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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 20, 2012
October 16, 2012
Actual Record Closed Date: November 15, 2012
Hearing Officer: Daniel Ajello, Esq.
Corrected
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 20,
2012
Attorney for the — Parents
Legal Assistant — Student
Mother — Student
DR., Department of Education Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 16, 2012
Attorney for the — Parents
Legal Assistant — Student
Mother — Student
DR., Department of Education Representative — DOE
Psychologist (Via Telephone) — DOE
INTRODUCTION
On August 10, 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.
On September 20, 2012, and October 16, 2012, a hearing was conducted. Appended to the record are lists of persons in attendance and the documents received in evidence.
On October 16, 2012, parent requested extension of the compliance date to allow for receipt of the transcript of the hearing, review of the transcript and submission of written closing statement.
On October 16, 2012, extension was granted, and allowance given to submit written closing statements. Parties were given until November 05, 2012 for submissions, and Actual Record Close Date (ARCD) was set as 11/05/2012. Compliance date was set as 11/22/2012.
Due to Hurricane Sandy, parent requested extension of the date of November 05, 2012 to submit a written closing statement. Request was granted, and allowance through November 15, 2012, was given for parties to submit written closing statements. Hearing officer advised the parties that the ARCD date would be set as November 15, 2012, and the compliance date would remain as November 22, 2012.
I note that Individualized Education Program (IEP) entered as Ex D was initially entered as dated May 28, 2012. Date of IEP was clarified by Department of Education (DOE) Exhibits 1 and 2, which indicated the correct date of the IEP meeting was indeed, May 14, 2012.
BACKGROUND
This matter was instituted by the impartial hearing request dated September 13, 2012 alleging that the Department of Education (DOE) failed to provide a Free and Appropriate Public Education (FAPE), for the student, on procedural as well as substantive grounds. Parent seeks related services denied at recent Individualized Education Meeting, of May 14, 2012. (Ex B 1, Ex D)
Student is
IEP of August 11, 2011 contained weekly related services relative to this proceeding as:
( ): 3 individual 30 minute sessions, and 2 individual 30 minute sessions;
): 1 individual 30 minute session, and 3 individual 30 minute sessions. (Ex E-13)
IEP of May 14, 2012 contained weekly related services relative to this proceeding as:
): 3 individual 30 minute sessions, and 1 individual 30 minute sessions, in a group of 5 students;
): 2 individual 30 minute sessions. (Ex E-13)
Student had been receiving outside therapy services via Related Service Authorizations (RSAs) of: 2 individual 30 minute sessions and 3 individual 30 minute sessions.
PARENT POSITION
Parent, through their attorney, Steven Goldstein (SG), seeks order for services included in IEP, dated August 11, 2011, which were discontinued at Individualized Education Plan (IEP) meeting of May 14, 2012. (Ex E & Ex D)
Specifically the services, presently being denied, include:
Related Service Authorization (RSA) for 3 weekly, individual, 30 minute, Sessions; and RSA for 2 weekly, individual, 30 minute, Therapy Sessions. Parent seeks: “…5 sessions per week of therapy (with at least 2 sessions per week in an outside setting), 4 sessions per week of (with 3 sessions per week in an outside setting), a finding of denial of FAPE and such further relief as the IHO deems just and proper.” (Ex III 3)
outlined the parent’s position in an opening statement:
Student “…as a history of and a documented need for a minimum of five sessions of therapy per week with two of those sessions being outside of the school setting so he's not missing too much of his academic time and so that he's able to take what he's learning in school, generalize it to other environments, and to reinforce everything that he's learning in school.” (T 28)
“…mother asked for those services during the IEP meeting. She was told that they were being rejected,…merely because of a new DOE policy saying that students who are getting placed in state-approved non public schools don't get services on the outside.” (T 29)
PARENT WITNESS SUE CHAN
Student’s mother, ), testified, the student is in his second year at . (T 72)
agrees with the classification of . (T 73)
reviewed her child’s early development, noting concerns as early as 12 months of age, she contacted her pediatrician, and child started early intervention at two years of age. (T 73-74)
The student began receiving after school in 2009. (T 76-77)
Last year the student received one session in school and three outside of school, through an RSA. Parent has a concern that if services were delivered in school the student would miss too much class time. (T 78-79, 103)
described the purpose of the outside sessions:
“…they have for some sensory integration and some sensory input for him. Also to work on his . He writes . He and to teach him how to write his letters and how to copy like sentences and copy from the board or book onto another page and also to like .
