January 21, January 24 and February 14, 2011. Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.
At the conclusion of the hearing, the parties waived oral closing statements and agreed to submit memoranda of law. The parties were granted permission to expand the page limit of the briefs to 40 pages in light of the extensive testimony, voluminous exhibits and complexity of the (trans. 2230).
The compliance date for the submission of this written decision was extended to October 17, November 16, December 16, January 15 and February 14 in order to permit the extensive testimony from numerous witnesses that both parties wished to present in this proceeding. The parties requested leave to submit their memoranda of law on March 15, and the compliance date was extended to March 16. The parent requested a one week extension of this date, and the Department consented to the extension. The parent requested an additional one week extension of time to file her memorandum; this request was granted. The Department of Education subsequently requested a three day extension of time to April 1; this request was also granted. The record closed on April 1 upon the receipt by the hearing officer of the parties‘ memoranda of law. The final extension of the compliance date was to April 16 in order to permit the parties to file their memoranda
Hearing Officer‘s and for the hearing officer to consider those memoranda in the preparation of this written decision. The Amended Hearing Request
In her amended hearing request, the parent sought an order requiring the Department of Education to reimburse her for tuition at , up to 20 hours per week of -school services, up to three hours per month of parent training, five 60 minute sessions per week of and , two 45 minute sessions per week of and two 45 minute sessions per week of (Parent‘s Ex. D at p. 10).[2]
Background
has been diagnosed with and experiences significant . She and and and others. is classified, for the purposes of the IDEA, as . This classification is not in dispute. has attended since September 2008.
attended a program through an IEP created by the Department‘s Committee on Education. Due to profile, it was impossible to educate in a group setting. As a result, the parent created and implemented a and based special educational program for . Finally, in September 2008, was transitioned into a school at supported by services in the and the .[3] The School District‘s Case The parents had evaluated at the Study in 2004, May 2007 and August 2008 (Department Ex. 11). Throughout the 2008 assessment,
Hearing Officer‘s needed constant reinforcement and prompting in order to maintain attention to testing tasks. As her decreased, she and attempted to take preferred items from the , and the had . On the Scales of , was functioning at approximately the and - year level in skills, receptive , expressive and fine motor planning and skills. On the CELF -2, performed below the level of years of age. ―Given repetition, modeling, prompts, and wait time, [was] capable of responding to yes/no and whatquestions and she accurately respond[d] to contextual one-step directions‖ (Department Ex. 11 at p. 12). The evaluation notes that ―required significant external supports, provided by consistent, familiar in order to produce context-relevant spoken ‖ (Department Ex. 11 at p. 8). On the Vineland, scored below the percentile.
The evaluation concluded that was functioning at approximately the level of a and - year old and had made ―some gains‖ in receptive , adaptive skills and conceptual development since her 2004 evaluation. ―overall presentation continu[ed] to be consistent with , as well as significant cognitive delays‖ (Department Ex. 11 at p. 13). The recommended that ―receive and that the majority of her program be delivered by certified trained in both and ‖ and that ― , , and communication , and adaptive skills training be built directly into her program‖ (Department Ex. 11 at p. 13).
In January 2010, was observed at by CSE personnel (Department Ex. 7). worked on with an and ― , each time she was and by the .‖ constant to , redirection and prompted from the throughout the observation. The observer noted that ― manifestations were characterized by intermittent , and on the . No appropriate expressive was observed.‖ performed a functional (― ‖) of in September 2009 (Parent‘s Ex. H). According to the , the following : including - and ; towards and other students including , , , , , , and over . also by and up
Hearing Officer‘s and down (Parent‘s Ex. H at p. 1). had implemented a variety of strategies to address these , including positive rewards, verbal praise, verbal reminders, redirection, techniques, increases in ―learn units,‖ increased choice opportunities and functional communication training. The document sets forth a detailed to address these (Parent‘s Ex. H at pp. 6-9).
( -school ) prepared a progress report in May 2010 (Department Ex. 12). The report details interfering and maladaptive : , , /screeching and ― ‖ words and phrases (Department Ex. 12 at p. 1). has improved her ability to attend to tasks and follow directions and increased her interest in learning to read and write. She has also increased her desire to play with . She has developed more expressive with the use of prompts and cues. was also developing skills and basic travel skills. Her s opined that needed to continue her current levels of in order to avoid .
, a certified school employed by the Department of Education, testified that she was assigned to the ―CSE in where she managed cases of students at two sites in and of education students at schools in (trans. 213). Ms. conducted a evaluation of in April 2010 (trans. 220; Department Ex. 9). needed ―some soothing form her ‖ to start the evaluation (trans. 221, 233). remained with her during the evaluation, which ―helped her participate in the assessment‖ (trans. 222). was given breaks when she indicated by , the testing materials or saying ―all done‖ that she did not wish to continue the evaluation. During Ms. evaluation, ―was only able to respond to test items if she was provided with continual reinforcement. She was motivated by looking at pictures in her book. The test was completed with these intermittent reinforcements, short breaks and activity‖ (Department Ex. 9 at p. 2; see also trans. 234-235).
On the Stanford-Binet Intelligence Scales, 5th edition, attained a full scale I.Q. score of Her age equivalence in the area was years, . In the area, her performance was at the years, age equivalence. On the Woodcock son
Hearing Officer‘s
Tests of Achievement-III, scored at the level in letter word identification and at the below level in reading, passage comprehension, applied problems and picture vocabulary.
On the , scored in the ― range‖ in all measures—social awareness, social cognition, social communication, social motivation and mannerisms (Department Ex. 9 at p. 7). On the Vineland Adaptive al Scales, scored in the range in all areas, with all her ratings falling below the percentile. Her lowest age equivalence scores included in receptive , in personal daily living skills and in play and leisure time skills (trans. 227).
The CSE convened on May 26, 2010, to create an IEP for for the 20102011 school year (Department Ex. 1). This meeting was attended by (as district representative), Ms. , the parent, (a DOE educator), a parent member, a representative of , ( from District , ( ‘s at ), (an from ), (a from ) and from (Department Ex. 1 at p. 2; trans. 238).
The IEP notes that is functioning at a level in letter word identification and below level in passage comprehension and math. The IEP also reports that speaks in phrases or sentences of no more than three words and has repeating phrases longer than three words. At the meeting, classroom reported that could identify letters and provide some of their phonetic sounds but that she required ―frequent prompts and redirection back to task to attend to and scan words and pictures on a page‖ (Department Ex. 1 at p. 5). In math, was working on identifying numbers and counting one or three objects but ―she counts everything as two‖ (id).
The IEP states that ― with instruction and requires additional support‖ and ―will be addressed programmatically, with a to and the attached ‖ (Department Ex. 1 at p. 9). The identifies the following that ― with learning:‖ ― ; of and ‖ and ― to ; will the temples of her using the of her palm‖ (Department Ex. 1 at p. 30). The following strategies were to be used to reduce these : redirection and refocusing Hearing Officer‘s by the , ―choose strategies of preferred activities,‖ ―premack principles of ‗first then,‘‖ teaching alternate methods of attention getting and ―teaching to wait for access.‖
The IEP includes goals in the areas of , communication, readiness skills, matching, fine and gross motor skills, play skills, social skills, reading, writing, math, skills of daily living, and perceptual skills. Progress is to be measured by ―lea[r]n units.‖
Ms. attended May 26 CSE meeting in the capacity of a school and as the individual qualified to interpret evaluation results (trans. 236-237). According to Ms. , the meeting lasted about three hours (trans. 239). The ―team‖ recommended that be classified with and attend a class with a ― ‖ and related services (trans. 239-240). The parent and personnel disagreed with this recommendation (trans. 307). At the meeting, Ms. ―went over‖ her report. The ―bulk of the meeting‖ was spent ―going over the goals on the IEP‖ (trans. 240). Personnel from reported that engaged in self- and ―which prevent her from learning in the classroom‖ and had ―adaptive deficits‖ (trans. 241; see also trans. 292). The ―team‖ recommended the one-to-one because ―would need the support of someone working with her one-to-one within the classroom, and especially to address some of the and ‖ (trans. 242). The ―team‖ did not recommend a specific educational methodology for because ―methodologies are not specifically recommended‖ and personnel in programs use a variety of methodologies (trans. 244). The ―team‖ also rejected the parent‘s and personnel‘s request to consider ―a one-to-one ratio‖ because ―it was felt that this was not an appropriate education for ‖ and ―we believed that the [6:1:1] program recommendation for was appropriate‖ (Department Ex. 1 at p. 8; trans. 288-289, 291). Ms. noted that personnel ―did spend quite a bit of time‖ at the meeting ―talking about [ ] and and . . . that she needed one-to-one instruction;‖ Ms. contended that would receive oneto-one instruction in the program (trans. 292).
, a certified employed by the Department of Education, testified that his duties included performing evaluations and observations and conducting IEP meetings (trans. 331). Mr. described his 28 years of experience in the field of education, and in Hearing Officer‘s particular, his experience with evaluating and working with individuals with (trans. 331-338). Mr. attended the May 26 IEP meeting and ― ‖ the meeting as the district representative (trans. 339).
Prior to the CSE meeting, Mr. met with Ms. , Ms. and (another Department employee) to discuss and ―preview[ed]‖ the documents which would be available at the CSE meeting (trans. 342-343). This ―premeeting‖ was held on the morning of May 26, prior of the CSE meeting (trans. 465-466). In addition, Mr. had discussed the information about prior to May 26 with these individuals by telephone (trans. 466). Mr. testified that he did not formulate conclusions about recommendations for prior to the CSE meeting (trans. 467468).
Mr. stated that the CSE used the conducted by (Department Ex. 2) to prepare (trans. 346-347). According to Mr. , the classroom observation, Ms. evaluation and the evaluation obtained by the parent at revealed a child with , delays, atypical functioning, some basic academic skills, and al challenges (trans. 349-351). Mr. explained that the CSE utilized progress and reports and reports in developing the present levels of performance in the IEP (trans. 355-357). The progress reports revealed to Mr. that was functioning on a to year-old level, engaged in such as and in towards her , was able to express her wants in short sentences (three words), and was beginning to label objects in her environment (trans. 358-360).
Mr. stated that the CSE addressed social/emotional and al needs with IEP goals for attending and focusing and development of play and group participation skills, with the plan, and with the management to prompt and her and ―to before there was a ‖ (trans. 365366; see also 377-378). The goals in the IEP ―were submitted . . . in advance of the meeting‖ by (trans. 366). The CSE modified some of these goals ―at the request of‖ meeting attendees and added goals ―at the request of ‖ (trans. 367).
Hearing Officer‘s
Mr. reported that the parent and stated that needed a one-to-one program such as and requested -based services in addition to a school program (trans. 380, 398; Department Ex. 4). The ―team‖ rejected a - school for because the Department of Education ―ha[d] a program‖ that was ―tailor-made for [ ] type of profile‖ (trans. 381). Mr. noted that the CSE had a report indicating that she‘s made significant progress in
[independence], so that would be one strong indicator that a high[ly] setting would not be warranted from this point further. But I felt that that was resonated throughout the progress reports, including, ironically enough, those submitted by the people, that this child was really calling out for a less classroom setting . . . .‖ (trans. 477).
The ―team‖ also rejected –based services because ―we felt the goals such as had been agreed upon . . . could be addressed‖ in the recommended program with related services and the ―parent component‖ of a program (trans. 381-382; see also trans. 409410). Mr. described the ―parent component‖ as ―carryover‖ of the instruction conducted during the school day by explaining to the parent ―what works and what doesn‘t and what goals they‘re working on‖ so ―that the can implement similar things within the ‖ and ―there is carryover from what‘s done in school to what‘s done at ‖ (trans. 410-411). Mr. did not explain how or by whom this instruction would be delivered to the parent but asserted that it was delivered in the program and acknowledged that the ―parent component‖ was not described in IEP (trans. 422).
Mr. described a ―learn unit‖ 4 as the cuing, and recording of a (trans. 437-439, 492).
