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 6, 2012

August 29, 2012

September 12, 2012

Record Close Date: September 20, 2012

Hearing Officer: Daniel M. Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 6, 2012

Parent (via telephone) — Student

District Representative (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 29, 2012

Parents

Family Friend — Student

District Representative — DOE

Supervisor of Physical Therapy (via telephone) — DOE

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

Parents

Psychologist (via telephone) — Student

Director of Student Services, CFN (via telephone) — DOE

INTRODUCTION

On July 3, 2012, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York. Appointment was for Case Number .

Parent filed Impartial Hearing Request, dated 06/29/2012. Parent alleges that in June of 2012, her child was improperly declassified, and physical therapy sessions therefore improperly discontinued, for the 2012-2013 school year. Parent seeks reinstatement of her physical therapy sessions. (Ex A 1 & T 5 & 43)

Student was born through , and then the Department of Education. (“DOE”) Student underwent for the condition. (T 8-9)

On 08/06/2012, a prehearing conference was conducted, by telephone conference.

Individualized Education Plan (“IEP”) indicated the student was to receive physical therapy sessions for the 2011-2012 school year. Parent contends that her child was to receive individual sessions, however, some sessions were del ivered in a group, and integrated into gym class. (T 5-7) Student was to receive three individual physical therapy sessions weekly. (T 39)

At the prehearing conference parent requested an independent evaluation. Parent had already submitted a privately obtained evaluation, which was submitted with the hearing request. (T 12, Ex A 1-2)

Parent stated a concern that she was afraid the DOE would not properly consider any evaluation she obtained, since they may consider it “ ”. (T 15)

Hearing Officer explained to the parent that at this point he was charged with determining the weight of any evaluation. (T 16)

Parties do not disagree that the child suffers from the . Parties dispute its effect upon the child’s education. Hearing officer clarified this issue and advised the parties that presently another evaluation does not appear to be necessary to determine the matter presented by the parent. Additionally, parent's due process complaint notice, does not contain a request for an independent educational evaluation (IEE). (T 17-20, Ex A)

Student is classified as . (Ex 1-1)

DOE representative, at hearing of 09/12/2012, requested an extension of the compliance date, which was granted. Compliance date moved from 09/12/2012 to 10/04/2012. (T 113)

DEPARTMENT OF EDUCATION POSITION

DOE representative, Barbara Horowitz (“BW”) presented the DOE case.

DEPARTMENT OF EDUCATION WITNESS DR. LISA HOPSON

Dr. (“ ”) testified as a supervisor of , stated her educational and professional background, stated that she supervises (physical therapist servicing the student for the 2011-2012 school year), and is familiar with the student. (T 49-50)

continued that the student received three weekly individual sessions of physical therapy for the 2011-2012 school year. (T 50)

continued that she had spoken to Mr. regarding the student, but she had not attended the meeting where the student was declassified. (T 52)

testified as to the student’s goals and need for therapy:

“…I reviewed his annual review plan which is a report that before they make the determination of a mandate or the need for services there's a set of questions and tasks that are gone through with the student to determine if they still need the service…in terms of her school based participation, she scored a in all areas which include her classroom setting, playground, transportation, , transitions meaning going from door of her classroom to the cafeteria, anytime the class is moving that she is able to keep up with her peers and the class, and mealtime and snack. And also just to include when we say playground and recess, that also includes if the class would go on any trips, if she participates and plays. We are looking to see that she's able to participate in everything that her peers would be able to and, if not, to see if PT could support her in doing so. So at this time, felt that she's able to meet all the needs in all areas, a six out of six, and he also went over a few standardized tools…She's able to access all areas as well as her education, and currently she's at grade level and slightly above in different areas.” (T 53-54)

continued that she believed the student does not qualify for physical therapy services in the school, since they follow a school based model, not a medical model. (T 55)

continued her position that services are no longer warranted: “We as school base therapists, we don't give any rehabilitation in terms of surgical procedures. We really are supporting her access to education. And at this time she is really thriving I'm happy to say in physical therapy, and the time that me, Ms. , and , we met in March. She was able to complete all of her exercises independently on her own without even providing instruction…mom did mention although she does the exercises at school, when she's at home she's not as willing to do so. So we want to try to see if we could meet the mom's needs in terms of supporting her for the torticollis although it's not really in our jurisdiction. So I would not want a Board of Ed school base therapist responsible for maintaining her function after a postsurgical torticollis relief. That really should be done by a medically trained physician or physical therapy.” (T 56-57)

In response to the hearing officer’s question, LH described Torticollis: “…a shortening or a decreased range of motion in their neck, so they tend to present with their neck slightly flexed towards the shoulder and looking in the opposite direction.” (T 58)

PARENT POSITION

The parent, (“ ”), presented the parents case.