He also, sometimes the is a motivator for him when on his work or , they would put him into the because some days he . Then on his work, and . So they give him some input, and then he starts doing his work nicely afterwards.” (T 81-82)
Last year the student received three therapy sessions in school and two outside of school, through an RSA. (T 80-81)
described the outside therapy:
“…the therapist works on his and have more words and vocabulary, how to use his words more and languages, and try to help him with his expressive language. Also sometimes they do socialization, because two therapists will come together with each of their kids, and they try to do turn-taking, and I bring his ELA homework and phonics homework, and the teacher will meet with him and work with him on sounds and stuff and to just generalize all the stuff that he's learning from school in an outside setting.” (T
84-85) At the most recent IEP meeting tried to discuss, and have reflected on the IEP, the outside services, and JK advised her she was only there to talk about what took place in school. (T 86-88)
received the IEP and FNR. (T 89)
was not asked about the change to a group session of therapy. (T 92)
states that there was a discussion regarding the therapy mandate which resulted in the change in services. (T
93) testified that she did not have any additional information with her, but had additional information at home, that she would have provided, if requested. (T 94) believes services need to continue as in the previous year due to her child’s severe delay and minimal language. (T 96)
states that the outside providers recommend the continuation of the services they are providing for therapy. (T 96-98)
Parent sent a letter that she did not agree with the related service mandate of .
Parent did not receive a response. Parent would have entertained another meeting and would have consented to additional evaluations. (T 99-100, Ex C)
DEPARTMENT OF EDUCATION POSITION
Dr. ( ) presented the DOE position.
Student is attending his second year at the , classified with speech and language impairment.
Parents seek a continuation of related services, to which the DOE does not agree. DOE position is that the student is with his and related service needs could be met during the school day, through the recommended mandate. (T 24-26)
DEPARTMENT OF EDUCATION WITNESS JUDY KORMENDI
( ) presented her educational and professional background, testified as a school psychologist employed by the DOE, and was present at the May 14, 2012 IEP meeting. (T 32-32)
Student is , “…several where .” (T 34-35)
Student displayed issues. Minimum progress was noted in all areas. (T 35)
Student was in a program with 12 student, 2 teachers and 2 assistants. (T 35)
IEP of May 14, 2012 recommended the following related services:
: 3 weekly 30 minute, individual sessions, and 1 weekly 30 minute session in a group of five.