Mr. stated that, after the conclusion of the CSE meeting, the CSE provided the IEP and ―made the full folders accessible‖ to the clerical person in the placement office, who ―enters the identifying information‖ into ―the computer system‖ (trans. 450-452). Then, someone at District would make a student/placement ―match‖ based upon program, needs and appropriate functional grouping (trans. 452).
The IEP refers to ―lean units‖ throughout the numerous goals. The document should state ―learn units.‖ Hearing Officer‘s , a certified and licensed of and hearing handicapped employed by the Department of Education, outlined her work as a working with students with , as a of , and in how to work with students with and as the of the Department‘s Office of (trans. 504-508). At the time of her testimony, Ms. was the ― ‖ for the network, where she was responsible for overseeing the of schools (trans. 509). She has worked with both the and methodologies (trans. 518-519).
Ms. attended May 26 CSE meeting (trans. 521). At the meeting, there were discussions about - , difficulties with transitioning, and social skills and deficits (trans. 530). The IEP goals were also discussed, with personnel describing what they were working on with and the parent ―sharing some areas that she felt needed to work on‖ (trans. 532). Ms. described how various goals would address (trans. 535-540).
Ms. testified that the ―team‖ recommended a ―
Hearing Officer‘s
‖ for because personnel ―stated that would need someone working with her one-on-one. Because of her learning style, they felt that she needed someone to be there with her and that she would not be able to function or be able to learn unless she had an there with her‖ (trans. 543-544). The ―team‖ ―did feel that needed one-to-one teaching, meaning that she needed skills broken down in one-to-one teaching. But that she did not have to have a full-time to use that method of one-to-one teaching‖ (trans. 668). The model with the one-to-one would have been sufficient to meet this need, and did not require a one-to-one full-time as requested by personnel and the parent (trans. 667).
According to Ms. , the plan included in the IEP was developed with and the parent describing the exhibited in school and at , including ―some ‖ (trans. 546). personnel discussed the strategies they currently used with (trans. 546, 693-694). At the hearing, Ms. described the training District provided to and with respect to strategies to address (trans. 547, 727). Ms. also described how the would implement the with in the classroom to avoid self-abusive (trans. 684-688).
Ms. reported that at the CSE meeting, the parent requested that services at (trans. 549, 597). The ―team‖ did not recommend such services because it ―felt‖ that , social and communication needs could be met in a school setting (trans. 671). In addition, needed to address her ―social deficit areas‖ in a school setting and to learn through peer modeling and ―just being around other students‖ (trans. 550-551). In addition, the CSE members discussed with the parent how the parent training within the program would provide ―support‖ to the parent (trans. 609).
The parent also requested that she be included in the placement process (trans. 613). The parent was informed that the purpose of the May 26 meeting was to ―come up with an appropriate program for ‖ (trans. 613).
Ms. opined that the recommended program was ―a very model‖ for students such as with ― needs‖ and would address her needs and Hearing Officer‘s
(trans. 568-570). In particular, would have a with her at all times in addition to the classroom and the . According to Ms. , this program was appropriate for (trans. 570).
In a notice dated June 10, the CSE informed the parent that was offered a placement at (Parent‘s Ex. N). , the of , testified that is a ―District school with five ―sites‖ for education students (trans. 736). was to be placed at the ―main site‖ at the School, which includes , 8:1:1 and 12:1:1 classes (trans. 737-738). There are two classes each with one and two (trans. 738). in these classes operate ―based on the child‘s needs, whether it‘s , some of the have more . Some have depending on what the child needs‖ (trans. 738). Ms. was familiar with only through reviewing her May
26 IEP (trans. 738-739).
There are approximately students (all education students) at / . About these students are classified with (trans. 778). Approximately students attend the School during the summer months (trans. 826).
If had attended , she would have been enrolled in Ms. class as of July 1 (trans. 739). All the children in the class were ―on the [ ] ‖ (trans. 783). Ms. opined that ―would into‖ this class (trans. 789). There were other in the class - and , and all the students had plans (trans. 789-790). There were no in this class (trans. 833). would have been moved to Ms. class in September because ―would have been more functionally grouped‖ in Ms. class (trans. 858). There were no in Ms. class (trans. 834).
Each classroom is set up in ― and groups,‖ with the responsible for the day-to-day operation of the classroom—formulating individual lesson plans and ―breaking down‖ the responsibilities for the day (trans. 742). Both and attend trainings. All would have been trained on implementing the type of plan included in ‘s IEP, and Ms. described how the would address - and : remove her from the classroom, try to stop the Hearing Officer‘s , redirect her, give her a ―time out‖ or ―walk[] her around‖ (trans. 793-795). There is nothing on that includes use of a ―time out‖ (trans. 796).
has a school-wide approach called ― ‖—―children buying into the day to day of kindness and responsibility‖— which is modified for the program, and a school-wide ―emotional literacy‖ program (trans. 842-843, 861).
Ms. stated that parent training is offered at on a monthly basis (trans. 743). The organizes talks on subjects of interest to parents, such as the or , , , and (trans. 751, 753). also communicate with parents individually and have gone to a child‘s ―to help parents‖ (trans. 753-754). School personnel engage in ongoing communication with parents. Parents can contact Ms. , the , or for assistance, and parents can receive ―case management at ‖ if ―needed‖ (trans. 835). Parents can also come into the school for a ―one-to-one‖ workshop (trans. 835-836).
The school day starts with instructional breakfast in a cafeteria set up just for ―alternate assessment children‖ with facilities for the children to work on communication skills and activities of daily living, such as setting up for a meal, washing and cleaning up (trans. 744-745). Lunch is conducting in a similar manner. During the school day, Ms. ‘s class participated in wood shop, science lab, social studies, computer lab, art, and adaptive education. The class also participated in trips, especially in the summer, including swimming, the local library and stores (trans. 747750, 758-759). In adaptive education, students worked on sports activities in small groups and went to (trans. 750). There are eight periods in the school day; would have been in Ms. classroom for ―probably‖ four periods per day (trans. 806). She would move to other rooms for the remaining four periods accompanied by her and the (trans. 807).
The school ―sits in on the classes quite often to help out with , IEP issues, mandate ‖ and works with and to ―tweak‖ the students‘ plans ―if there are specific ‖ (trans. 756). She also incorporates the school‘s discipline and codes into students‘ plans (trans. 757). The school is a board certified (― ‖) (trans. 802). She was not present at during July and August 2010; she was present at the School commencing in September (trans. 803).
Hearing Officer‘s provides , and as related services (trans. 757). The School did not have an on at the time of Ms. testimony, and students with on their IEPs had received Related Services Authorizations (―RSAs‖) for these services in September (trans. 827).
When students enter the school (either in July or September), the classroom assesses them on the ABLLS, the Brigance, , and math and reading assessments (trans. 760-761, 770).
, the at , testified that she was ―the bridge between the parents and the school ‖ by providing information to parents, ―clear up confusions,‖ facilitate and run workshops, prepare a parent newsletter, and answer phone calls and ―walk-in‖ inquiries from parents (trans. 870-871). The School includes classes of and classes of students. Monthly workshops offered to parents of students this school year include: creating realistic schedules at , using picture symbols, at , understanding , finding a , understanding an IEP, and understanding related services (trans. 872). Ms. has never provided and in a student‘s (trans. 890).
Ms. explained the process for the issuance of RSAs at (trans. 877-878). Ms. works with parents to assist them in locating a provider for their children using the RSAs (trans. 878). This year, there were students at the school who did not receive related services from early September (trans. 913).
In early July 2010, the parent came to for a tour (trans. 879). The day the parent had arranged to visit, the School was holding an open for parents of students expected to attend the School in the fall. The day‘s program included an explanation of the program and the School‘s code of conduct and 5 (trans. 880-881). Ms. reported that the parent was upset, because she was trying to figure out exactly how that pertained to . . . because the words that were used were truly to understand for her child . . . . I tried to explain to that things were modified so that it would be easier for to understand, and was still very . So stands for ―kind, appropriate, responsible, mature, and accountable‖ (trans. 911).
Hearing Officer‘s she also was very upset that this was not a one-on-one individualized meeting for a tour . . . . (trans. 881).
Ms. offered to take the parent to the classroom and answer her questions individually. Ms. took the parent on a tour, visiting the cafeteria (where she explained the breakfast and lunch programs), Ms. classroom, the computer room and the science room (trans. 881-883). They observed a science activity involving the differences between solids, liquids and gases. The parent that the lesson ―would have no meaning for ‖ (trans. 883). At the end of the tour, the parent indicated that she would like another opportunity to see the school. Ms. informed her that she did not know whether another tour would be possible (trans. 884).
Ms. stated that School had not been trained in ― t‖ procedures for students with - or (trans. 906). did use ― ,‖ for example, when ―a child is a , we move the student gently of the ‖ (trans. 907). She also explained that during summer 2010 or this school year, the classes did not include students ―who [were] in any way‖ (trans. 907). None of the students this year exhibited - or (trans. 908).
, a licensed of improvement employed by the Department of Education at as a and , testified that she conducts and sessions with students in her office at the School (trans. 951-953). Ms. also ― in‖ to classes ―to provide service and develop strategies to help the child be more successful within the classroom environment, strategies for the child to use, strategies for the to use to help that child‖ (trans. 953-954). She pushes into the classes one hour per day and works with a group of students on pragmatics, socialization, functional skills, auditory processing skills and turn taking (trans. 1014-1015). In addition, she pushes into these classes at request (trans. 1015).
Ms. stated, based upon her review of ‘s IEP and progress reports, that is ― delayed‖ in development and production and ―appears to be more delayed expressively‖ even though ―a lot of things are starting to emerge but slowly‖ (trans. 956-957). Ms. ―felt that functionally and pragmatically she is also
Hearing Officer‘s delayed in expressing needs and wants‖ but ―that these things are emerging at this time‖ (trans. 957).
Ms. noted that ‘s IEP mandate of for four 40 minute individual sessions per week and one 40 minute session per week in a group of two students was ―a rather large mandate‖ and that she would ―definitely prioritize it and try to accommodate it to the best of my ability‖ (trans. 959). Ms. described in detail how she would address the goals on ‘s IEP if had attended (trans. 961-968, 971-972). Ms. also described how she used verbal and token reinforcement during sessions (trans. 967, 1002-1003). She observed that ‘s needs were ―very similar‖ to those of ―many ‖ at (trans. 973; see also 1004).
Ms. has not worked recently with a child who was both self- and (trans. 987-988, 1006). To address al issues, Ms. uses redirection, proximity control and removal of objects such as (trans. 1007-1009).
, a certified employed by the Department of Education at , testified that she has received ―training with ,‖ had started ―the process of obtaining‖ a , and was certified in (trans. 1043-1045, 1133). She teaches a class for students with . She has 30 years of teaching experience.
Her class in July and August 2010 consisted of students ages through years. Academically, one student was at a - level, students were on a level, and students were on a grade level and one student was on a third grade level (trans. 1048). There were two classroom . Both received ―ongoing training through District (trans. 1050). Ms. grouped the students according to their abilities and provided individual attention to meet students‘ individual needs. The assist Ms. during group learning and ―work on specific skills with children if needed‖ (trans. 1050-1051). Ms. observes and assesses her students (with a ―criterion reference‖ Brigance and the ABLLS), reviews their IEPs and determines the teaching methods that will meet their goals and improve their learning (trans. 1052-1053). Furthermore, ongoing data collection is conducted in the classroom—as a component of , classroom keeps a record of how the students are performing (trans. 1054, Hearing Officer‘s
1189-1190). On a daily basis, Ms. and the spend approximately 45 minutes in the morning and 45 minutes in the afternoon working with each child individually (trans. 1161).
Ms. sends a notebook with each child‘s work every afternoon. In the notebook, Ms. and the parents ―can address different issues or concerns back and forth‖ (trans. 1054). In addition, parents can attend open school evenings and make an appointment to come to the classroom ―and spend time with their child, or go on trips‖ (trans. 1055).
