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: September 7, 2012

Actual Record Closed Date: September 7, 2012

Hearing Officer: Jeffrey Schiro, Esq.

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

Parents

Interpreter — Student

District Representative, CFN (via telephone — DOE

I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the parent, who appears in this matter pro se, in a due process complaint notice dated July 6, 2012. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to continue to provide some of the student’s therapies ( ) outside of school via related service authorizations (“RSAs”) (Exs. IHO-I, P-G at 1).^[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).

II. PROCEDURAL HISTORY

I was appointed by the DOE to hear this matter on July 10, 2012 (R. 16). The resolution session period ended on August 6, 2012 without an agreement (R. 17). See 8 NYCRR § 200.5(j)(2). A pre-hearing conference with the parties was held on August 10, 2012 to clarify the hearing issues and set a date for the hearing (R. 18). See 8 NYCRR § 200.5(j)(3)(xi). A hearing was held on September 7, 2012. Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

At the time of the September 7, 2012 hearing, the student was old and educationally classified as having a (Ex. SD-1 at 10).^[2] For the current school year (2012/13), the student participates in a general education (R. 20; Ex. SD-1 at 7). The student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing (Exs. IHO-I, P-G). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).

The student’s primary language spoken at home is . The student is exposed to English at school, in therapy and in the community (Ex. P-A at 1).

A /English psychological evaluation of the student was conducted on November 11, 2010. On the WPPSI-III, the student’s measured within the average range, with overall verbal reasoning skills within the and performance (nonverbal reasoning) skills within the average range. An administration of the VABS-II with the student’s mother suggested that, at that time, the student’s adaptive level in the domains of communication, , and were in the , while his and play and leisure skills were within the average range. Those scores resulted in an adaptive behavior composite score within the moderately low range (Ex. SD-1 at 1).

During the 2011/12 school year, the student attended a at the (Ex. P-E at 1). The student received ten (10) hours per week of special education itinerant teacher (“SEIT”) services at school at the recommendation of the DOE’s Committee on Preschool Education (“CPSE”) (Ex. P-E at 1). The student received therapy services outside of school, two (2) times per week for thirty (30) minutes per session, beginning in April of 2011 (Exs. P-A at 1, P-B at 1, P-E at 1). The student received physical therapy services beginning in September of 2011 at a center which had multiple pieces of equipment (Exs. P-C, P-E at 1)

In a February 4, 2012 progress report, Ms. , the student’s pathologist stated that the student’s was with difficulties associated with exposure to two (2) languages, attention and the inability to process large amounts of language given at one time. In contrast, the student displayed delays in the areas of vocabulary and word retrieval skills, , organizing this thoughts for expression and skills in English. Ms. recommended that the student “continue to receive therapy in a combination of settings to address different goals. Individual therapy should address vocabulary, word retrieval, language production and articulation goals. therapy in a dyad with a peer would allow learning and practicing , and in a functional and structured environment” (Exs. P-A at 3, P-B at 1, P-H at 3).

On a February 14, 2012 progress report, Ms. , the student’s physical therapist, administered the Peabody Developmental Motor Scales - Second Edition. The student’s stationary skills measured within the poor range, locomotion was within the average range and object manipulation was within the , resulting in a total gross motor quotient within the poor range (Exs. P-D at 1-2, SD-1 at 1).

Ms. also stated that the student was able to follow simple one and two step directions, along with and manual body positioning, due to “decreased comprehension of certain .” The student was able to . He had . He had . The student “ with cuing to correct and maintain upright posture.” He also was described as requiring “assistance for negotiating obstacles due to decreased attention to his environment and in relation to objects around him. He had “ , and he had a “ and demonstrate increased falls while moving too quickly and not focused on task.” An evaluation was recommended to further evaluate upper body skills and (Exs. P-D at 3, P-H at 3).