: 2 weekly individual 30 minute sessions. (T 37)
At the meeting a discussion took place regarding the student academically, the social emotional component and the physical motor component, team identifies strengths and weaknesses in each area, and weaknesses are addressed with goals for each weakness. (T 38)
A discussion of whether the services should be provided in school or after school did not take place at the meeting. Though: “At the very end parent brought up and mentioned that there are services being provided outside of school, and that was the time that I responded that the discussion is not whether there are services inside or outside of school so much as what we have discussed all along is what his needs are, identifying those needs and the goals that need to be addressed and whether or not these services as mentioned, as we discussed on the IEP, would be sufficiently covering them.” (T 39, Ex D)
The team reviewed documentation from the school, but did not have any documentation from the outside providers. (T 39-40)
continued to testify that she was not concerned with the provision of outside services, instead she was addressing the student’s need for therapy in general, and the team agreed to the recommendation contained in the May 14, 2012 IEP. (T 42-45, 63, Ex D)
again stated that a discussion regarding outside of school services came up with the parent at the end of the meeting, and parent did not have any documentation regarding the outside services. (T 48-49)
was not aware of the issuance of RSAs for the student in previous years. (T 49)
Regarding , the recommendation for two weekly sessions, and goals for the IEP came from the school, and the OT. (T 52-56)
IEP of August 11, 2012, contained an goal of having the student correctly print
26 of the 26 lower case letters. (E 10)
IEP of May 14, 2012, contained an goal that the student would correctly print 20 of the 26 lower case letters. (Ex D 6)
Witness did not recall any discussion regarding the change in this goal. (T 57)
IEP of August 11, 2011, contained a recommendation of Therapy 5 times weekly, individual 30 minute sessions. (E 13)
IEP of May 14, 2012, contained a recommendation of Therapy 3 times weekly, individual 30 minute sessions, and one time weekly in a group of five, for thirty minutes. (Ex D 14)
Witness was asked who recommended the change and responded: “…recommendations of the speech came from the speech therapist, I guess at the school.” (TR 58)
IEP of August 11, 2012, contained one Therapy goal. (E 8-9)
IEP of May 14, 2012, contained five Therapy goals. (Ex D 12-13)
Witness was asked if the increase of goals was discussed in relation to the decrease in therapy sessions: “Not in those words. There were discussions about goals, not about the changes that go from last year to the next year that I can remember, no...I don't remember, discussing changes from one IEP to the other.“ (T 61-62)
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 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 student is offered a FAPE 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]).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 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] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability enabling him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; 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. 02-014; Application of a Child with a Disability, Appeal No. 01095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
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).
APPROPRIATENESS OF IEP OF MAY 14, 2012
Previous IEP of August 11, 2011 indicated services that were written and delivered to the student to allow for outside service delivery. This is confirmed not only by parent testimony, but also by the manner in which services were delineated in the IEP itself to separate in school and outside services. No evidence or testimony contradicted the appropriateness of the services indicated in this particular IEP, or the student need for the manner in which they were delivered. (E 13)
At the May 14, 2012 IEP meeting the services were altered. (Ex D)
Testimony shows that the services were altered, without consideration of the student’s individual need for outside services.
testified that a discussion of whether the services should b provided in school or after school did not take place at the meeting, thought the parent brought up this issue at the meeting. (T 39, Ex D) The team should have been aware of the previous IEP and service delivery. The team did not have, or seek, any documentation from the outside providers. It is illogical that the opinion of the outside provider would not be sought, or considered, when this person was delivering 80% of the service. (Ex E 13, T 39-40)
testified that she was not concerned with the provision of outside services, instead she was addressing the student’s need for therapy in general, and the team agreed to the recommendation contained in the May 14, 2012 IEP. However, the needs of the student are to be considered individually, and should at least consider how they are delivered, and why that is or is not appropriate for the student. (T 42-45, 63, Ex D)
The team should have taken some action to address the lack of the OT provider attendance, or input. Discussion should have taken place to address issues relative to OT. One such issue is that fact that the services were altered in the current IEP, however, the performance of the one goal from the previous IEP was reduced. (T 57, Ex E 8-9 & D 6 - 8)
Regarding the August 11, 2011 IEP contained one partial, unclear goal, and the current May 14, 2012 IEP contained five goals. It is unclear how the team could have determined what services were appropriate going forward, when no clear indication of the current goals begin addressed by the student were present, or discussed. At the very least, information appears to be lacking that would be needed to ascertain the student’s current speech needs. Again, information from the outside provider would have been helpful in making any final determination.