During the summer months, there were more trips than during the rest of the school year. However, the school day in Ms. ‘s class is otherwise the same year round (trans. 1056). The day starts with instructional breakfast, then proceeds as follows: go to the classroom to get ready for the day, read the schedule, go over the weather and have some communication time during which the students initiate conversation. Ms. noted that ―we promote initiation all the time, and sharing and writing in their journals, and how they feel that day‖ (trans. 1055). There are students in the class who are able to write sentences in their journals (trans. 1170-1171). The class then has ―read aloud‖ with ―questioning to increase comprehension skills‖ which usually occurs in a group. After this group work, the students move to independent work during which they go to ―their work schedules, and they perform tasks until they‘re completed‖ and receive ―some type of reward‖ (trans. 1055-1056). Students then participate in adaptive education, art, computer and/or science and then instructional lunch—the students are not in the classroom the entire morning, they are ―constantly moving‖ (trans. 1056). After lunch, the students participate in daily yoga and cooking. There are breaks throughout the day for ―sensory blocks‖ (trans. 1056). There are also weekly trips to the library and stores. The theme during the summer was the environment. The class traveled to different environmental facilities throughout the city (trans. 1056-1057).
Ms. explained that the instructional meals benefitted the students by requiring them (based upon their needs) to make requests, improve pragmatic skills, learn to socialize, and learn to follow directions (trans. 1057). Hearing Officer‘s supports, such as the class schedule, provided ―clear expectations of where they‘re going. And for a child with , that‘s very important‖ (trans. 1058). In Ms. ‘s experience, ―without the schedules, the child would just there and be as to what to do next. Where if he has a schedule and he‘s prompted initially to go to his schedule, the child knows exactly what to do and can perform the entire schedule‖ (trans. 1058).
Ms. ‘s classroom consists of an outer area with a carpet for group activities and an inner area with a group instruction area. There are no separate areas for independent work, but if a child needs to be in a more separate setting, Ms. will set up partitions and move a desk (trans. 1067).
Ms. reviewed ‘s IEP and stated that appeared to be functioning at a pre- / level in her ―skill areas‖ and ―seem[ed] to have some motivational issues‖ (trans. 1069). has ―learned a lot of good skills in discrete trial training,‖ but Ms. ―didn‘t get the sense there was a lot of application of these skills or generalization‖ (trans. 1070). adaptive skills were low in all areas, and her receptive skills appeared to have decreased; Ms. was concerned as to whether was ―getting enough practice‖ (trans. 1071). Adaptive skills were ―a priority‖ in Ms. program through traveling in the , , dressing, eating and conversation (trans. 1071-1072).
Ms. described how she would have worked with on her IEP goals had attended the class in July 2010. With respect to ‘s goal to act appropriately near and siblings, Ms. stated that would ― to ‖ if she were kept ―busy and engaged in an activity,‖ ―observed at every moment‖ and provided with unspecified ―motivational material‖ (trans. 1075). With respect to the annual goal for answering ―what‖ questions about items in the , Ms. would work on with on labeling skills ―through a series of discrete trials,‖ using objects in daily life, and on reinforcing ―these skills throughout the day‖ (trans. 1077). Ms. described the importance of generalization of skills and stated that she used positive reinforcement, prompting for the correct response and teaching in order to generalization (trans. 1078-1079).
Hearing Officer‘s
Ms. would address the tracking, the sorting and the replicating block design goals on a one-to-one basis (trans. 1083-1086). She would change the goal for ―waiting‖ for a reinforcer and during transitions. Ms. would address such a goal for ―waiting‖ by having in a group setting and other students who are not receiving reinforcement—such observation ―would encourage her to also wait‖6 (trans. 1084). The goal to identify body parts would be worked on during yoga (trans. 1087).
Sustaining eye contact and responding to name goals would be addressed through an unspecified ―highly motivating reinforcement . . . until it‘s done without the external reinforcer, and then it would go to praise‖ (trans. 1088-1089). The goal relating to reciprocating greetings would be addressed every morning in the classroom and at lunch and dismissal times (trans. 1089-1090). Hand washing and drying would be addressed at mealtime through task analysis, picture schedule and/or modeling (trans. 1090).
Counting (annual goal, Department Ex. 1 at p. 13) is worked on ―throughout the day‖ (trans. 1090). According to Ms. , ―we count the students who are lining up . . . how many students are present, how many students are absent‖ (trans. 1090-1091). Ms. would address ‘s goal for demonstrating an increased understanding of by working with the ; in addition, pragmatic skills are ―used throughout the day‖ and are ―encouraged‖ during group play, on trips, and during group meetings and mealtimes (trans. 1091-1092). Pre-reading goals would be worked on individually through discrete trials and with the computer (trans. 1095). The IEP specifies that progress with respect to all the IEP goals is measured in terms of ―learn units;‖ Ms. testified that ―learn unit‖ is not used in District (trans. 1153-1154). She was not familiar with ―learn units‖ (trans. 1157).
Ms. acknowledged that there are 120 or more objectives on ‘s IEP and that after school services would enhance the ability to deliver this number of short term objectives to (trans. 1151-1153). However, Ms. stated that she would
6 This is a creative idea from a talented . However, it would not work with . She is not going to observe the other students. She is not going to learn from the other students. She is not going to be encouraged by the (positive or negative) of the other students.
Hearing Officer‘s be able to implement all the objectives during the school day in the program (trans. 1218).
With respect to the plan on page 30 of the IEP, Ms. reported that she had worked with students who had exhibited the listed for : , of and , to , and her temples with her palm (trans. 1103). Ms. would work with and the in an ongoing manner to and away from these as per the (trans. 1104). In addition, Ms. would follow the second and third strategies on the : when has completed a non-preferred activity successfully, she would receive a preferred item; and when completed a requested task, she would receive a reward (―first/then‖). Ms. would also teach alternate methods of -getting by for (trans. 1104-1106). If were to engage in an act, such as pulling , Ms. explained that she would respond by prompting to stop, redirect her to another activity, place between and the victim, and, if necessary, obtain the of the in the class (trans. 1204-1205). Ms. stated that she does not use holds to a student (trans. 1207-1208). She observed that if a student were ―that ‖ that he or she needed to be , then he or she ―probably would not be in . . . this setting‖ (trans. 1208). Neither she nor the in the class have had to a student in the class during the past two years (trans. 1209). Ms. ― ‖ students and ― ‖ them from ― ‖ (trans. 1210).
Ms. stated that she would work with the parent and the on schedules for the parent to implement at and ―check in to see how the child is doing at , because it won‘t work in just one location, it has to be in both‖ (trans. 1107).
Ms. opined that the class she taught in July and August was appropriate for because she ―had other students functioning at her level‖ and with ―similar needs‖ and because the ―program is designed to meet those specific needs written in her IEP and functional assessment‖ (trans. 1110). One student was functioning at a level who was not ; children were functioning at a level who were ― ‖ (trans. 1113). There were in the class in the summer; manifested and one Hearing Officer‘s girl engaged in self- (trans. 1113-1114). No student manifested both and (trans. 1114).
would have moved to Ms. class in September; there were no girls in Ms. class (trans. 1120-1121). Of the students in Ms. class, students are functioning at a - level, students are functioning at a level and one is functioning at a grade level (trans. 1122-1123).
Ms. uses a ― ‖ area in her classroom. It is a . can also go to the sensory room (trans. 1124-1125). She has used the bean bag and the sensory room for a student who would to the and become ―‖ (trans. 1125).
,a education in district and the of / School, testified that during the summer session 2010, had on ,a and ,a and a part-time (trans. 1314, 1316-1320). As of September 2010, the school was with , and , and no or (trans. 1320). was finally able to secure a and an to begin at the School on October 25. Parents who requested RSAs for the period from September through October
25 were provided with the forms; ―the rests of the opted to wait pending the arrival of at the school‖ (trans. 1322). All the parents who received the RSAs ― them back to the school‖ because they were unable to locate (trans. 1322). Students would have ―made up‖ missed sessions of related services during the first term of the school year even though there were still students who were not having their mandates fulfilled (trans. 1354, 1362).
The School has been with a number of school since the start of school in September, including individuals who engaged in professional development of , in a ―positive supports program‖ and in working with on positive and classroom , in reviewing and updating , in ensuring that IEPs reflected students‘ individual needs, and in (trans. 1328-1330,
1335) .
When students in the classes ―become to the rest of the class, the students are generally cared for one-to-one by in the broader space surrounding the classrooms‖ such as the hallway or an additional room in the area of the School to Hearing Officer‘s
―work with them, attempt to them‖ (trans. 1340). can also assist in these situations (trans. 1340).
explained that on the roster (Parent‘s Ex. CC) the designation ― ‖ is Ms. summer class and ― ‖ is Ms. September class (trans. 13411342). These class designations ―are given to the school by the District without having a member assigned to them, based on anticipated enrollment data. It is up to the school administration to then assign to each of the classes that have been designated by the District‖ (trans. 1350-1351). In September, the School assigned Ms. to and to room (trans. 1351). Similarly, in September, the assigned Ms. to Y12 and to room (trans. 1353). The Parent‘s Case
- , a certified and , testified that she had a doctoral degree in special education and was a board certified (― ‖) (trans. 1513). She was employed by as education (trans. 1516). She described as a ― school‖ specializing in ―serving children primarily on the ‖ (trans. 1515-1516). There are children enrolled in the school, in eight classrooms (trans. 1517). has a 12-month program, and the school from . to . (trans. 1521). provides and to its students and has a gym with sensory based equipment (trans. 1521-1522). are ; an additional seven members are completing the requirements towards a (trans. 1523-1524). are certified special education (trans. 1524). Each classroom includes and . The have bachelor‘s degrees in special education or (trans. 1524-1525). also participate in training at (trans. 1525-1527).
are trained to manage and address - and , , and (trans. 1528-1529). is also trained to collect data on specific and perform (trans. 1530-1531). have prepared and for (trans. 1532). In spring 2010, included her into her and leaving a ; , , , , and ; and over and objects (trans. 1533). There are periods of time when will have to per day during which she is her and to Hearing Officer‘s per day involving (trans. 1616-1618, 1620). described these as ― ‖ and fluctuating in frequency and duration—sometimes her ―could consume . . . a good portion of [the] school day‖ and result in and bruising of (trans. 1535-1536). Sometimes gives indications that she is about to have a al by her . Other times, ―she goes from to ‖—from engaging productively in an activity to over her desk, ― ‖ at a member to her or , the with both , a , and her into a member –all within a two second time frame (trans. 1546, 1548). An additional member is required to redirect and free the first person from her (trans. 1547). members who work with —heavy lined and . ―were so many to their . Their literally were with , with ‖ (trans. 1546; see also 1612-1613).
have shown that the purpose of these was to gain attention, to gain access to preferred items, to demands or ―to gain access to some sort of sensory stimulation‖ or some combination of these purposes (trans. 1539). addressed these by using functional communication cards to teach ―some functional communication, to effectively terminate and give her opportunities for appropriate contingent escape from work,‖ with phrases such as ―I don‘t want to,‖ ―I‘m done‖ and ―it‘s too hard‖ (trans. 1539). also taught through ― ‖ how to gain access to desired things without using and how to wait—with techniques such as working with her to follow through with one task before gaining access to the reinforcement item (trans. 1540). also incorporated opportunities for choice in ‘s academics—permitting , for example, to choose between reading activities and identifying numbers (trans. 1541). Reinforcement for is given at 60 second intervals—with puzzle pieces that add up to the reinforcement item or tokens (trans. 1543-1545).
participated in the May 26 CSE meeting by telephone (trans. 1553). She opined that the included in the IEP was inadequate to address ‘s as they were manifested at the time of the CSE meeting (trans. 1555-1556). She also opined that the summary of in the District placement office‘s referral Hearing Officer‘s form was inaccurate— were not ― ‖ and resulted in (trans. 1556). No one at the CSE meeting described as ―mild‖ (trans. 1557). personnel recommended that attend a program with a oneto-one teaching setting.
‘s curriculum at includes communication skills, academic skills such as reading (pre-reading and functional sight words), writing and math, social skills, , daily living skills and leisure skills (trans. 1561-1563). The term ―learn unit‖ found in the IEP is an term ―to describe discrete trial training‖ in which are ―correcting and/or reinforcing student learning and student responding‖ (trans. 1564). described in detail how is developing self-sufficiency in tasks of daily living at (trans. 1565-1568).