At a meeting held on March 30, 2012, the CSE recommended that, beginning on September 5, 2012, the student receive direct special education teacher support services (“SETSS”) for math and English/Language Arts (“ELA”) in a general education classroom. The CSE also recommended that the student receive related services of: individual therapy, two (2) times per week for thirty (30) minutes per session in a separate location; individual physical therapy, two (2) times per week for thirty (30) minutes per session in a separate location; individual , one (1) time per week for thirty

(30) minutes per session in a general education classroom; individual , one (1) time per week for thirty (30) minutes per session in a separate location; and individual counseling, one (1) time per week for thirty (30) minutes per session in a separate location (Ex. P-H at 10, 15).

On an evaluation, conducted on or about May 14, 2012, the student displayed systems, which affected his . The student also with control. He had difficulty with . The student’s lack of attention and focus needed for group sessions appeared to require individual occupational therapy sessions (Exs. SD-1 at 1, SD-3).

On June 1, 2012, the CSE reconvened and reviewed the results of the May 2012 occupational therapy evaluation. The CSE continued to recommend that, beginning on September 5, 2012, the student receive direct SETSS for math and ELA in a general education classroom and related services of: , two (2) times per week for thirty (30) minutes per session in a separate location; individual physical therapy, two (2) times per week for thirty (30) minutes per session in a separate location; individual occupational therapy, one (1) time per week for thirty (30) minutes per session in a general education classroom; individual occupational therapy, one (1) time per week for thirty (30) minutes per session in a separate location; and , one (1) time per week for thirty (30) minutes per session in a separate location (R. 20-21; Exs. SD-1 at 1, 7, 10, P-H at 10, 15).

In a June 9, 2012 progress report, Ms. (PT) recommended that the student receive center-based therapy to address his needs (Ex. P-C).

In a June 11, 2012 progress report, Ms. , the student’s SEIT, stated that the student had shown improvement in the area of development. The student, however, continued to struggle with forming sentences, answering “wh” questions, and participating in group discussions. As to his development, the student’s SEIT stated that he frustrated (Ex. P-E at 1).

In a letter dated August 21, 2012, the student’s physician, , M.D., stated that the student is and has difficulty with transitions. Due to these conditions, Dr. recommended that the student remain with the same therapists ( therapy and physical therapy) in the 2012/13 school year that he was paired with during the 2011/12 school year (Ex. P-F)

IV. POSITIONS OF THE PARTIES

A. The DOE

At a duly constitution meeting held on June 1, 2012, the CSE recommended, for the 2012/13 school year, that the student receive SETSS, therapy, physical therapy, and , delivered using both push-in and pull-out models of instruction. A final notice of recommendation designated as the site of the student’s program. has full-time related service providers capable of implementing all of the student’s recommended therapies. The recommended related services can be provided to the student with minimal disruption to his education (R. 20-29).

B. The Parent

The provision of recommended related services in a separate location, i.e., pullout, will disrupt the student’s education and the transitions to and from class will cause him anxiety. Rather than pull-out related services, the DOE should issue RSAs to the parent, as it did when the student was in preschool, for the provision of related services by last school year’s providers which will minimize disruptive transitions and provide continuity of instruction. As all of last school year’s providers had an excellent rapport with the student and possessed the necessary equipment to make the recommended therapies successful, the student should continue to receive therapies from them via RSAs rather than pull-out services (R. 29-35; Exs. IHO-I, P-G).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. General Legal Standards

Two purposes of the IDEA 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.^[3] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. 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. See 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 and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). 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. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).

The 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. See 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.” See 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). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See 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. 428 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also 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.3e 1114, 1120 (2d Cir. 1997). quoting Rowley, 458. .S.at 192

The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 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); 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. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8 YCRR § 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 00.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

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. See N.Y. Educ. Law § 4404(1)(c).

B. Substantive Appropriateness of Proposed Program

As noted earlier, the 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. See 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.” See Rowley, 458 U.S. at 203. 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), quoting Rowley, 458 U.S. at 192.

