New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: July 12, 2012

Record Close Date: July 20, 2012

Hearing Officer: Rona Feinberg, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 12, 2012

Parents

Office Manager SAR (via telephone) — Student

SETSS Provider (via telephone) — Student

Speech Therapist (via telephone) — Student

Occupational Therapist (via telephone) — Student

Head of (via telephone) — Student

District Representative — DOE

INTRODUCTION

On July 12, 2012 an impartial hearing was conducted pursuant to the Individuals With Disabilities in Education Act, (“IDEA”) 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, . (“the child”). The hearing commenced at 11:00 a.m. and was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

The child, who is classified as having a , is six years two months old and is parentally placed at , a non-public school. The child receives ten-month Special Education Teacher Support Services (“SETSS”) and related services through an Individualized Education Services Program (“IESP”) that was to be implemented on January 26, 2012. In Due Process Hearing Request notice dated June 6, 2012 the child’s parents requested an impartial hearing. In that request, the parents asked that the child be provided with SETSS, speech therapy and occupational therapy during the summer of 2012 (Parents’ Ex. A).

I was appointed as the Impartial Hearing Officer in this case on June 27, 2012. The compliance date in the case is August 10, 2012.

THE PARENTS’ POSITION

The child’s mother, , appeared at the hearing. Ms. maintained that the child’s IESP mandates five hours a week of SETSS but that due to the availability of the SETSS teacher the child received only three hours a week. Thus, she asked that the child be provided with SETSS over the summer to compensate for the hours that were not provided during the 2011-2012 school year. In addition, the child’s mother asked that the child be provided with and during the summer so that the child would not regress.

THE DEPARTMENT OF EDUCATION’S POSITION

represented the Department of Education at the hearing. Ms. indicated that the Department of Education would provide the child with 16 hours of SETSS over the summer to compensate for the hours missed during the school year (MaldonadoDiedricks: 7-8, 26-27). However, she stated that the child was mandated for only ten months of speech therapy and occupational therapy and that the evidence at the hearing did not support a finding that the child would experience substantial regression if the services were not provided over the summer ( : 63).

THE EVIDENCE AT THE HEARING

The Department of Education’s Case

The Department of Education did not present any witnesses at the hearing. The Parents’ Case is the child’s mother. She explained that the child is parentally placed in a regular class at SAR, a private school in .^[1] provided the child with 38 one-hour

^[2]

sessions of 15-16; Parents’ Ex. B). Ms. was concerned that the child would “fall behind” in first grade, noting that the child’s promotion to first grade had been “questionable” in that , the head of the , felt that the child should be held back ( : 6, 52: : 56 ). Ms. testified that the school was very concerned about the child in that she “did not seem to be grasping any of the letters or number concepts that were being taught” ( 56). Ms. , the child’s , noted that “there were a lot of questions” as to whether the child should move to the first grade, remain in kindergarten for another year or move to an inclusion class ( : 32, 38). However, Ms. testified that when Ms. began to provide the child with one-on-one SETSS help the child began to show progress in reading; Ms. testified that the Ms. was able to “present in such a way with no distractions that the child was able to learn” ( : 56, 58; : 15). Ultimately the school decided to move the child to first grade.

Ms. stated that the child is going to be in a regular first grade class in September and that she is requesting SETSS, speech therapy and occupational therapy over the summer because she is concerned that the child will regress and not be able to succeed in the first grade. She noted that she did not ask for 12 month services at the IESP meeting in January 2012 because the child had been receiving those services as a pre-school student and she did not realize until May or June that the services were now limited to ten months ( 29-30, 50).