When is introduced to new members there is a ― ‖ in her and . opined that if were to to a new school ―she‘s going to have very, very high rates of those same type ‖ (trans. 1567).
explained that -based attend team meetings at and observe in her classroom. Both the based s and carry over the plan so it is consistent for at school and at (trans. 1577-1582). opined that needs based therapies for generalization purposes and to address her which ― with her ability to be a part of the larger . . . . she has going out in public where she‘s or dropping to the sidewalk‖ (trans. 1592-1593). needs extend beyond the school day and need to be addressed in settings other than school (trans. 1593-1595, 1633). opined that ‘s ―educational and al deficits are great enough, she requires that one-to-one teaching, as well as systematic carryover and practice at and support at ‖ (trans. 1633-1634).
stated that has made progress at in the areas of communication skills—she has continued to acquire new phrases and increased her spontaneous ; she has improved her ability to sit with a group of students in the class (with one-to-one support because she will at ‘ and may scratch them); she continues to make progress with reading skills (and is beginning to Hearing Officer‘s integrate comprehension into her sight word reading); and she has improved her ability to follow some daily routines (trans. 1583-1584, 1590-1591). has reduced her rates of , but her are still variable (trans. 1589). In opinion, continues to need one-to-one teaching and more than one-to-one support to address her (trans. 1584-1585).
, who has a master‘s degree in education and and is a , testified that she was employed as a (trans. 1747). has been in her classroom for the 2009-2010 and 2010-2011 school years (trans. 1747-1748). Ms. ―write[s] all‖ programs, plans and IEP goals; assesses ; runs the classroom; manages ; and trains the classroom (trans. 1748). There are other ( s) in the classroom (trans. 1749). The are but not ; they all work with on a daily basis (trans. 1751). There are students in the class ranging in age from through years (trans. 1754).
is a - special education school and provides a 12-month program. provide and for three 30 minute sessions per week and occupational for two 30 minute sessions per week (trans. 1783-1794).
curriculum is developed by assessing her with the ABLLS (trans. 1752). Her curriculum includes communication, self-help skills, academics, reinforcers and - (trans. 1753).
There is a plan in place for (trans. 1761). Ms. described ‘s as ―very significant‖ and explained that ―has very high that are quite at times, where she will bite, she will , she will throw a desk, she will pull your , she will you. And sometimes these may all occur at the same time‖ (trans. 1755). Ms. , for example, a ―zip-up sweater jacket with a [and] ‖ that go over her and (trans. 1755). The members currently working with usually such garb when working with her; some members wait until she becomes upset before donning their gloves, but all garments that cover their arms and chests and pull their back or cover their with a hood (trans. 1756, 1788). ‘s al are ―frequent‖ and ―daily‖— had an episode immediately prior to Ms.
Hearing Officer‘s testimony (trans. 1756). works with one member during instruction; however, there is always an ―extra person just on call‖ to assist with should she enter ―an state‖ (trans. 1759). During her worst , has required five to ensure her and the of others (trans. 1759). Ms. explained that is tall and strong, and the attempt to ―block‖ her (trans. 1760). Every in the classroom has been by (trans. 1760).[7] manifest, on average, 30 to 40 times per day (trans. 1790). During the 2009-2010 school year, these types of occurred about 20 times per day (trans. 1791).
Ms. testified that has the capacity to learn, and she does learn (trans. 1761). At , has learned to communicate—she can now make requests and answer ―wh‖ questions and social questions. She is also learning self-help skills, leisure activities and skills (trans. 1761). needs consistency in her program. Ms. noted that ―any slight change in her programming, any new target may cause a ‖ which ―could escalate‖ (trans. 1764). Specifically, the ―initial presentation of a new item or a new routine or a new anything, any slight change will usually result in , and so . . . you have to work through those ‖ in order to teach new skills (trans. 1777).
Mondays, or any day back from a break, are the most difficult days for — her and are ―higher‖ (trans. 1768). Ms. opined that needed one-to-one instruction outside the school day because ―she needs the consistency and the engagement throughout the entire day with people who are trained to work with these , who have a history with the background of her plans, and for working on different goals that‖ cannot be addressed in a school setting (trans. 1770). Ms. stated that Mr. and the have the skills necessary to work with (trans. 1771).
Hearing Officer‘s
Ms. communicates with Mr. about twice each week when he drops off at , when he attends clinic meetings and when Ms. needs to consult with him on (trans. 1759).
Ms. opined that needs one-to-one instruction ―at all times‖ in order to learn and would be unable to progress in a class (trans. 1766). In such a setting, would ―be highly disruptive to the classroom. It would be unsafe for her and for others‖ and ―it just would not be appropriate . . . for her to reach her‖ IEP goals (trans. 1767).
Ms. wrote the goals that the CSE incorporated into ‘s IEP for the 2010-2011 school year (trans. 1766-1767). She defined ―learn units‖ as ―an interlocking three-term contingency‖ involving the and the student and measuring the of the and the responses from the student. A ―learn unit‖ is an teaching tool (trans. 1767-1768).
Ms. works with related service on a daily basis to address and to ensure that they are all working together and consistently on ‘s goals (trans. 1772). She also communicates with outside for the same purposes (trans. 1774).
Ms. opined that has made ―tremendous progress‖ at in the areas of social skills, her ―relatedness to her environment,‖ and communication skills (trans. 1776-1777). has also made progress in reading. She was working on matching words to pictures and identifying sight words (trans. 1778). In the ADL area, is now able to prepare lunch with the assistance of picture prompts (trans. 1780).
, a licensed , testified that she was employed by and also maintained a school (trans. 1378). She has worked with for the last and the current school years and now works with for two 30 minute individual sessions at (trans. 1379). has a that is used for . uses the sensory facility during the school day and is also able to utilize sensory equipment within her classroom at (trans. 1380).
Ms. observed that ―has a large repertoire ―of needed sensory activities and ― al needs as well, which require additional support during her sessions‖ (trans. 1381-1382). , , , , and . She also injures Hearing Officer‘s by her and and her own (trans. 1382). At least (the classroom and the School‘s educational ) who are attend each session with ; ―frequently, though, it is four personnel including [Ms. ] during her sessions to keep her safe and to keep us safe, as well‖ (trans. 1382; see also 1411). Ms. explained that ‘s are unpredictable; she will ―frequently have an episode‖ even during an activity she enjoys (trans. 1384). is not affected by the (such as ) of the other students in the class (trans. 1414-1415).
Ms. instructs ‘s to implement and sensory activities in class (trans. 1380-1381, 1389). She noted that ―requires [this] collaboration for every single session that she has . . . . there are some times that an additional hour is spent with the classroom . There are some times that it is more like an additional two to three hours, based on what the collaboration might need to be‖ (trans. 1381).
Ms. participated in the May 26 IEP by telephone (trans. 1385). At the meeting, there was discussion of ‘s and (trans. 1385). Ms. ―vehemently oppos[ed]‖ the program recommendation because ― would not be able to learn at all in an environment where she did not have a specifically trained person helping her throughout the course of the school day‖ (trans. 1386). This individual must have al training and be able to structure school day based on a al model. The ―team‖ indicated that a would work with but were unable to reference the level of training of this individual (trans. 1387-1388). Ms. opined, based on her observations of programs and her understanding of , that the program was ―completely inappropriate‖ for because ―not only would it inhibit her ability to learn, it would also inhibit the abilities of all of the other children in the classroom‖ (trans. 1388). needs one-to-one teaching with the support of additional for her own learning and and the learning and of others (trans. 1382-1383, 1388-1389, 1398).
At the IEP meeting, there was also discussion of need for -school services (trans. 1391). The ―team‖ stated that the purpose of the IEP meeting was to discuss school-based services and that ―they were not allowed to give [ ] outside Hearing Officer‘s hours in addition to the school-based services‖ (trans. 1391). Both the parent and that needs -school services ―to engage her both in terms of integration, but to also have her appropriately throughout the course of the day after she school‖ (id). In addition, needs school hours for generalization of skills (trans. 1419).
Ms. drafted the occupational goals and provided them to the CSE for inclusion into the IEP (trans. 1392). ‘s main deficit is in her sensory integration:
she has very large with her ability to incorporate input.
Many of these activities are used within her the course of the day. While she enjoys them, she frequently does not know exactly what type of input or how to appropriately engage in that input. Additionally, she has large fine motor deficits, which inhibit her ability to participate in writing activities, pre-handwriting activities, different classroom-based tabletop tasks, as well (trans. 1393-1394).
has made slow and steady progress in these areas during the period of time Ms. has been working with (trans. 1394). During the past six months, has made ―meaningful progress‖ by learning to ―identify some appropriate sensory-based activities, which have been incorporated into her classroom and into her [ sessions where she is working on increasing her core muscle tone‖ and ―increasing her following of verbal directives‖ (trans. 1395). is able to request and complete these activities. She has also improved her motor planning and has learned to make some handwriting strokes (lines, circles and tracing a letter)(trans. 1395).
Ms. has discussions with the parent about ‘s needs and progress. The parent is an ―integral part‖ of ensuring that the skills worked on in school are carried over into and (trans. 1400, 1403). She has also coordinated, and learned from, school s (trans. 1401-1402).
The progress report indicates that the ―focus of has been to improve . . . and of input in order to effectively participate within her environments, motor integration for greater success with fine and gross motor skills, balance and coordination and decreasing while improving attention to task‖ (Parent‘s Ex.
Hearing Officer‘s
J at p. 1). can be redirected during with both and cues. She has made slow and steady progress towards her goals and ―benefits from a highly structured environment that utilizes the principles of sensory integration to further develop her gross motor, fine motor and -perceptual skills‖ (Parent‘s Ex. J at p. 2).
,a and employed by , testified that she was providing and to during the past and current school years (trans. 1430). She prepared the and goals for May IEP and participated in the CSE meeting by telephone (trans. 1431). At the meeting, Ms. was ―cut off‖ before she could discuss pragmatic goals but was able to get in some information about receptive and expressive goals (trans. 1432, 1454). In addition, personnel were ―not allowed‖ to give their opinion that the recommended program was not appropriate for , even after asking for the opportunity to give their opinion (trans. 1440). did make clear at the meeting the extent of ‘s selfand (trans. 1445).
Ms. reported that has when confronted with new and/or challenging tasks. In response to such tasks, will pull (frequently), , , , tip and swipe at materials (trans. 1433). To against , working with (they have found that work best) and that their entire up to their (trans. 1434). When Ms. provides to , to other (most are ) are present to support (trans. 1434-1435). Ms. communicates with at team meetings and when they observe at (trans. 1436). The have made suggestions to Ms. which have enable her to better address and needs (trans. 1447). Ms. opined that needed and outside of school for generalization (trans. 1460).
Ms. explained that has spoken but that it is not ―always appropriate‖ and does not ―always come in the form of contextual, meaningful ;‖ exhibits ―scripting‖ that is not related to anything going on around her (trans. 1438). She has ―significant deficits‖ in both expressive, receptive and pragmatic (id). With Hearing Officer‘s respect to pragmatic , has learned to greet and respond to greetings and was learning to use people‘s names when greeting them. She was still working on eye contact and vocal volume (as in not )(trans. 1432). has also improved her ability to respond to individual ―wh‖ questions (trans. 1441). She still needs cues and ―a lot of help‖ to use to express her or state—such as ―I am ‖—but has made improvements in this area (trans. 1442).
Ms. opined that would not be able to make progress in a setting less than because ―at times it can take four to manage her ‖ including using t procedures (trans. 1444; 1448-1450). Ms. ―can‘t picture without one-to-one support, let alone without three-to-one or four-to-one support, considering how her can get and how much she can ‖ (id).
testified that he had master‘s degrees in education and educational administration and a certificate degree in (trans. 1642). He has been working with children with for 21 years (trans. 1463). He is not a because he has not passed the examination although he has completed all the other requirements for this credential (trans. 1654).