There is no dispute about the student’s need for the recommended related services. The primary issue before me is whether the manner in which some of the student’s recommended related services are to be provided, i.e., during the school day and away from the student’s class, is appropriate. The student is recommended to receive therapy outside the classroom twice a week for thirty (30) minutes, physical therapy outside the classroom twice a week for thirty (30) minutes, one time per week for thirty

(30) minutes, and one time per week for thirty (30) minutes. The balance of the student’s recommended program and services are to be provided inside the classroom using the push-in model (R. 22; Exs. SD-1 at 7, P-H at 10).

I find that the DOE has met its obligation under federal and State law to provide an appropriate educational program to the student. There was no evidence offered at the hearing that the student’s academic performance has been adversely affected by his absence from class , and . Indeed, at the time of the September 7, 2012 hearing, the student had just commenced his recommended at . The potential disruption of pullout related services to the student’s instruction is minimal. has, reportedly, a thirty-five

(35) period week. Based on the student’s IEP, he will be pulled out for a total of six (6) periods weekly for therapy, , and (R. 24, 27-29; Exs. SD-1, P-H).

Alternatively, the parent argues that the student should continue to receive therapies from his prior providers via RSAs rather than pull-out services given the good rapport they had with them and the anxiety he experiences with transitions and meeting new people (Exs. IHO-III, P-G). Generally, the CSE may, in its discretion, select qualified school district employees to provide related services to its students. See Application of a Child with a Disability (Floral Park-Bellrose Union Free Sch. Dist.), Appeal No. 90-4 (SRO Oct. 4, 1990). The CSE is not required to offer an explanation for having a new service provider to provide service during a new school year. See Application of a Child with a Disability (Bd. of Educ. of the City of New York), Appeal No. 97-86 (SRO July 31, 1998). Parental preference for a particular related service provider is not determinative of whether recommended related services are appropriate. See Application of a Child with a Disability (Half Hollow Hills Cent. Sch. Dist.), Appeal No. 94-12 (SRO May 31, 1994); Application of a Child with a Handicapping Condition (Ellenville Cent. Sch. Dist.), Appeal No. 91-19 (SRO Sept. 12, 1991).

While I note that the student reportedly made progress in the therapies he received during preschool, and that Dr. recommended that the student continue to receive physical therapy and therapy from his preschool providers via RSAs, I find that that information alone represents an insufficient basis for concluding that the services provided by the CSE are inadequate or inappropriate (Exs. SD-1, P-A, P-D, P-E, P-F, PG, P-H).

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OFACT, IT

IS

HEREBY ORDERED THAT:

(1) the parent’s claim that the student has been denied a free appropriate public education based on the recommended provision of some of the student’s related services in a separate location (pull-out model) is DISMISSED; and

(2) the parent’s request for the provision of some or all of the student’s related services via RSAs is DENIED. Dated: September 19, 2012

JEFFREY J. SCHIRO, ESQ.

Impartial Hearing Officer

JJS:gc

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 SEPTEMBER 7, 2012

PARENT

A. Progress Report, 2/4/12, 3 pgs.

B. Letter from (with attachment), undated, 12 pgs.

C. Physical Therapy Progress Report, 6/9/12, 1 pg.

D. Progress Report from Related Service Provider (Physical Therapy), 2/12/12, 4

pgs.

E. SEIT Service Student Progress Report, 6/11/12, 2 pgs.

F. Letter from , MD, 8/21/12, 1 pg.

G. Letter from Parent, 8/22/12, 2 pgs.

H. Individualized Education Program (IEP), 3/30/12, 17 pgs.

I. Letter to Parent from DOE, 7/2/12, 1 pg. (double sided)

DEPARTMENT OF EDUCATION

1. Individualized Education Program (IEP), 6/1/12, 12 pgs.

2. Consent for Testing (signed), 2/10/12, 1 pg.

3. Elementary School Tracking Form & Evaluation, 5/31/12, 8 pgs.

4. Classroom Observation, undated, 1 pg.

IMPARTIAL HEARING OFFICER

I. Due Process Complaint Notice/Impartial Hearing Request, 7/6/12, 2 pgs.

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”

[2] means a communication disorder, such as stuttering, impaired articulation, a or a , that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(11).

[3] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.