Ms. Jacobowitz testified that the child “has a long way to go” ( : 57). She explained that the child could “not afford to regress like other students” over the summer because she is “so far behind” in all of her skills ( : 61-62). Ms. acknowledged that all students regress over the summer and that it takes them time to catch up. However, she believed that since the child already has an “issue” the child was “going to be even more behind” and experience a “double regression” without summer services ( 50-51). Ms. Jacobowitz opined that support over the summer to “firm” up the beginning skills so that the child would relate to the “short A and to the short E and the short O” would “really prepare her for next year” and she stated that a SETSS provider would “absolutely” be able to work with the child on those skills ( : 57-58). While Ms. was familiar only with the child’s SETSS and could not comment on the services, she stated that the child would “benefit from all the support she could get” ( : 61-62).

provided the child with individual speech therapy twice a week for 30 minutes during the 2011-2012 school year ( 38-39). She testified that “according to strict testing guidelines [the child] may not fall within the parameters of what we usually give summer services for,” and that the child’s “scores” would not necessarily reflect a child who she “would normally be pushing so hard for a summer experience.” However she believed that the child would “benefit” and that it was “strongly indicated” that the child should receive summer services ( : 31-32, 34). Ms. explained that “we” had worked “very very, very hard with [the child] on a pretty intense basis to get her to the point that she’s at in order to function in her classroom. Ms. opined that without “adequate support to help [the child] be prepared to move ahead” the child would “move back ten times from where she was at.” She testified that in order to help the child function in a regular academic setting she hoped that the child could get summer services to make sure that she does not regress in terms of reading, writing, literacy and language skills ( : 3233).

Ms. elaborated that the child’s learning issues are such that without summer services, in September “there may be a much greater regression than we had normally” (Salamon: 36). She opined that in her “best clinical judgment” she would anticipate “that regression would happen.” She noted that she does not have data showing regression because up until now the child has had 12 month services (Salamon: 38).

provided the child with individual occupational therapy twice a week for 30 minutes from January 2012 to the end of the school year ( : 42). She testified that she believed the child would benefit from summer services noting that while the child does “eventually” learn what they have been working on, she tends to “forget quickly” (Greenberger: 41-42). For example, even from one session to another the child has needed “extra cues” to remind her of skills she had already learned. Thus, Ms. ’s “fear” is that without summer services in the fall the child will be “farther behind than she was at the end” of the school year ( : 42).

Ms. worked with the child on fine motor skills such as letter recognition and writing letters, which she described. She noted that the child had lines as do other students who receive . By the end of the school year the child was “really getting better” in that she was able to write her name and all of the capital letters in the alphabet ( 4347). However, at times she required “cues” to remember how to write a particular letter (Greenberger: 44). Ms. noted that she has seen the child regress during a school break of a week and that it “could take up to three weeks to get [the child] back to where she needed to be.” Based on that experience she opined that the child would regress as well during a longer break ( : 44-45, 47).

FINDINGS OF FACT AND DECISION

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available to them a (“FAPE”), a free and appropriate education in the least restrictive environment (“LRE”). 20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program. 20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347; Rowley at 181-182; R.E. and M.E. v. N.Y. City Dep’t of Educ., 785 F. Supp. 2d 28 (S.D.N.Y. 2011), appeal pending. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U. S. at 203.

I begin by stating that unless otherwise indicated below, I credit the testimony of the witnesses who appeared at the hearing. This Decision and Order is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record and, for the most part, will not be repeated here.

At the outset, the child’s January 2012 IESP mandated five sessions of SETSS services a week from January 26, 2012 until the end of the 2011-2012 school year. However, during that period Ms. , the SETSS provider, was able to provide only two or three sessions a week for a total of 38 hours. Ms. - and the child’s mother agreed on the record at the hearing that the Department of Education would provide the child with 16 hours of SETSS over the summer through a Department of Education teacher as compensation for the mandated SETSS sessions that were not provided to the child. That agreement is reflected in the record and comports with the evidence and testimony presented at the hearing ( : 15-17: Hearing: 26-27; Parents’ Ex. B).

The parents also requested that the child continue to receive the and services mandated on the January 26, 2012 IESP for the 10 month school year.