Mr. was employed at the ; in 2002, he left to form a partnership, , to provide services to children on the and children with needs (trans. 16441645). The company employs four and some part time as needed (trans. 16461647). Mr. stated that he has significant experience with ― ‖ children and children with self- and (trans. 1648, 1650). He has used strategies that include holds to ensure that the child is not injuring or others and strategies to ―move the child . . . into a better state of mind by prompting or guiding them along ally so they get out of the tantrum and can ease back into the class‖ (trans. 1650-1651). He described methods of reinforcements, prompting and fading prompts (trans. 1651-1653).
Mr. has worked with for the past or years (trans. 1655). was taught at for or years during her earlier years ―because her were so she wasn‘t able to be in the school setting‖ (trans. 1655-1656). The 2008-2009 school year was year in a school setting. has attended since that Hearing Officer‘s time (trans. 1656). Mr. created and implemented, with , a three-week plan to transition into in 2008. He opined that would not have been able to enter without such a plan to ―ease‖ her into the new environment and to accustom her to her new and s (trans. 1656-1657). Mr. explained that ―needs consistency all the time because she needs to know what‘s coming next. She needs to know what her life is about. In better terms, she needs the consistency to be able to attend, to be able to do her work, to be able to understand what‘s going on. She needs to know who‘s going to be working with her, what‘s going to happen for that day‖ (trans. 1658). He opined that if were to change schools in spring 2010, she ―would definitely need a transition plan‖ due to her need for ―consistency‖ (trans. 1659). Mr. continues to communicate with , discusses program with them, observes at approximately every two weeks, and attends team meetings every two months (trans. 1662, 1664-1665, 1726).
Mr. stated that engages in both - and . She has ― ‖ during which she , and and may also , and . These may last from five minutes to a half hour (trans. 1660). She also tries to ― other ‖ and has had to have been by (trans. 1663). also screams and and , particularly when something unpredictable occurs (trans. 5). have ―been up and down this year;‖ Mr. attributed this variability, as least somewhat, to changes during (trans. 1689). When is engaging in these she is not available for learning (trans. 0).
Mr. and other personnel currently provide a total of approximately 20 hours of per week to . These services are provided in ‘s office and in her (trans. 1666-1667). Mr. also provides one and one-half hour of direct parent training per week to parents included in the total 20 hours (trans. 1668, 16861687, 6). He has also worked with the and at night on an basis (trans. 1672-1673). charges the following hourly rates to parents: for Mr. ,$ per hour; ,$ per hour; and ,$ per hour (trans. 1669-1770). When personnel work together to treat , they bill only for one individual‘s time (trans. 2).
Hearing Officer‘s personnel are able to work on more ADL skills at and in the than personnel are able to work on in school (trans. 1675-1676). In particular, they work on travel and using locations in the , such as restaurants, as well as by and (trans. 1677, 1682-1684). Learning these ADL skills enables to have some degree of independence (trans. 1676-1677).
Mondays are most with respect to her because she does not receive any services on Sundays (trans. 1687-1688).
At the present time, ‘s greatest deficits are in the areas of and (trans. 1). Mr. is working to address the by posing slightly more challenging activities and experiences to and working on increasing her comfort with these activities and experiences (trans. , 1707-1708). He is also using a program to ―prompt out of her‖ by ―making her talk in complete sentences or at least four-word utterances because she‘ll say one word and point to something and expect to get it.‖ This demand could cause a tantrum, but Mr. testified that needs to learn how to ―talk to meet her needs‖ (trans. 3).
Mr. described the process for taking data on programs (trans. 17281731). For example, one the programs addresses ‘ being in ― proximity with other children‖ (trans. 1730). Programs need to be worked on across environments ( , office, school, out in the ) because needs to learn this skills in all these environments (trans. 1731, 1733). Once she learns a skill, her s must reinforce it (usually every other day) over time in order for her to maintain that skill (trans. 1731-1733). Mr. also takes ―data‖ when he engages in ―natural environment teaching‖ with —when he is instructing her in walking down the street, in the park, in a restaurant—when they ―work on the skills that they‘ve learned one-to-one in the office and try to generalize it into the real world. It could be playing with another child in the park . . . . eating with a fork and a knife at a diner, sitting for an entire meal without having issues‖ (trans. 1735). Data taken during this type of teaching is ―more anecdotal‖ that the data taken during discrete trial teaching (trans. 1744).
Mr. reported that learned only in a one-to-one ―modality‖ and ―wouldn‘t be able to learn in any other kind of setting‖ (trans. 1661; see also 1678). In a Hearing Officer‘s group setting, ―tune[s] out‖ (trans. 1661). Mr. opined that a one-to-one in the Department‘s program would not be appropriate for because she would become ―too dependent on that one person, and she wouldn‘t listen to anyone else‖ (trans. 1679). He also opined that was an appropriate ―component‖ of ‘s educational program and that needed to continue with after-school one-to-one (trans. 1684, 3- 4). has made progress in her ability to maintain in a group setting and with respect to skills, in particular , her , preparing food in the microwave, and engage in appropriate leisure activities for approximately 45 minutes (trans. 7- 8).
, a licensed , testified that she was employed by as a (trans. 1823-1824). She provides approximately three hours per week of and to and has been working with her since the summer of 2007 (trans. 1824-1825). According to Ms. , has delays ―across all domains‖ (trans. 1826). is able to engage in three to four simple back and forth exchanges with one other individual. She can request desired items with . She does not comment on her environment without a prompt or full modeling; she never initiates with or and responds only to ―extremely simple questions‖ (trans. 1827-1828). Ms. considers to be ―minimally verbal‖ (trans. 1828).
has interfering , including , pulling, kicking, , and throwing . engages in these during sessions and has Ms. (trans 1829). Ms. has availed of the assistance of personnel during sessions to address ‘s , which have become more intense this school year and ―interfere with ‖ (trans. 1829). She has worked with personnel ―to get those difficult under control and the sessions more recently have been much better‖ (trans. 1830).
Ms. communicates with ‘s at in order to ―aid in consistency and generalization‖ and attends ‘s clinic meetings (trans. 1836). Ms. opined that needed to receive both at school and after-school because she needs ― ‖ to work on goals in a consistent and effective manner (trans. 1938).
Hearing Officer‘s
Ms. is working with to use when she becomes or frustrated. Ms. prompts to point to picture cards to describe how she feels. This strategy works sometimes; but if she ―gets really ‖ this strategy does not stop her ―from ‖ (trans. 1839). On ―the worst possible day,‖ has had 50 during an hour session (trans. 1850-1851). During the 2009-2010 school year, had fewer , and Ms. was better able to redirect ―because she was smaller and not as strong, and the weren‘t as ‖ (trans. 1852).
has made progress working with Ms. . now understands directions, play games, request desired items, and read sight words (trans. 1841-1842).
charges $ for a 45 minute session and $ for an hour session (trans. 1843).
The parent subpoenaed , the of placement at District to testify[8] (trans. 1257). Her duties included the five placement officers (one for each borough). The role of the placement office is to ―identify appropriate placements based on recommendations by school assessment teams of the Committee on Special Education (trans. 1257). In spring 2010, was the Placement Officer. She left the placement office in September 2010 (trans. 1258).
Ms. stated that, to her knowledge, District did not have any classes with a one-to-one teaching ratio (trans. 1265). Placement office uses the information in the ― box‖ on the transmittal form (Parent‘s Ex. BB) as a ―snapshot . . . of the child‘s ‖ (trans. 1279). Parent‘s Ex. BB, titled ―District Placement Office Referral Form,‖ shows a handwritten notation that the site ― M@ ‖ was offered to on July 9, 2010. The site offer was written over an erasure. DOE documents show that Ms. summer 2010 class was ― ,‖ Ms. ‘s fall 2010 class was ― ‖ and Ms. fall 2010 class was ― ‖ (Parent‘s Ex. CC at pp. 1,4).
The FNR for was dated June 10; the placement offer of , class was dated July 9 (trans. 1286-1287). District placement office personnel ―typically do not communicate with the parent‖ (trans. 1291, 1299). In making placement
Hearing Officer‘s determinations, placement officers presume that schools are fully (trans. 13011302).
The parent also subpoenaed , a Department of Education employee, to testify (trans. 1472). From August 2009 through August 2010, Ms. was assigned to the District placement office and placed students in (trans. 1475). She stated that she received referrals and placed students according to their classifications and needs (trans. 1477, 1485). She was unable to recall when she received the referral form (Parent‘s Ex. BB) for (trans. 1481). Ms. stated that she wrote ― at ‖ on the form and dated the notation ―July 9‖ (trans. 1482, 1501). When asked to explain how the Final Notice of Recommendation was dated June 10 and the placement notation on the referral form was dated July 9, Ms. explained that ―it could have been an error‖ (trans. 1501).
Ms. stated that ― ‖ was the class assignment and that she selected this class based on ―age, classification and the ratio of ‖and functional levels (trans. 1485, 1491).
Ms. did not have a copy of IEP available to her when she made this placement determination (trans. 1485). She usually did not contact parents before making a placement determination (trans. 1486). She did not remember contacting parents (id). Ms. did not know that if were to attend in July, she would be assigned to a different class with a different and classroom in September (trans. 1487). She did not investigate whether would be able to provide the related services set forth on ‘s IEP (trans. 1490).
The parent testified that attended a program at pursuant to a Department of Education IEP (trans. 1867). was overwhelmed by, and unable to manage in, this environment even with the supports of a one-to-one and then a one-to-one (trans. 1868). Prior to the 2008-2009 school year, the parent created instructional programs for delivered mainly at . was enrolled at for the 2008-2009 school year. For the 2010-2011 school year, attends , has with Ms. after school, and from personnel (with parent training) for between fifteen and 30 hours per week (trans. 1869-1870). The Hearing Officer‘s parent is not seeking reimbursement for hours in excess of 20 hours per week (trans. 1871).
has worked with personnel, including Mr. , for eight years (trans. 1875). The parent explained that and her have benefitted from s who have worked with for many years—these s understand and have learned from past successes and failures (trans. 1876). ‘s are ―more subdued‖ when she is working with personnel (trans. 1876).
The parent brought to Department evaluations in spring 2010. The parent remained during the evaluation (at Ms. request) in order to establish ―instructional control‖ over proceed with the testing (trans. 18781880). In preparation for the IEP process, the parent promptly provided all evaluations to the CSE (trans. 1882).
The parent attended the May 26 CSE meeting (trans. 1883). Mr. appeared to lead the discussion at the meeting (trans. 1885). At the meeting, the parent asked to discuss placement and was told that it was not possible to have a placement officer at the meeting. She then asked if she could be present when the placement officer received information and made the placement decision. She was informed that ―this was not protocol;‖ there was no other discussion of placement at the CSE meeting (trans. 1886-1887). The parent was never contacted by anyone from the Department to discuss placement (trans. 1888).
At the CSE meeting, the parent and and personnel ―brought up‖ ‘s need for one-to-one instruction from trained individuals because her and made this the only ―modality that has been successful for her‖ (trans. 1888). CSE personnel would not consider this form of instruction. According to the parent, ―they wouldn‘t entertain any discussion of it. They just said this is not part of our discussion‖ (trans. 1909). After the meeting was over, the parent waited at the CSE offices for two and one-half hours to receive a copy of the IEP (trans. 1891). A plan was not developed during the meeting (trans. 1891). The ― Plan‖ annexed to the IEP was not created at the meeting (trans. 1892). The parent testified that the statements on the IEP (at p. 29) that (1) everyone at the meeting agreed that a special Hearing Officer‘s class in a special school was an appropriate program for ; and (2) ‘s needs could be addressed within the school, were both false (trans. 1892-1894). The parent and and personnel stated at the CSE meeting that a would not be able to teach nor ―contain her ally‖ (trans. 1894-1895). The parent and personnel expressed their belief that a program was inadequate for (trans. 1906).
The parent explained that with , when one is another comes in its place. So we‘ve gotten rid of one for now, but something else comes in its place. It doesn‘t mean that there‘s no knowledge or progress . . . but she‘s in a constant against newly emerging . And as the material itself becomes more , she requires that high level of support to master even more complex material. . . . [L]ost in all this is that there‘s a lot of skills that are very solid that has retained. She goes to the by . . . . she‘s able to eat with a fork [and] spoon. We take that for granted, but that‘s years and years of building block that gets us to the point where she can sit at a table and pick up a glass and drink from her glass . . . . There are a lot of successes. But the challenges become more , and new and different emerge that need to be dealt with (trans. 1900-1901).