PARENT WITNESS

(“ ”), psychologist, testified as parent witness. The parent and hearing officer elicited the following information from the witness.

The student continues to have “…structural changes and needs of a physical therapist or some sort of intervention in term so of manual therapy for her problem.” (T 81)

has not seen the student in school. (T 81)

described the student’s condition: “…she's definitely continued to present with changes as a result of this type of problem. What I was writing in my paperwork, that, you know, certain bones seem to be protruding out in terms of muscle weakness, her neck continues to have a limitation, you know, these are progressive things that are happening as she's growing up. And as far as I think you were kind of asking is it should be treated by a physical therapist.” (T 82)

On cross examination the witness stated that the student continues to have field of vision and neck limitations. (T 87-88)

PARENT SUSAN

(“ ”), the student’s mother, testified as to her child’s condition and its impact on school functioning.

reviewed her daughter’s early development regarding the diagnosis of torticollis, and surgery which was conducted at age five. (T 93)

Therapy provided this past year was not “…to the standards that I would have expected…from the three years previous…” (T 94)

Presently her child has “…residual head tilt that doesn’t allow her to look straight on to the board.” (T 95)

“Certainly, , the , is going to affect her ability to track moving teachers, objects, whatever it is that might be involved in the classroom. time.” (T 97)

noted that the family has worked hard in dealing with the child’s condition so that it has not affected her school work. The child has , she is enrolled in yoga and swimming classes, parent stretches her child in the home, and there has been some improvement. (T 98-99)

continued: “…I don't think that by the time it does interfere with her ability to learn at school, I think that'd be too late.” (T 106)

indicated a concern that her daughter may not perform her stretches each day without some sort of schedule. SEM noted that her daughter did not have therapy in the summer, but was enrolled in swimming, which ensured: “…for that hour or so, she was in the water, she had to tread, she had to balance herself, there was some passive stretching going on…” (T 107)

raised a concern that the therapy records included dates for which she believed her child was not in school. (T 108)

asked again to receive an independent evaluation. (T 114)

DOCUMENTS SUBMITTED

Annual Review Plan was submitted as Exhibit 1. Regarding the student, the document reflects:

No limitations;

Regular Classroom Participation;

Full Participation in Playground/Recess, Transportation, , Transitions,

Mealtime/Snack Time;

Academically …functioning above age/grade expectancy levels according to her teacher.

Therefore, she no longer requires the physical therapy…

(Student)…has met al current physical therapy IEP goals. (Ex 1)

Evaluation, conducted by , was submitted as Exhibit A.

In part, the document reflects head posture laterally shifted to the left, some limitation in range of motion, reports of discomfort, ability to weight shift, skip and negotiate stair at will.

A recommendation is made to continue physical therapy in a one to one environment. Plan of care should include stretches, progressive resistive exercises, balance activities, and assistance into dynamic activities. Limitations will affect field of vision, posture in school, participation in gym activities and endurance in carrying school material evenly.

Report indicates that the student’s “…academic performance may be affected by her current deficits.” (A-3)

Service record of therapy sessions was submitted, which indicates delivery of physical therapy services to the student, and that goals have been met. (Ex C)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (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 C.F.R. § 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]).

IDEA directs that, in general, an impartial hearing officer'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). 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, but 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). 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 v. Pawling Cent. Sch. Dist., 427 F.3d 186, 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]). 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 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; 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]).

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]).

The IDEA defines a "child with a disability" as a child with a specific physical, mental or emotional condition, "who, by reason thereof, needs special education and related services" (20 U.S.C. § 1401[3][A]; see Educ. Law § 4401[1], [2][k]). OHI is defined, as relevant here, as:

having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that—

(i) Is due to such as . . . . . .; and

(ii) Adversely affects a child's educational performance.

