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: August 7, 2012

September 24, 2012

October 15, 2012

Actual Record Closed Date: October 22, 2012

Hearing Officer: Laura Fieber, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 7, 2012

For the NYC, DOE Representative — DOE

Attorney — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 24,

2012

For the NYC, DOE Representative — DOE

Attorney — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 15, 2012

For the NYC, DOE Representative — DOE

Attorney — Parents

Parents

Parents

Special Education Teacher — Parents

Speech Therapist — Parents

On June 27, 2012 the parent of Elefterios A. (“Student”) requested an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 United States Code Section 1415 (f)(1). I received an appointment as Impartial Hearing Officer (IHO) the following day. A pendency hearing took place on August 7, 2012. A prehearing conference took place on September 24, 2012. And a hearing on the merits of the case took place on October 15, 2012. A list of persons who attended the hearing(s) and documents received in evidence are attached to the record. Timelines for rendering a decision were extended by the parties.

I. Pendency Order

The parent and the Department of Education (DOE) agreed that the Individualized Education Program (IEP), developed on March 6, 2012 by the Committee on Preschool Special Education (CPSE), identified the Student’s pendency placement.

Therefore, from June 27, 2012, the date of the parent’s impartial hearing request, until such time as the issues raised in the amended due process complaint are resolved by final order, or the parties agree otherwise, the DOE was ordered to fund either directly or through the issuance of a related services authorization (RSA) the following as his pendency placement:

1. A twelve-month program in a full day special 8:1:2 class;

2. Related services of

a. therapy for thirty minutes one time per week;

b. OT for thirty minutes two times per week;

c. Home-based therapy for forty-five minutes two times per week;

d. Home-based SEIT services for two hours per day (up to 10 hours per week).

II. Background

This case concerns a who currently attends ), a New York State-approved private school (NPS). When the Committee on Special Education (CSE) met on March 29, 2012 to determine the Student’s school-aged program, it classified him as autistic, and advised the parents that it would recommend a New York State-approved non-public school (NPS) placement and an after-school program of ten hours per week of special education itinerant teacher (SEIT) services and two forty-five minute sessions of speech and language therapy. The CSE deferred the case to the Central Based Support Team (CBST) for placement. The parent learned that the CBST had rejected the case and remanded it to the CSE for a public school program. The resultant IEP recommended a twelve-month program in a special therapy for thirty minutes two times per week; ( ) for thirty minutes two times per week; and ( ) for thirty minutes two times per week. Parent’s Exhibit G. It eliminated the after-school services of ten hours of and two forty-five minute sessions of therapy that the Student’s preschool IEP had recommended. The parents brought this action to challenge the appropriateness of this IEP. Parent’s Exhibit A. Prior to the hearing, the DOE offered the parent a P-1 (Nickerson Letter), which authorized his placement in an NPS. The parents selected HASC (Hebrew Academy for Special Children). This left as the remaining issue to be addressed by this impartial hearing, the continuation of the Student’s after-school program.

III. Merits of the Case DOE’s Position

The DOE conceded that it failed to offer the student a free appropriate public education for the 2012-2013 school year. Tr. 27. Dr. stated that this concession resulted in the issuance of the Nickerson letter. She called no witnesses.

As for the Student’s placement at , the DOE argued that there was no evidence that its kindergarten program could not meet his needs. Therefore, it should be allowed time to demonstrate whether he needs the additional services. Parent’s Position

The parents argued that the Carter/Burlington analysis does not apply in this case because they did not unilaterally placed the Student in the after-school program for which tuition reimbursement is the remedy. Rather they seek to continue the SEIT and speech and language therapy, which the DOE had previously recommended, and which he is receiving pursuant to the pendency order.

The parents further argued that the CSE did not include the parent in the development of the IEP provided to them, which changed the deferral to CBST and afterschool program to a placement in a public school class with no after-school program. Moreover, the after-school program of ten hours of SEIT were necessary to help the Student acquire and generalize new skills, while Prompts for Reconstruction Oral Musculature for Phonemic Targets (PROMPT), the focus of the therapy, addressed his , a disability distinct from his autism, in order to facilitate his language development.