At the CSE meeting, all the goals considered were prepared by (trans. 1901). Department personnel did not ask what ―learn units‖ were (trans. 1902). The parent testified that the CSE gave the evaluations and materials she offered a ―very superficial‖ treatment— except insofar as they seemed to not want to go to the bother of making goals and objectives for [ ] so they. . .were perfectly happy to rely on the goals and objectives that prepared rather than doing the work to come up with th[em], and yet when ...
offered an opinion about the modality that would work for , suddenly their expertise wasn‘t needed (trans. 1910).
In addition, when the parent raised the issue of creating a transition plan to acclimate to a new placement, she was told by CSE personnel that ― are just fine when they make
Hearing Officer‘s changes‖ despite the parent‘s statements that has difficulties making ―changes‖ (trans. 1931).
The parent received the FNR on June 12, 2010. She made an appointment for June 17 to meet with the or . At the time she made the appointment, she was informed that she would meet privately with either the or to discuss the placement for (trans. 194-1915, 1950). When the parent arrived at the school on June 17, she was told that she would not meet with the or because it was ―open day at the school‖ and ―there would be a group meeting to discuss the principles of the school‖ (trans. 1916). At the group meeting, the parent learned that there were 350 students at the school, all emotionally disturbed except for the students with in two classes (trans. 1917). Ms. gave the parent a tour. The parent found that the school was ―a very big building for to have to navigate‖ and would overwhelm her (trans. 1922). Also, would not be able to understand the concepts taught in the subject area classes, no matter how the instruction was ―differentiated‖ for her (trans. 1923).
The parent informed the CSE in writing by letter dated June 17 that she had visited on that day after making an appointment to visit the school and meet with the (Parent‘s Ex. M; trans. 1927-1928). When she arrived at the school, she was informed that there was an ―open ‖ that day and that she would not be able to observe a class. The parent attended an information session and was given a tour. Her letter outlines her observations and conclusions with respect to deficiencies in the program for . The parent informed the CSE that she would continue to enroll at and seek reimbursement for tuition and after-school services.
The parent entered into an enrollment contract with dated July 1 (Parent‘s Ex. T). The parent paid a non-refundable deposit of $ . The tuition for the 20102011 school year is $ . The enrollment contract includes a clause that stipulates that if a parent accepts a placement from the Department of Education, the parent is no longer bound by the contract‘s enrollment terms (trans. 1934). The School District‘s Rebuttal Case Hearing Officer‘s
, who holds a doctorate in special education with a focus on , testified that she was a certified and a with a doctoral certification (trans. 1979). She is a of education at , teaching classes in education, and applied analysis and works as a consultant to parents and school districts with respect to programs (trans. 1981-1982, 1987). has never met nor observed (trans. (2021).
When she provides children with one-to-one , charges $ per hour (trans. 1987-1988). She charges this rate because ―that‘s the rate of reimbursement that the DOE provides‖ (trans. 1988). If the services are not funded by the Department, she charges the between $ and $ per hour (trans. 1988-1989). She charges school districts $ per hour for and providing training for parents (trans. 2032-2034).
testified, based upon her contacts with in , that masters level charge between $ and $ per hour for one-to-one (trans. 1992). Agencies will pay masters level non-between $ and $ per hour (trans. 1992). Masters level non-charge $ to $ per hour more per hour when they are not working through an agency (trans. 1993). She operates her own firm, which charges $ per hour for master‘s level s who are not and $ for hour for (trans. 2032). testified with respect to the importance of the credential (trans. 1996-1997). She opined that rates are too high (trans. 2064, 2093).
conceded that rates for in would be higher than rates for in other areas of the region (trans. 2030-2031). She was not familiar with the rates charged to provide parent training and/or supervision (trans. 2043).
reviewed reports, records and programming information (Parent‘s Ex.
Y) and opined that there were ―gaps‖ in the programming (trans. 1998, 2000). She explained that when I went through program book it looks like there‘s a section for 2010 and 2011. There were . . . about 15 or 16 total skills or programs that she was working on.
But of those 16 I believe there were only six or seven that were actually new skills . . . that stood out because for a Hearing Officer‘s child who has the level of deficit that her reports are presenting I would think there would be more teaching going on rather than maintenance. Not that maintenance is not important, but I think that just based on the data that is h[ere] that more time should have been spent teaching rather than maintaining. . . . (trans. 2002-2003).
also observed that the data was not presented in graph format, ―so it‘s impossible at this point to determine whether there are relationships between particular strategies from the field of and the outcome data,‖ as a result she was unable to ―understand the way [ ] learns‖ and determine which strategies would help make progress (trans. 2003). Furthermore, opined that the programming information did not provide a ―procedural description. There‘s no real way an outside practitioner could come in and pick up ‘s book and replicate it because there are very few, if any, precise descriptions of the program‖ (trans. 2004). In addition, she found it ―concerning‖ that programs did not appear to change (trans. 2007). She explained that ―a hallmark‖ of is using data to ―make decisions about moving on or changing course if there is a problem‖ (trans. 2007). Furthermore, data about ―natural environment teaching‖ did not indicate targets or include measures (trans. 2008-2009).
concluded that has not been ―effective‖ with because procedures were not precise and measurements were not accurate—since data was not collected accurately during sessions, then future instruction would not be properly formulated (trans. 2011).
stated on cross-examination that the Department‘s was not adequate for (trans. 2024-2027). The Parent‘s Sur-Rebuttal Case[9]
was recalled and testified that the program worked ―hand in hand‖ with the program to address ‘s academic and daily living
Hearing Officer‘s skills and her (trans. 2121). opined that it was ―necessary for to have a component‖ to her educational program that works ―in conjunction‖ with the program because ―she definitely requires a lot of direct teaching to increase her leisure skills, and also to reinforce some alternative, more appropriate ‖ to the , - and repetitive in which she engages (trans. 2122). In addition, both her and daily living skills are being challenged by the onset of , and she needs to increase ―her functional communication to reduce some of her inappropriate ‖ (trans. 2122).
testified that she had reviewed Parent‘s Ex. Y and concluded that date collection reflected therein needed to be ―looked at in tandem‖ with program in order to formulate the ―entire picture of performance‖ (trans. 2122-2123). In order to assess book, one must not look at the work in ―isolation‖ but must understand the ―scope of the other issues that surround‖ education, particularly ― , ‖ (trans. 2123). explained that without knowing the scope and of throughout the day, and the need to implement her plan throughout the day, ―it‘s hard to get a whole picture of her learning‖ (trans. 2123-2124).
acknowledged the importance of collecting data on programs. Such data assists in determining a program‘s effectiveness for her and guiding changes in programs (trans. 2124). She opined that the format of data collection used by personnel was used in and acceptable within the / field (trans. 2125-2126). She observed that the data showed that there was both carryover and maintenance of many of the goals that were worked on at . As a result, collecting ―probe data‖ (as personnel did) was an appropriate and useable method of data collection (trans. 2127). ―Probe data‖ involves ―collecting data on the first trial or the first instance, rather than every discrete instance‖ (trans. 2133). This type of data collection is often used when working on maintaining skills in order to determine whether the student continues to have the ability to perform a particular skill (trans. 2133-2134).
offered the opportunity to present additional rebuttal witnesses after these final parent‘s witnesses testified (trans. 2222).
Hearing Officer‘s
Maintenance of skills is important for because she had with both generalization (―being able to perform skills from setting-to-setting, person-to-person) and ―durability over time‖ (trans. 2127-2128). For example, she has performing skills even in school when she is working with a different person (trans. 2128). ―requires a very high ratio‖ of programs involving ―previously acquired skills, interspersed in with‖ programs involving skill acquisition (trans. 2142). When is confronted with new programming, she does not ―feel that she‘s successful‖ and manifests her ―very ‖ (trans. 2142). As a result, ―a great deal of maintenance‖ is ―intersperse[d]‖ while introducing and working on new skills in order to to ―feel successful‖ and ―mediate and alleviate‖ some of the (trans. 2143; see also 2158). opined that ‘s programming had an ―appropriate balance‖ of maintenance and acquisition programming for (trans. 2158).
Anecdotal data is another acceptable method of data collection within (trans. 2129). Data collection methods ―vary greatly‖ when s are engaged in natural environment teaching with students (trans. 2131). explained that the effectiveness of data collection in a program book should not be assessed without an understanding of the student because without ―knowing the student,‖ a does not understand why specific programs were selected for that student (trans. 2161).
stated that a ―graphing piece‖ in the program book (Parent‘s Ex. Y) would have been ―optimal‖ to allow for a ― analysis‖ of the data collected and that some of the program descriptions could have been ―more specific‖ (trans. 21452146). However, data on maintenance programs is ―very often‖ less specific than data on skill acquisition programs because ―the whole purpose of maintenance programs is to maintain and generalize skills that were previously acquired‖ (trans. 2156).
, the of at the for (― ‖), testified that she oversaw accounting at the (trans. 2165). She stated that provides , and with master‘s level and master‘s level non- (for roles) and / with bachelor‘s degrees and additional in- training (trans. 2166-2167). As of January 10, 2010, the rate charged by for a bachelor‘s level with additional intraining is $ per 30 minute weekday session ($ per hour; with a weekend rate
Hearing Officer‘s of $ per hour)(trans. 2167). The rate for a master‘s level is $ per 30 minute weekday session ($ per hour; with a weekend rate of $ per hour)(trans. 2168). Prior to January 10, 2010, the rate charged by for a bachelor‘s level with additional in- training was $ per 30 minute session ($ per hour)(trans. 2170). The rate for a master‘s level was $ per 30 minute session ($ per hour)(trans. 2171). The rates were increased ―to make [ ] more competitive with other city ‖ (trans. 2171).
testified that she had doctoral degree in special education, with emphasis in applied , and was a certified general and and a licensed (trans. 2177). She has been a since 2001. has consulted with school districts in , and and has programs for students (trans. 2178, 2187).
explained the differences in data collection methodologies used by recognized schools of (trans. 2180-2184). Some collect data on every trial; some collect data at a less intense rate (such as one time per week). Some use graphing; other do not. Furthermore, data collection might be different based upon the type of work a is doing with a student—more data would be taken during skill acquisition, and ―just‖ probe data would be taken during maintenance work. In the event that the data shows that skills are maintained at about 80 percent, such data is not graphed (trans. 2184, 2205-2207). In addition, specific data might not be taken when working on ADL skills (trans. 2185). noted that personnel, for example, do not collect or graph data on maintenance programs (trans. 2191, 2211).
has not provided services to but has observed her at and while working with personnel (trans. 2186). She stated that she observed at because she would be reviewing data on and ―wanted to see how they were actually interacting with her‖ and ―didn‘t want to just rely on the date review‖ (trans. 2207). She would not have ―felt comfortable‖ testifying or rendering an opinion about without having observed her (trans. 2220). reviewed the program book and observed that data is collected in order to determine whether a child is progressing, and if not, make changes in programming (trans. 2188; Parent‘s Ex. Y). stated that the program book included ―multiple components‖ of program data
Hearing Officer‘s and that she was able to discern the work was doing with —including natural environment teaching, maintenance programs, social skills, ADL, skill acquisition and parent training (trans. 2188-2189). In addition, there is collaboration between and personnel, particularly with respect to responses to problems, and carryover with reading and handwriting activities (trans. 2190, 2193-94).