(34 C.F.R. § 300.8[c][9]; see 8 NYCRR 200.1[zz][10]). Accordingly, a child with a disability having an OHI means "a child evaluated . . . as having . . . an other health impairment . . . and who, by reason thereof, needs special education and related services" (34 C.F.R. § 300.8[a][1]; see 20 U.S.C. § 1401[3][A]).

Whether a student's condition adversely affects his or her educational performance such that the student needs special education within the meaning of the IDEA is an issue that has been left for each state to resolve (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 66 [2d Cir. 2000]). Although some states elect to establish further, more explicit definitions for these terms, often through regulation or special education policy (see, e.g., Mr. I. v. Maine Sch. Admin. Dist. No. 55, 480 F.3d 1, 11 [1st Cir. 2007]; J.D., 224 F.3d at 66-67; Johnson v. Metro Davidson County Sch. Sys., 108 F. Supp. 2d 906, 918 [M.D. Tenn. 2000]), others do not and instead resolve the issue on a "case-by-case" basis (R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 944 [9th Cir. 2007]; see, e.g., Yankton Sch. Dist. v. Schramm, 93 F.3d 1369, 1375 [8th Cir. 1996]; Greenland Sch. Dist. v. Amy N., 2003 WL 1343023, at *8 [D.N.H. Mar. 19, 2003], aff'd 358 F.3d 150 [1st Cir. 2004], abrogated on other grounds by Forest Grove, 129 S. Ct. 2484). Cases addressing this issue in New York have followed the latter approach (Corchado v. Bd. of Educ., 86 F. Supp. 2d 168, 176 [W.D.N.Y. 2000] [holding that the effect of each child's particular impairment on his or her educational performance requires individual analysis as to whether the student's impairment necessitates special education]; Application of the Bd. of Educ., Appeal No. 10-005; Application of a Child Suspected of Having a Disability, Appeal No. 07-086; Application of the Bd. of Educ., Appeal No. 02-066; see N.C. v. Bedford Cent. Sch. Dist., 2008 WL 4874535, at *1-*2 [2d Cir. Nov. 12 2008]; Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282, 294 n.6 [S.D.N.Y. 2010]; see also A.J. v. Bd. of Educ., 679 F. Supp. 2d 299, 306-11 [E.D.N.Y. 2010]).

Testimony from indicated the student was able to complete all of her exercises independently and that although the student performs her tasks in school, she is not as willing at home. (T 56-57)

The parent offered no indication that the student was impacted educationally, except for the following: “Certainly, her field of vision, the posture in class, is going to affect her ability to track moving teachers, objects, whatever it is that might be involved in the classroom. discomfort for her to sit for a long time.” (T 97)

However, the parent also indicates that: “…I don't think that by the time it does interfere with her ability to learn at school, I think that'd be too late.” (T 106)

Parent hearing request, along with the parent testimony, indicate that there is no indication of present impact on the student’s education. Hearing request, in part, states that the student: “…has required continued to maintain her strength and flexibility so to prevent , visual problems, and possibly other related conditions that may affect her ability to succeed in school.” (Ex A-1)

Report of Dr. indicates that the student’s “…academic performance may be affected by her current deficits.” (A-3)

Parent request and doctor report of what may occur is not sufficient to classify the student as having a disability.

DOE Physical Therapy Annual Review Plan indicates “Full Participation” in all reported activities, and that all goals have been met. (Ex 1-1)

The evidence presented does not establish either that the student had limited alertness with respect to her educational environment or that her medical condition adversely affect her educational performance.

The evidence presented does not lead to the conclusion that the student's educational performance was adversely affected by her health conditions such that special education was required so as to warrant classification as a student with a disability.

I find that the student was properly declassified and no longer requires physical therapy in the school setting, as requested.

ORDER

The student has been properly declassified and is no longer considered a student with a disability.

Student is not entitled to receive from the Department of Education. Dated: October 3, 2012

_________________________________

DANIEL M. AJELLO, ESQ.

Impartial Hearing Officer

DA: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 AUGUST 6, 2012

PARENT

A Impartial Hearing Request, with Evaluation, 6/29/12, 4 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 29, 2012

PARENT

None

DEPARTMENT OF EDUCATION

1 Annual Review, 5/5/12, 2 pages

DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 12, 2012

PARENT

B IEP, dated 9/21/11, 8 pages C Attendance Records, 2011-2012, 6 pages

DEPARTMENT OF EDUCATION

None