Regarding is unclear as to where the speech goals came from and testified : “…recommendations of the speech came from the speech therapist, I guess at the school.” (TR 58)
No explanation is given as to how the current IEP included five goals, when the previous IEP only had one partial, unclear goal. (Ex 8-9 & D 12-13)
does not recall any discussion relative to these changes. (T 61-62)
testified that the student is challenged on many levels, far academically, displayed nd minimum progress was noted in all areas. (T 34-35)
At hearing the parent provided, and reports of the outside providers, each indicating their services should be continued. These documents are available to the DOE and could have been requested prior to, or at the IEP meeting itself. (Ex F 2 & Ex G 4)
Parent submitted previous RSAs indicating the delivery of outside services. These documents were also certainly available to the CSE team. (Ex H & I)
Parent participation in the meeting was limited, as parent could not address what she believed to be appropriate services for her child. clearly indicated that she could not address these concerns of the parent, and in the end did not consider them at all.
I find that the IEP, dated May 14, 2012, insofar as it relates to the delivery of services, was not designed to meet their unique needs of the student and prepare this for further education, employment, and independent living. The recommendation was not based upon the unique needs of the student.
The IEP of May 14, 2012 failed to provide a FAPE for the student.
PARENT PARTICIPATION IN THE MAY 14, 2012 IEP MEETING
The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415[b][1]). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008] ["A professional disagreement is not an IDEA violation"]; Sch. for Language and Communication Development v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] ["Meaningful participation does not require deferral to parent choice"]; Paolella v. District of Columbia, 2006 WL 3697318, at *1 [D.C. Cir. Dec. 6, 2006]). The consideration of possible recommendations for a student, prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting (see T.P. 9 v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]; Nack v. Orange City Sch. Dist., 454 F.3d 604, 610 [6th Cir. 2006] ["predetermination is not synonymous with preparation"]; Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 857-60 [6th Cir. 2004]; B.O. v. Cold Spring Harbor Cent. Sch. Dist., 807 F. Supp. 2d 130, 136 [E.D.N.Y., 2011]; A.G. v. Frieden, 2009 WL 806832, at *7 [S.D.N.Y. Mar. 26, 2009]; P.K, 569 F. Supp. 2d at 382-83; Danielle G. v. New York City Dep't of Educ., 2008 WL 3286579, at *6-*7 [E.D.N.Y. 2008]; M.M. v. New York City Dep't of Educ., 583 F. Supp. 2d 498, 507 [S.D.N.Y. 2008]; W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 147-48 [S.D.N.Y. 2006]; Application of the Dep't of Educ., Appeal No. 11-051; Application of the Dep't of Educ., Appeal No. 10-070; see also 34 CFR 300.501[b][1], [3]; 8 NYCRR 200.5[d][1], [2]). A key factor with regard to predetermination is whether the district has "an open mind as to the content of [the student's] IEP" (T.P., 554 F.3d at 253; see M.R. v. Scarsdale Union Free Sch. Dist., 615
F. Supp. 2d 283, 294 [S.D.N.Y. 2009]).
The rights off the parent of such student were not protected at the most current IEP meeting. Parent testimony showed her clearly being able to understand and consider the needs of her child, and present information relative to the outside services, that impacted upon her child. Discussions of her concerns were not allowed, at least insofar as the outside services were concerned, denying her an opportunity to participate in the IEP meeting, in a meaningful manner.
I also note that the parent member participant was also absent at the 05/14/2012 IEP meeting. Although not required by the IDEA (20 U.S.C. § 1414[d][1][B]; see 34 CFR 300.321), in some circumstances, New York State law requires the presence of an additional parent member at the CSE meeting that formulates a student's IEP (Educ. Law § 4402[1][b][1][a]; 8 NYCRR 200.3[a][1][viii]; see J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 647 [S.D.N.Y. 2011] [noting that the absence of an additional parent member does not constitute a violation of the IDEA]; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 293-94 [S.D.N.Y. 2009], aff'd 2010 WL 565659 [2d Cir. Feb. 18, 2010]; Bd. of Educ. v. R.R., 2006 WL 1441375, at *5 [S.D.N.Y. May 24, 2006]; Bd. of Educ. v. Mills, 2005 WL 1618765, at *5 [S.D.N.Y. July 11, 2005]; Application of the Dep't of Educ., Appeal No. 11-136; Application of a Student with a Disability, Appeal No. 11-100; Application of a Student with a Disability, Appeal No. 11-042).