The program book indicates that during 29% of her sessions at , engaged in an of ― or some type of minor assaultive ‖ (trans. 2190). noted that engaged in ―more significant‖ and at (trans. 2190). attributed this difference to the greater demands for skill
acquisition placed on at (trans. 2191). opined that the program book reflected data collection that was appropriate and useable and from which one could determine whether or not was making progress (trans. 2194).
observed Mr. providing to and concluded that he demonstrated ―excellent‖ skills working with and worked ―very effective[ly]‖ with her (trans. 2195, 2197). He insisted that in full sentences; was ―compliant‖ with his instructions (trans. 2195). During the session, completed handwriting tasks and engaged in receptive and expressive communication activities. completed the communication activities with an % accuracy rate (trans. 2195-2196). Mr. ―got [ ] to do a lot of work‖ during the session ―and she never tried to get out of it‖ (trans. 2197). Mr. explained to the strategies he used to redirect when she became . ―definitely responded well to the at (trans. 2198).
also observed at and concluded that it was ―an appropriate setting for her‖ because were employing a variety of strategies to manage her and adapting her treatment plan to respond to her changing and needs (trans. 2197-2198). did ―more work‖ during the session observed at Hearing Officer‘s than she did during the session at because engaged in more ―significant ‖ at that at (trans. 2198).
stated that various factors enter into setting rates for services. Such factors can include years of experience as a and abilities in working with children with and (trans. 2179-2180). testified that she was familiar with the range of rates charged by s in the area (trans. 2199). charge up to $ per hour (trans. 2199). ,a with a doctoral degree, charges $ per hour. The ―midrange‖ for with masters‘ degrees is ―about‖ $ or $ per hour (trans. 2200).
Findings of Fact and Decision
A board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents‘ claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents‘ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).
I. The Appropriateness of the School District‘s Program for The central purposes of the IDEA is to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-
121. A free appropriate public education includes special education and related services Hearing Officer‘s designed to meet the student‘s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982). While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06-121. If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student‘s right to a free appropriate public education; (2) ―significantly impeded the parents‘ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education‖ to the student; or (3) ―caused a deprivation of educational benefits.‖ 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. The School District bears the burden of demonstrating the appropriateness of the program recommended by its CSE.
A recommended special educational program must be reasonably calculated to allow the child to receive an educational benefit and be the least restrictive environment for the child. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is ―‘likely to produce progress, not ion‖ and that affords the child the opportunity for more than ―mere ‗trivial advancement‘‖—in short, likely to provide some ―‘meaningful‘‖ benefit. Application of a Child with a Disability, Appeal No. 06-121 quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997)]. A school district thus satisfies this standard ―by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.‖ Rowley, 458 U.S. at 203. However, the ―IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.‖ Walczak v. Florida Union Free School District, 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S.
Hearing Officer‘s at 189. The statute ensures an ―appropriate‖ education, ―not one that provides everything that might be thought desirable by loving parents.‖ Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]).
An appropriate educational program ―begins with an IEP which accurately reflects the results of evaluations to identify the student‘s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.‖ Application of a Child with a Disability, Appeal No. 07-010. The IEP prepared for does not provide sufficient special education services to address her identified extreme special educational needs. Specifically, the IEP sets forth: (1) a program that is inadequate; (2) a that bears no relation to and ; and (3) an absence of services tailored to needs for natural environment teaching and generalization of skills. Furthermore, the proposed placement at , where the defective IEP was to be implemented, was inappropriate for .
The program is inadequate to address unique and identified special educational needs. al challenges that are both - and and impact her learning. These include - , and ; her towards and other include , , pinching, , , , over and class materials. There are periods of time when will have to per day during which she is her and to involving . described these as ―intense‖ and fluctuating in frequency and duration—sometimes consuming large portions of the school day. Sometimes gives indications that she is about to have a al episode by her . Other times, ―she goes from to ‖—from engaging productively in an activity to over her ,― ‖ at a to or , a , and her into a –all within a two second time frame. also by and up and down.
is also extremely distractible and requires constant prompting and reinforcement to participate in any learning-related activity—as was observed by the Department‘s CSE personnel in preparation for the May IEP meeting. During this Hearing Officer‘s observation, worked one on one with an and ― ‖ and ―each time she was and by the .‖ constant -to- , and prompting from the throughout the observation. The observer noted that ― were characterized by , and on the .‖ Every witness who has worked with unequivocally and credibly stated, based upon their experiences with and their educational expertise, that more than one-to-one support to address her and in order for her to learn.
also manifests significant cognitive and communication delays requiring repetition and reinforcement of material and development of skills. speaks in phrases of no more than three words and is functioning at a - to level in reading and math. The testing conducted by Ms. , the Department‘s witness, revealed the extent of delays across domains: cognition, academic functioning, communication, socialization, and adaptive .
The Department argues that the program recommended by the CSE was a ― enriched program, and controlled environment‖ that would ―fit perfectly to what [ ‘s] needs are to add the extra support to those areas of weakness‖ (DOE Written Summation, at p. 6). The program as described on the IEP included al ―controls‖ such as a one-to-one . However, such a program was grossly inadequate to address ‘s educational needs and to ensure her and the of her classmates and . At the May CSE meeting, the model (with a one-to-one ) was opposed by all the individuals who had worked with . The parent and personnel explained that learns only with one-to-one instruction and has required the and support of up to five with training in . ―tunes out‖ in a group setting and does not attend to instruction.
The IEP states that ― with instruction and requires additional support‖ and ―will be addressed programmatically, with a one to one and the attached .‖ The IEP is silent on the meaning of ―addressed programmatically‖— this silence is of no benefit to . It constitutes the equivalent of a ―blank‖ on the IEP to be filled in by some unidentified individual at some point in time. The identifies the following strategies to reduce : redirection and refocusing by the , ―choose strategies of preferred activities,‖ ―premack principles of Hearing Officer‘s
‗first then,‘‖ teaching alternate methods of attention getting and ―teaching to wait for access.‖ These strategies are inadequate and would not result in being available for learning and would not ensure her nor the of her classmates and . The CSE was on clear notice of extreme , the educational implications of those , and the strategies personnel used to address those . The witnesses who worked with described at the CSE meeting the profile of she manifests. Ms. testified that personnel explained and her need for oneto-one instruction and additional al support. Mr. testified that the ―team‖ members had reports available to then prior to the CSE meeting and that these reports detailed and functioning levels. Even the Department‘s own expert witness, , stated that this was inappropriate. The members of the CSE failed to accept the severity and of .
As a result, the IEP (with the ) is inappropriate because it does not include sufficient support to ensure her and the of her classmates and her . See Application of a Child with a Disability, Appeal No. 10-039 (district failed to offer FAPE because the recommended program did not ―provide the level of individual support required to address the student‘s distractible and attention needs‖).
Furthermore, significant cognitive and communication delays require repetition and reinforcement of material and consistent work on reviewing and maintaining previously learned skills. cognitive and her require that learned material and acquired skills be generalized, practiced and reinforced in multiple environments—these skills are useless if she can implement them only at school and is unable to demonstrate them at and in the . At the May CSE meeting, all the who had worked with stressed, based upon their educational expertise and experiences with , that needed -school services. Mr. noted in his testimony that the CSE rejected -based services for because she had made ―significant progress‖ at and with -based services. This ―progress‖ is a basis for recognizing that the combination of and -based services is appropriate for and that this combination should be continued, rather than ―cut off.‖ Since the IEP does Hearing Officer‘s not include necessary after-school services for , the program offered by the Department is inappropriate for her.
While the IDEA does not require that the child‘s IEP list a particular school, the school district is required to assign the child to a school at which the child‘s IEP mandates can be satisfied and the child‘s educational needs met. M.H. v. New York City Department of Education, 712 F. Supp. 125, 162-164 (S.D.N.Y. 2010). The DOE argues that it is not required to permit the parents to participate in the placement determination. Rather, the Department argues, it is required only to place a student in a school which ―could satisfy the IEP requirements‖ and was ―appropriate‖ (DOE Written Summation, at pp. 8-9). Placement at would not have been appropriate for . First, and foremost, there is no realistic explanation of how would address extreme challenges and ensure her and the of her classmates and . According the testimony of personnel from , the school does not include students with as extreme as and does not have experience in addressing the needs of these types of students. Ms. stated that none of the students in her classes were self- and . Ms. denied that there were students in the classes who were ― in any way.‖ Ms. stated that she had not worked ―recently‖ with a child who was both self- and . Ms. also stated that she does not use holds to a student. She observed that if a student were ―that ‖ that he or she needed to be , then he or she ―probably would not be in . . . this setting‖ (trans. 1208). Neither she nor the in the class have had to hold a student down in the class during the past two years. Ms. also stated that she does not use holds to a student. She observed that if a student were ―that ‖ that he or she needed to be , then he or she ―probably would not be in . . . this setting‖ (trans. 1208). Neither she nor the in the class have had to hold a student down in the class during the past two years.
Ms. stated that the in the class would have implemented and would have addressed - and by removing her from the classroom, trying to stop the (with no mention of how they would attempt to do so), redirecting (again no mention of how they would attempt to Hearing Officer‘s do so), or giving a ―time out‖ (which was not provided for in her and would serve only to accomplish and reinforce goals of avoiding doing work).[11] Ms. , the classroom , labored under the false beliefs that would ―keep her to ‖ if she were observed at all times and kept busy with an activity and that watching other students ―wait‖ would encourage to ―wait.‖ These are two useful educational strategies—however, they would be useless strategies with . She despite active educational engagement with and has no interest (due to her ) in and modeling the of other .
The Department attempts to demonstrate that needs could be addressed at using ―after-the-fact testimony‖ of what the classroom , Ms. , would have done had attended her class. Ms. testimony—all accurate, and by all accounts a wonderful program by talented and conscientious ; but this program still could not address needs and . The testimony as to what Ms. would have done is irrelevant—―[t]he only information the parents can rely upon as to determining whether the proposed program is appropriate for their child is the IEP document itself.‖ The focus of the inquiry is on what the IEP ―‘actually offered‘‖ and not on what the school district ―‘could have provided it had been so inclined.‘‖ R.E. v. New York City Department of Education, 10-Civ-3176 at pp. 29-30 (S.D.N.Y. Mar. 15, 2011).
The above argument is water under the bridge in this case. educational needs could not have been addressed at even with Ms. efforts. For example, the -school-wide plan and the school‘s emotional literacy program would be inaccessible and totally meaningless to given her cognitive, communicative and social deficits.
would be unable to engage in any of the work in Ms. class. She would receive, according to Ms. , only two 45 minute periods per day of one-to-one ―work‖ with Ms. or a . would have classes in wood shop, science lab,
Hearing Officer‘s social studies, computer lab and art. She would be incapable of understanding the classwork. The content of the academic and ―elective‖ instruction would be meaningless to . For example, ―states of matter‖ (the science class the parent observed) bear no relationship to anything either can understand or needs to work on for her life. would be incapable of engaging in the independent work in the class. would be incapable of working in a group. would learn nothing in the art program. In short, the program at would not provide with accessible opportunities for learning.
Even Ms. admitted that none of the students in her class had even 50 shortterm objectives on their IEPs; had over 120 short-term objectives on the IEP the CSE created for her (trans. 1224). In addition, Ms. was unfamiliar with ―learn units‖—the unit of measurement for all goals and objectives (trans. 1153, 1157).
In any event, how could Department personnel responsible for site selection make an appropriate placement recommendation for when: (1) such personnel did not have a copy of IEP and (2) the information they had on the referral form was inaccurate?
The Department disavows any ―predetermination‖ of the CSE‘s recommendations for because the CSE meeting lasted for over three hours and, as a result, all participants must had had ―a meaningful opportunity to participate‖ (DOE Written Submission, at pp. 7-8). ―Quantity‖ time is not necessary ―quality‖ time. The real question is: Why would otherwise knowledgeable, intelligent and conscientious educators (such as the DOE educators present at the CSE meeting) recommend such a program for ? The evidence permits an inference that they did so because a program was the only program the DOE had available for children of ‘s age with . This is the ―predetermination‖—there was no need for ―agreements‖ to be made among Department prior to the CSE meeting and without the parents‘ input—―everybody knows‖ that ― student = .‖ Similarly, since the CSE minutes reflect (and the testimony confirms) that -school services were not on the table, it can reasonably be Hearing Officer‘s inferred that the Department‘s participants at the CSE meeting came into the room knowing that IEP would not include such services.
I need not reach the question of parental involvement in the placement process because I have found the IEP insufficient, the recommended program inappropriate and the Department‘s proposed placement wholly inadequate to address special educational needs and to ensure her and the of her and classmates.
The evidence presented at the hearing establishes that the Department did not offer a free appropriate public education for the 2010-2011 school year. As a result, the parents prevail with respect to the first prong of the Burlington/Carter analysis.