Pursuant to State regulations, students "shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression, . . . who, because of their disabilities, exhibit the need for a 12-month special service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression as determined by the committee on special education." 8 NYCRR 200.6[k][1], [k][1][v]. Application of the [ ], Appeal No. 12-022. See Application of the Bd. of Educ., Appeal No. 11-058; Application of a Student with a Disability, Appeal No. 09-088. State regulation defines substantial regression as "a student's inability to maintain developmental levels due to a or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IESP goals and objectives mastered at the end of the previous school year." 8 NYCRR 200.1[aaa]. Application of the [ ], Appeal No. 12-022.^[3]

I find that the evidence and testimony presented at the hearing failed to establish that the child would experience substantial regression over the summer without the provision of speech and language therapy or occupational therapy. In making this determination I note that , the therapist, testified that although she was concerned that the child would regress over the summer since she over school holidays, the child did not fall within the parameters of s student who would be recommended for summer services. She also noted that the child’s “scores” did not fit into the category of those that would require summer services (Salamon: 32-38). Similarly, the testimony of , the child’s also did not establish that the child would experience substantial regression without for her fine motor skills over the summer. While she testified that the child did

20 and 40 school days. As a guideline for determining eligibility for an extended school year program a review period of eight weeks or more would indicate that substantial regression has occurred.

http://www.p12.nysed.gov/specialed/publications/policy/esy/qa2006..ht m Application of the [ ], Appeal No. 12-022 at fn. 7. show regression over school holidays, she stated that with cues the child was able to remember what she learned.

Moreover and most significantly, the child will not be without services over the summer. As noted above, Ms. and the child’s mother agreed on the record that the Department of Education would provide the child with 16 hours of SETSS over the summer. Ms. the head of the , the child’s school, testified that a SETSS teacher would “absolutely” be able to provide the child with the appropriate services over the summer to help prepare the child for the beginning of ( : 57-58). Although Ms. referred specifically to Ms. , there is no reason to conclude that the SETSS teacher provided by the Department of Education would not be able to prevent the child from in her skills over the summer.

Therefore, pursuant to the agreement between the Department of Education and the child’s mother as stated on the record and supported by the evidence, the Department of Education is hereby ORDERED to provide the child with 16 hours of SETSS during the summer to be completed before the beginning of the 2012-2013 school year.

ORDER

In light of the above findings of fact, it is hereby ordered that:

The Department of Education is provide the child with 16 hours of SETSS during the summer to be completed before the beginning of the 2012-2013 school year. Dated: July 26, 2012

______________________________

RONA FEINBERG, ESQ.

Impartial Hearing Officer

RF:dl

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD ON JULY12, 2012

PARENT

A Impartial Hearing Request, 6/6/12, 5 pages B Email from , 7/12/12,^[1] page

DEPARTMENT OF EDUCATION

---

Footnotes

[1] The child’s mother appeared pro-se and at her request the Hearing Officer conducted the direct examination of the witnesses; Ms. Scharf declined the opportunity to ask any questions on her own (Hearing: 31, 39, 41,, 48, 55, 62).

[2] Although the child IESP mandated five sessions a week Ms. was not available to provide five sessions; some weeks she was only able to provide two hours of services. Ms. was to be paid at the enhanced rate of $83.00 per hour pursuant to t P-4 letter but she had not yet been paid. Ms. explained the procedure for payment and provided Ms. with the phone number of a contact at the Department of Education ( : 19- 26).

[3] In February 2006, the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) published a guidance memorandum, dated February 2006, which states the following regarding ESY services: A student is eligible for a twelve-month service or program when the period of review or reteaching required to recoup the skill or knowledge level attained by the end of the prior school year is beyond the time ordinarily reserved for that purpose at the beginning of the school year. The typical period of review or reteaching ranges between

[1] IESP, 1/26/12, 7 pages IMPARTIAL HEARING OFFICER I Summary of Prehearing Conference, 7/9/12, 1 page