In the present case, such a member may have been able to contribute to the meeting process and alleviate some parent concerns or help effectuate a full discussion of relevant issues, such as the outside services, which were not addressed.
APPROPRIATE SPEECH AND OT SERVICES
At least as late as August 2011, the services sought by the parent were agreed to by the DOE. (Ex E 13, H & I)
Parent documentation also indicates services should continue. (Ex F 2 & Ex G 4)
Doctor and provider reports provide specific information relative to the recommendation, which parent attorney summarized in his closing brief.
Regarding , M.S., CCC-SLP of ), proved a report including that she: “…strongly urges the IEP team to continue…services at at the current mandate ” and that the student “…requires more services in an outside placement and a reduction in any speech services would be detrimental to reaching his goals…”. (Ex F-10)
Doctor letter agreed with the recommendation of . (Ex L 1)
Regarding doctor letter indicated a continuation of the current service of four weekly sessions. (Ex K)
Additionally, Occupational Therapy Progress Report completed by MSOTR/L of ( ) includes: “…it is highly recommended…continue services at his current full mandate of 4x30 in a setting to address these deficits and decrease the risk of any regression of learned skills” (Ex G-4).
All of the information provided by the outside providers and Doctor, as well as parent input, could have, ad should have been sought by the team in order to make an individualized and proper recommendation.
I find that the following services must be provided to the student in order for the student to receive a FAPE:
services of four weekly, individual 30 minutes sessions, and Speech service of five weekly individual 30 minutes sessions.
Of these sessions Related Service Authorization (RSAs) are to be issued as follows:
: 3 weekly, individual, 30 minute Sessions; and
: 2 weekly, individual,[30] minute Sessions.
ORDER
1. For the 2012-2013 school year the DOE shall provide, for the student, services of four weekly, individual 30 minutes sessions, and of five weekly individual
2. Of these sessions Related Service Authorization (RSAs) are to be issued as follows:
: 3 weekly, individual, 30 minute Sessions; and
: 2 weekly, individual, 30 minute Sessions.
3. The DOE shall immediately issue necessary forms to the parent to authorize payment to chosen parent’s chosen provider, and pay said provider, within thirty days of DOE receipt of properly invoiced services provided.
4. This Order is subject to appeal and review by the State Review Officer. Dated: November 20, 2012 Corrected Date: November 26, 2012 (Correction made to cover page and header)
________________________
DANIEL AJELLO, ESQ.
Impartial Hearing Officer DA;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
A. Request for Pendency Hearing, dated 09/13/2012, 2 pages
B. Impartial Hearing Request, dated 08/08/2012, 6 pages
C. Letter to New York City Department of Education, dated 06/01/2012, 1 page
D. Individualized Education Plan, dated 05/14/2012, 21 pages
E. Individualized Education Plan, dated 08/11/2011, 14 pages F Update Reports, dated 06/2007 to 05/2012, 10 pages
G. Progress Report, dated 05/2012, 5 pages
H. Related Service Authorization, dated 09/2011, 1 page
I. Related Service Authorization, dated 07/2012, 1 page J FNR, 5/22/12, 1 page K Doctor's letter, 7/9/12,[2] pages L Doctor's letter, 10/20/11, 1 page M Related service progress report, 1/12/11,[1] page
DEPARTMENT OF EDUCATION
Footnotes
[30] minutes sessions.
[1] Notice of IEP meeting, 2 pages
[2] IEP attendance sheet, 5/14/12, 1 page IMPARTIAL HEARING OFFICER I Subpoena, 9/21/12, 2 pages 22 II Pendency order, 9/24/12, 8 pages III Parent Closing Brief, dated 11/15/2012, 11 pages