II. The Appropriateness of and the -School
The parents bear the burden of proof concerning the appropriateness of and the after-school program for . See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2nd Cir. 2006), cert. denied, 128
S. Ct. (2007). To meet this burden, the parents must show that the educational services provided at and in the after-school program addressed 's identified special education needs. See G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:
No one factor is necessarily dispositive in determining whether parents‘ unilateral placement is ―reasonably calculated to enable the child to receive education benefits.‖ Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child‘s individual needs . . . . To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child‘s potential. They need only demonstrate that the placement provides ―educational instruction specially designed to meet the unique needs of a Hearing Officer‘s handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.‖ Frank G., 459 F. 3d at 364 (emphasis added).
can require the of up to to manage her . provides with this level of support. There are in classroom. If needs are engaging of those , then there is a to the other students. addressed these by using functional communication cards to teach ―some functional , to effectively terminate and give her opportunities for appropriate contingent escape from work,‖ with phrases such as ―I don‘t want to,‖ ―I‘m done‖ and ―it‘s too hard.‖ also taught through ― ‖ how to gain access to desired things without using and how to wait—with techniques such as working with her to follow through with one task before gaining access to the reinforcement item. also incorporated opportunities for choice in academics—permitting , for example, to choose between reading activities and identifying numbers. Reinforcement for is given at 60 second intervals—with puzzle pieces that add up to the reinforcement item or tokens (trans. 1543-1545).
personnel address ‘s needs for one-to-one instruction in the areas of communication skills, academic skills, social skills, self-management, ADL and leisure skills. also provides with and and occupational in a manner that is integrated to permit carryover of skills, sensory strategies and support, and fine motor work and motor planning strategies to the classroom.
has made slow but discernable progress in line with her extreme al difficulties, communication deficits and cognitive functioning. She has made improvements in ADL skills and communication skills. She has learned new phrases and engages in more spontaneous . She has learned to sit with a group of students for a brief period with one-to-one supervision to prevent her from and her . In reading, she has started to add comprehension to her sight word vocabulary. She can follow the daily routines of the class and has reduced her rates of (but her have increased). Hearing Officer‘s
The Department argues that the combined / school program is not appropriate for because it has ―caused [her] to in the and frequency in her ‖ (DOE Written Summation, at p. 16; see also p. 17). The Department highlights ― [ion]‖ to 30 instances per day of significant requiring to (DOE Written Summation, at pp. 19-20). However, Ms. , the Department‘s , found that had made improvements in her functioning, most specifically in the area of activities of daily living. To point to one area of as the basis of coloring a program as ―inappropriate‖ is wrong on the law and disingenuous on the facts—it ignores both the areas of gain, areas of maintenance of skills (a challenge for students) and fact that the Department (even though it had knowledge of such ― ‖) failed to conduct an of and composed a deficient for her.
Furthermore, argues the Department, none of related services recommendations were met at and, as a result of this deficiency, could not be appropriate for (DOE Written Summation, at pp. 17-18). There is no requirement that a placement selected by the parent meet every single special education need or provide every single education service a child might require. does address needs in order to enable her to benefit from instruction, particularly her ―difficulties regulating her senses and ‖ which ―inhibited her ability to participate in traditional forms of classroom learning.‖ See A.D. v. Board of Education, 690 F. Supp. 2d 193, 210-211 (S.D.N.Y. 2010).
The Department contends that the program is inappropriate for because it is ―unduly restrictive‖ (DOE Written Summation, at p. 20). It is a restrictive program—but not for because she requires this intense level of one-to-one instruction to address her deficits, maintain the skills she has learned, practice skills learned at in the natural environments of and , and work on ADL skills, not all of which can be worked on in a school setting. Each of the witnesses who has worked with testified credibly, and based upon their educational expertise, that are so that she needs one-to-one instruction and systematic carryover and practice of skills at and in the . needs to Hearing Officer‘s generalize the skills she has learned at and work on her that interfere with her becoming part of the .
In addition, the Department asserts that the parents did not present required ―objective evidence‖ that made progress through her work with . The Department contends that there is no evidence of goals at nor of progress towards any goals nor of data with respect to generalization of skills and socialization (DOE Written Summation, at p. 21). simply did not understand the depth, and an unpredictable nature of .[12] The on data were put to rest by extensive testimony explaining the nature of the programs personnel worked on with —maintenance programs and programs directed at activities of daily living—and the extent of the teaching (and received) in ―natural environments‖ (see Petitioners‘ Post-Hearing Brief at p. 32).
The parents also established need for and school. special educational needs require this for the same reasons that she requires the after-school . Given her cognitive and and - disorder, she needs this additional to develop, practice, and generalize important skills to function in society with some degree of self-sufficiency.[13]
It is important to remember that the ―special‖ in special education means precisely that—special. In other words, ―specialized instruction . . . to meet the unique needs of a child with a disability.‖ 20 U.S.C. §1401(25). The evidence demonstrates that the program crafted by the parent meets this definition. has made progress while enrolled at and receiving the -school services.
Hearing Officer‘s
Considering the ―totality of the circumstances‖ as required by the Second Circuit in Frank G., the evidence supports a finding that the program at and the after-school services were appropriate for .
III. Equitable Considerations
With respect to the third Burlington criterion, whether equitable considerations support the parents‘ claims, the evidence establishes that the parents cooperated with the CSE by, over the years, enrolling in the Department‘s programs in , facilitating participation in the CSE‘s evaluation process, attending CSE meetings, communicating with School District personnel, and visiting the placement at . In fact, as Ms. pointed out, her evaluation of could not have been conducted without the parent‘s assistance during that testing. At the CSE meeting, both the parents and the educators who worked with were open and forthcoming with School District personnel with respect to and need for one-toone instruction.
The Department contends that the parents had no intention of availing themselves of a public school placement for (DOE Written Summation, at pp. 25-26). The Department does not cite a shred of evidence to support this contention—because there is none. The Department put forth the recommendation it had available for students of age—a . It was this to which the parents objected—not to ―public schools.‖
The Department argues that any reimbursement be reduced because the charges are excessive (DOE Written Summation, at pp. 26-27). The extensive testimony by and convincing demonstrates the appropriateness of the program for and the rates charged by personnel. Even conceded that rates for services provided in would be higher than rates charged elsewhere in the greater area.
There is no test limiting the factors that may be considered by a hearing officer on ―prong III.‖ In thinking about the equities in this particular proceeding, I should look to the work the parents have done and are doing with and in creating a special education program for her that addresses the range of her unique and needs— ranging from academic skills, to activities of daily living, to maintenance.
Hearing Officer‘s
Therefore, for all the above reasons, it is ordered that:
1. The Department of Education shall reimburse the parents for the tuition they have paid to for enrollment for the period from July 1, 2010 through and including June 30, 2011. The amount of reimbursement shall not exceed $ and shall be paid by the Department within fifteen business days of receipt from the parents of proof of their payments to .
2. The Department of Education shall reimburse the parents for the following services provided to during the period from July 1, 2010 to and including June 30, 2011: up to 20 hours per week of and up to three hours per month of parent training (exclusive of all work performed on weekends and holidays) at hourly rates not to exceed $ for Mr. ,$ for Ms. and $ for Ms. ; and three hours per week of and at an hourly rate of $ . Reimbursement shall be paid by the Department within fifteen business days Hearing Officer‘s of receipt from the parent of proof of payments to the . Dated: April 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.ht
Hearing Officer‘s
DOCUMENTATION ENTERED INTO RECORD
PARENT DESCRIPTION
A Demand for Due Process and Fax Confirmation, 6/30/10, 11 pages B SRO Decision, 1/16/09, 5 pages C Findings of Fact & Decision (corrected) By IHO .,
10/15/08, 49 pages D Amended Demand for Due Process and Email Confirmation, 8/2/10, 13 pages E Pendency Brief, 8/6/10, 34 pages F NYC DOE Answer By: , , 7/2/10, 5 pages H ,
By: , , , , ,
9/27/10, 12 pages I Parent Trainer With , ( ), By: , , , 8/16/10, 2 pages J Progress Report, The ,
By: . , / , 8/6/10, 3 pages K Progress Update, The ,
By: , , - 8/3/10, 2 pages L Education Progress Report, The ,
By , , 8/2010, 5 pages M Letter to CSE, Region w/ Fax Confirmation, 6/17/10, 5 pages N NYC DOE FNR w/envelope, 6/10/10, 2 pages O Special Education Service Delivery Report, ( ) 4/30/10, 5/20/09, 4/30/08, 3 pages Y Subpoenaed Documents, , 2010-2011, 299 pages Z Provider's Affidavit of of , The , 2010-2011, 1 page AA Related Service Status Information for School-Age Students in Public
Hearing Officer‘s
School, 11/16/10, 1 page BB District Placement Office Referral Form, 6/4/10, 2 pages CC Assignments, undated, 7 pages
DEPARTMENT OF EDUCATION DESCRIPTION
1 IEP for , 5/26/10, 31 pages 2 for , 5/24/10, 8 pages 3 Due Process Response - Amended, 9/29/10, 3 pages 4 Rationale for IEP, 5/26/10, 3 pages 5 Final Notice of Recommendation- PS , 6/10/10, 1 page 6 Social History Update, 5/14/10, 4 pages 7 Classroom Observation by , 1/3/10, 2 pages 8 Observation Report by , 5/6/09, 3 pages 9 Report by , 4/27/10, 9 pages 10 Score Report, 4/27/10, 1 page 11 Report, 7/14/08, 22 pages 12 Progress Report, 5/6/10, 4 pages 13 Progress Report, 12/20/09, 4 pages 14 Progress Report, 4/30/10, 2 pages 15 Report from , 12/21/09 5 pages 16 Progress Update, 4/30/10, 2 pages 17 Progress Report, 12/21/09, 2 pages 1 18 Progress Report, 4/30/10, 2 pages 19 Education Progress Report, 4/22/10, 4 pages 20 and Progress Report, 12/14/09, 4 pages 21 and Progress Report, 5/10/10, 4 pages
Footnotes
[1] This Order was appealed to the State Review Officer. The appeal was dismissed. Application of the New York City Department of Education, Appeal No. 10-107.
[2] There is some inadvertent duplication in the exhibits due to the voluminous nature of the exhibits and the number of hearing dates.
[3] During the hearing, references were made to the possibility of a placement for . Such a placement is not properly before this hearing officer; as a result this decision does not address a as an appropriate placement for .
[7] also a word. are not addressing this at this time because ―the other are more pressing‖ (trans. 1780-1781).
[8] Ms. was the individual identified by the Department of Education as the witness who would testify with respect to the placement process and determination for .
[9] The parent had not rested her case at the time testified. Since the nature of the parent‘s remaining witnesses were more in the nature of a rebuttal of testimony than testimony on a ―direct‖ case, I have labeled this portion of the statement of facts as a ―sur-rebuttal.‖ For the purposes of determining the weight of this testimony or its role in fact-finding, the label is irrelevant. The testimony of each of these witnesses will be treated individually based upon its relevance, usefulness and credibility. The Department was
[10] stated that the demands for skill acquisition placed on at were ― for a student in a full day program‖ because school were implementing a plan to reduce that involved giving opportunities to how she felt and to make choices about activities (trans. 2191-2192). is also given the opportunity to request a fifteen minute break for (trans. 2192-2193).
[11] Ms. also provided the conclusory testimony that since all the children in Ms. class were ―on the and had , would ―fit‖ in the class. This conclusion was not based upon consideration of individual special educational needs nor of the individual special educational needs of the students in that class. As such, this testimony must be disregarded.
[12] I am unpersuaded by the Department‘s arguments that the are not qualified to because they are not (DOE Written Summation, at pp. 22-23). There is no requirement that working with children with have this particular credential. Furthermore, the Department challenges the provision of services for on the weekends (DOE Written Summation, at pp. 24-25). The parents are not seeking reimbursement for any services provided to on the weekends.
[13] was not received and school for the 2010-2011 school year. As a result, these claims set forth in the hearing request and amended hearing request for the 2010-2011 school year are dismissed.