, a special education teacher and a Board Certified Behavior Analyst, testified that she has known the Student since . She currently provides him with six hours per week of applied behavioral analysis (ABA) while , an analyst and licensed special education teacher, provides four.

Ms. first met the Student in when he was 3 ½ years. Since then he now smiles and shows affect, which indicates huge progress. Tr. 47-48. In a structured setting he understands and has a pretty good receptive vocabulary in terms of things around him, like functional objects. He understands simple language and directions, and is beginning to use word approximations and some simple-taught sentences to communicate things that he wants. He is now beginning to explore his environment, and manipulate some toys appropriately. However, he requires a lot of structure to stay on task and attend, although he also exhibits many self-stimulatory behaviors.

The Student currently attends , which provides more structured training and rewards than his previous placement in an class at . Tr. 69-70 Although he needs to be in a school setting in order to learn to be around other children, he still requires an intensive level of instruction to acquire new skills. Because his school cannot do 1:1 all day he needs to get services at home for repetition and generalization.

To determine what to work on they start with his IEP and then expand it though assessments such as the ), Assessment of Basic Language and Learning Skills (ABLLS) and Verbal Behavior Milestone Assessment and Placement Program (VB-MAPP). The shows that at , his tests range between months.

Regarding Activities for Daily Living (ADL), he is , but his parents need to assist . 48-51. He engages in a . He requires . To address his ADL needs, they break down . They fade back these prompts daily and systemically. They take data on everything they target, look at them daily and weekly, and then make adjustments according to the trend of the data.

Regarding academics, he has been able to learn some sight words through memorization, which they use to increase his vocabulary and string together to increase the length of his utterances. Tr. 51-52. In math, he can count by rote up to five although it is inconsistent. They work on this by reward and positive reinforcement. They also try to generalize what he is teaching.

Regarding writing, he has poor writing skills, which they are working on. He requires full manual guidance to hold the writing instrument correctly and to hold his page down. Tr. 52-53. They have been successful in getting him to trace simple shapes. He traces one through three consistently, and four through six inconsistently. He still requires some prompts.

Regarding language, they are addressing these needs through requesting, labels, answering questions, and verbal imitation programs. Tr. 53-54. She also works closely with his therapist. Tr. 54. Since he has a lot of articulation issues and difficulties, they target words, especially using the verbal imitation programs, based on her recommendations to increase his . Regarding his behaviors, he needs a highly structured environment to stay engaged. Tr. 54-56. He if not supervised. He has no awareness of danger. When he has difficulty with some skills, he may exhibit a lot of , such as demand. To address this, they simplify the task even further and increase the rate of reinforcement. They also try to prevent the behaviors from occurring and teach him awareness skills.

Further, they work with the Student on play skills by breaking them down into specific steps and rewarding him for each step they want him to do independently. Tr. 57. To help the student generalize the skills he learns to the family and community they work with the mother almost daily where she observes or directly works with the Student. Tr. 58, 66-67. They then give her feedback.

Ms. believes that the Student needs an after-school program because he has a difficult time generalizing from one environment to the other. He also needs to acquire new skills and structure to engage appropriate behaviors. Tr. 59. She sends quarterly reports to the DOE. Parent’s Exhibits E, F. In the annual report, she described how the Student is significantly delayed across all areas of development, especially . She communicates via communication book with his current school re: his current programming, which addresses some of the skills she addresses. Tr. 63-64. In the 3½ years she has worked with him she has seen some generalization between those skills done at home and those done at school when she was shadowing him. Tr. 64-66. The obstacles to generalization include teacher methods and replication, and repetition.

pathologist testified that she has worked with the Student since EI. She is trained in PROMPT (Prompts for Reconstruction Oral Musculature for Phonemic Targets), a treatment approach for children with , which she provides him twice a week for forty-five minutes. Tr. 77-78.

Ms. as a neurological motor-based disorder. Children with have imitation difficulties, and difficulty planning and executing sounds. Some characteristics are imitation disabilities, low phonemic repertoire, inconsistent productions, and slow progress. PROMPT gives tactile and proprioceptive cues to the child to help them produce sounds.

Ms. testified that secondary to his and , the Student also has significant delays in all areas of language . Tr. 75. He has difficulty with generalization in his environment. He has a very difficult time identifying common objects, and language has to be simplified for him in order to follow commands, so novel commands have to be simplified for him. Expressively, he has come a long way secondary to , but he continues to delays . He just recently started communicating via single one-word utterances, approximations to communicate his basic needs to request and to label. So he will request if he wants something to drink, if he wants an activity, or if he wants to play something.

Ms. believes the Student has made nice progress. Tr. 78-80. They are now moving to multisyllabic words and to use them to communicate, and to generalize them to communicate his needs to his family. Generalization was very difficult for him and he tends to regress if a skill is not targeted.

Ms. works with the parents so they know what to expect from him and what they can demand from him. Tr. 80-81. Typically she communicates and coordinates with the speech and language therapist at the school. Tr. 82. This helps them generalize what she is doing and so she can carry over what they are doing into her sessions. She believes it would be difficult for the mother to take over part of the therapy at home.

She believes it is critical for him to get PROMPT therapy to address his Without it he will regress. Tr. 81. She indicated that he has made slow progress in his ability to articulation of some vowels and some consonants since the initiation of this therapy. See Parents’ Exhibit D.

The Mother testified that the Student is a happy child who is proud of himself when he learns, even if it is difficult for him. Tr. 88. He is very and has communicating. She tries to . Tr. 89. He has made a lot of progress from the beginning, but he has a long way to go.

She first realized the Student had a when he was two. She had him evaluated and found out about . At he started receiving services, including twenty hours per week of ABA , , and . At three they met with the CPSE and decided that he would receive his services at home. He then received twenty-five hours per week of . She also enrolled him in pre-school where they used some of the hours for the SEIT to shadow him. After the second year under the CPSE, she decided to enroll him in a special education preschool, , for the 2011-2012 school year. His class ratio was .

At the March 29th IEP meeting, she showed all the reports she received from the therapists since the CSE knew nothing about him except for an evaluation done at the pre-school by a DOE social worker. She was told that the Student needed a class but after they looked at his reports, it was clear that there was nothing in the school system that would meet his needs. They agreed to send him to , an approved NPS. Tr. 93. But the Hawthorne people that the case had to go to the CBST. About a week later, the psychologist told the parents that the CBST had rejected the Student and he would have to recommend a class. He advised her to find out why the case was rejected, but no one ever got back to her. Tr. 97. She received the IEP about a month later that recommended a class without after school services. Tr. 98-101.

The mother believes that the Student requires an because he has a history of regression and difficulty in learning. She cannot do the therapy alone since she is not a professional. Tr. 103.

IV. Findings of Fact and Conclusion of Law

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a free appropriate public education (FAPE) 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) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). 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). 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 Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.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 Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

Upon conceding that the DOE failed to offer the Student a FAPE for the 20122013 school year, the DOE rested its case without calling any witnesses or producing any evidence. It did suggest that HASC might have been sufficient, without an after-school program – to offer the Student an appropriate education. However, the parents have credibly rebutted this through the testimony of the SEIT and therapist. I credit the SEIT and the therapist that the Student, who has considerable delays, has great difficulty generalizing skills from the classroom to the home and other environments; experiences regression when not engaged; needs structure to engage in appropriate behaviors; and requires constant prompting, repetition and an intensive to acquire skills, a level of instruction that would be difficult in a classroom setting. I further credit the speech and language therapist who thoughtfully explained the necessity for the PROMPT therapy, based on the Student’s a disability distinct from Therefore, I find that the evidence supports a finding that the inclusion of these after-school services in the Student’s program is a necessary component of FAPE.

Order

I hereby order that for the 2012-2013 school year the DOE shall directly fund as an after-school component of the Student’s overall program, up to ninety minutes per week of therapy and up to ten hours per week of SEIT services. Dated: November 2, 2012

_____________________

LAURA FIEBER, ESQ

Impartial Hearing Officer

LF;mv

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

Parent’s

Subject Date # Pages

Exhibits

A Impartial Hearing Request June 27, 2012 3

B IEP March 6, 2012 15

C Summary Sheet September 26, 2012 2

Related Service Provider Annual Progress

D January 1, 2012 2

Report – Therapy

E Educational Progress Report January 2, 2012 4

F SEIT Progress Report March 11, 2012 2

G IEP March 29, 2012 9